1988 PLP r (PCRLJ)

Ss. 4 & 5--Penal Code (XLV of 1860), Ss.409, 467, 468 & 471- Automatic transfer of case--Cases under scheduled offences pending in other Courts, now falling under exclusive jurisdiction of Special Court--Provisions of Ordinance (IX of 1984), held, made only declaration that cases `stood transferred to Special Court but did not grant any power directly or impliedly to requisition record of such cases from Courts refusing to comply with said command of law--Such power was essentially revisional power which had to be conferred expressly and could not be considered to be available impliedly. (g) Offences in Respect of Banks (Special Courts)-Ordinance (IX of 1984)-- --Ss. 4 & 5--Penal Code (XLV of 1860), Ss.409, 467, 468 & 471--Taking cognizance of, whether sup motu--Scheduled offences--Special Court, held, could only take cognizance of scheduled offences either on police report or on complaint but not suo motu on its own knowledge or on miscellaneous application by any party. Syed Niaz Ali Shah, Special Prosecutor for the State. Muhammad Nawaz Kharal for Respondents. This order will dispose of three miscellaneous applications, namely, Criminal Miscellaneous No. 83 of 1985 for requisitioning of case titled State v. Nazir Ahmad etc. Criminal Miscellaneous No. 84 of 1985 for requisitioning of case titled State v. Basharat Ahmad, and Criminal Miscellaneous No. 85 of 1984 for requisitioning of case titled State v. Rana Muhammad Tahir, Shabbir Ahmad and Basharat Ahmad; pending in the Court of Mr. Munir Ahmad Khan Leghari. City Magistrate, Faisalabad, appropriating the said three cases to the list of pending cases of this Court and for trial of the accused persons of the said three cases by this Court under the Offences in Respect of Banks (Special Court) Ordinance, 1984 (Ordinance IX of 1984).

2. From the perusal of the facts of the cases constituting the said three challans, it appears that offences allegedly committed in these cases are scheduled offences as defined in section 2(d) of Ordinance IX of 1984. In respect of said offences, this Court has the exclusive jurisdiction since 23-2-1984 to try the accused persons: If, therefore, the learned Magistrate is continuing, to hold trial in these cases although according to subsection (3) of section 4 of the said Ordinance, the said cases stood transferred to this Court the proceedings taken by the Magistrate are without jurisdiction and are under section 530(p), Cr.P.C. void or in other words nagatory and ineffectual or nullity and can be said to be non-existent in the eye of law as held in Khuda Bakhsh v. Khushi Muhammad P L D 1976 SC 208 on the basis of Yusuf Ali Mullah Noor Bhoy v. The King P L D 1949 PC 108 do not require to be set aside and can just be ignored.

3. The question, however, is whether I could have summoned the files of said three cases containing the said proceedings for the purpose of seeing whether they are not being taken without jurisdiction. Initiation of any act on my part to treat them as nullities would depend for its validity on the legality of my act to summon the files of said cases for that purpose. In other words the crucial question now involved in these cases is whether this Court which is the trial Court for these cases has any power to requisition the said cases from another trial Court for the purpose of seeing whether proceedings being taken by the other trial Court in cases pending before it are without jurisdiction and in case it (this Court) finds that the exclusive jurisdiction in the said matters whether it can detain the files of the cases in question with it and hold trial of the accused in those cases itself. I do not think that this Court has that power. Of course it has the power to requisition files from other trial Courts for the purposes of trying accused and deciding cases pending in it but it has no jurisdiction to call for the record of cases from said trial Courts for the purpose of seeing that they are not trying cases relating to scheduled offences over which they have no jurisdiction. That power is exclusive to a Court of revision and is not available to this Court which is meant solely for holding speedy trial of persons accused of scheduled offences as shown by the preamble to the said Ordinance.

4. Syed Niaz Ali Shah, Special Prosecutor has submitted that it has been given in the said preamble, that-this Ordinance has been promulgated, besides speedy trials, for matters connected therewith or incidental thereto also and this Court has power to summon the files of said cases on account of having power to deal with matters connected with or incidental to the speedy trials. I have considered that question. The power to requisition cases from other trial Courts for the said purpose is decidedly not a matter connected with speedy trial', of a case pending before this Court. As for the expression, 'matters incidental to the speedy trial it visualizes incidents of a trial and the word 'incident' has been shown in Wharton's Law Laxicon to mean a thing necessarily depending upon, appertaining to or following another which is more worthy. The act of requisitioning a case from another trial Court for the purposes of seeing that it is, not being tried by that Court without any jurisdiction vested in it, does not appear to me to fall within anyone of the said categories of the three meaning, assigned to the said word. In State of Orissa v. Chahabai Ghelbai s Co. A I R 1961 SC 284 the procedure for disposal of an appeal was held to include as necessary incidental matter, the filing of an appeal on a proper fee. Again in M. Muhammad Ali v. Dr.Ramadon A I R 1966 Mad. 441 it was held that incidental or consequential orders are those which follow as a matter of course, being necessary complements to the main order passed without which the latter order would be incomplete or ineffective such as directions as to refund of fines realized from acquitted persons or as to restoration of compensation, amounts paid under section 250, Cr.P.C. on reversal of acquittals or order for disposal of property. In other word` incidental jurisdiction is corollary to the main jurisdiction. I do no think that act of requisitioning cases from other trial Courts for the said purpose falls within the ambit of the meaning assigned to the said words in these two decisions also. The preamble gives the purpose and not any power such as the one which has been attributed by the learned Special Prosecutor to this Court. The power has to be found within the four corners of the actual provisions of the statute which contains the preamble and that statute which in the present case, as already stated, is Offences in Respect of Banks (Special Courts) Ordinance, 1984 (IX of 1984) does not contain any such provision. The preamble states that the said statute is being promulgated for the purpose of speedy trials of cases of scheduled offences and matters connected therewith or incidental thereto. The power to call for record of cases and appropriate the said cases to one's own file does not follow as a natural consequence from the object of speedy trial of cases given in the said preamble inasmuch as the speedy trial can be held only of cases which are in physical custody .of the Court and not of cases which though legally belonging to this Court on account of their having been transferred to this Court due to operation of law, had not yet, in actual fact, been received in this Court. The power to call for record of such cases is not connected with or incidental to a speedy trial. I may say it is wholly extraneous to their trial as the trial begins when case file is available in the Court and the Court is seized of the corpus of the said case.

5. It is next contended by Syed Niaz Ali Shah, Special Prosecutor, that Ordinance IX of 1984 has conferred exclusive jurisdiction on this Court to try persons accused of scheduled offences, and therefore, this Court has implied power to take all such steps as are necessary to ensure that the said jurisdiction is not usurped by any other Court . The said power alleged by learned Special Prosecutor to be ancillary or incidental to the exclusive jurisdiction does not appear to me to flow out of or follow from or be dependant upon the said exclusive jurisdiction conferred on this Court. I have gone through monograph 'Implied Powers and Obligations on page 361 of Maxwell on Interpretation of Statutes 1959 Edition. It is true that as provided there when an act confers a jurisdiction, it impliedly also grants power of doing all such acts or employing all such means as are eventually necessary to its execution, but the power so available should arise naturally out of and should be necessary for the effective exercise of, the original jurisdiction, for instance to grant stay when the statute granting power to hear an appeal is silent in that regard. However, by no stretch of imagination, the exclusive jurisdiction conferred on this Court to try persons accused of scheduled offences can be said to make it essential for this Court to requisition cases from other trial Courts in order to see the legality of proceedings being taken by the said trial Courts. The jurisdiction to try cases of scheduled offences pending before this Court is fully exercisable without requisitioning cases from other Courts for the said purpose. The doctrine of 'implied power' cannot be stretched so as to embrace within its ambit supervisory or revisional jurisdiction over other trial Courts. That power has to be expressly conferred and cannot be assumed by implication to be available to this Court. This Court is the creature of Ordinance IX of 1984. It cannot travel beyond the four corners of the said statute which had created it. According to the said statute, it is a trial Court and nothing more and does not have jurisdiction of that nature over' other trial Courts.

6. It is next contended by Syed Niaz Ali Shah, Special Prosecutor, that challans of these cages stood filed in the Court of learned Magistrate before the promulgation on 23-2-1984 of Ordinance IX of 1984 and by virtue of subsection (3) of section 4 of the said Ordinance, these cases which on the face of it related to scheduled offences stood transferred to this Court w.e.f. 23-2-1984, the date of promulgation of the said Ordinance and in order to guard against the wrongful act of other trial Courts in retaining the said cases on its own file and not sending the same to this Court for trial, this Court has implied power to call for said cases in order to see whether the said trial Courts are not holding trial without any jurisdiction vested in them. I have given my serious thought to that question too but am afraid, I cannot accept the same. Under the doctrine of 'implied power or jurisdiction' the assumption of implied incidental power by a Court of law or an authority is dependent upon existence in the said Court or authority of a main power or jurisdiction granted to it by the statute. According to monograph 'Implied Power and Obligation' appearing on page 350 of Maxwell on Interpretation of Statutes 1962 Edition, it is only where an Act confers a jurisdiction that it also impliedly grants the power of doing all such acts or employing such means as are essentially necessary to its execution. However, the provision in Ordinance IX of 1984 to the effect that cases of scheduled offences pending in other Courts stand transferred to this Court is a provision making only a declaration of the legal position that such cases stand transferred to this Court. and is not a provision granting any power to this-Court for due execution of which implied power to requisition the record of such cases (in order to see whether the other trial Courts are not refusing to comply with the said command of law, and are sitting over such cases without any jurisdiction vesting in them) should be considered to be available. The main 'jurisdiction to try cases of scheduled offences pending before it speedily for which this Court had been created is fully exerciseable without such power. Furthermore, this Court has been given no revisional or even supervisory jurisdiction over other trial Courts. The submission of learned Special Prosecutor that in order to see that law of automatic transfer of cases enacted in this provision is vindicated and obeyed, this Court has implied power to requisition such cases from other trial Courts for the said purpose is in total disregard of the obvious circumstance that such a power is essentially a revisional power which has to be expressly conferred on a Court and- cannot be considered to be available to it by implication. The law giving authority never gave that power to this Court in the said statute and according to the accepted principles of law, this Court cannot supply the said omission which appears to be intentional and wilful. I quite agree that subsection (3) of section 4 of the said Ordinance which provides that all cases of scheduled offences stand transferred to this Court w.e.f. 23-2-1984 contains an implied command of law to other trial Courts to send such cases to this Court without any loss of time but it does not even by implication give any power to this Court to call for the record of cases from other trial Courts for the purpose of seeing the legality of proceedings being taken in the said cases in the said trial Courts. It is true that it is the duty of the other trial Courts to obey the said command of law and send the cases of scheduled offences to this Court but if the said trial Courts .ace not obeying the said command of law there is nothing which this Court can do in the matter. However, the State and the complainant have remedies open to them to which they can take resort. They may point out the said circumstance to the Presiding Officers of the said Courts by applications to the said effect and get the necessary relief from them and if they do not succeed they may approach the revisional authority for the said relief or the High Court in its extraordinary jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, but they cannot be allowed to use this Court as a substitute for the said forums as it has absolutely no power to grant the said relief to them.

7. Apart from the above, according to subsection (1) of section 5 of the said Ordinance, this Court can take cognizance of cases either on police report or on a complaint and has not been given suo motu power of taking cognizance of cases relating to scheduled offences either on its own knowledge of the matter or on a miscellaneous application filed by a party.' For that reason too, it has no power to requisition cases of scheduled offences from other trial Courts and take them on its own file. This Court is essentially ay trial Court of equal jurisdiction and cannot arrogate to itself the power to requisition cases from other trial Courts for the said purpose and appropriate them to the list of cases to be tried by it which power does hot appear to have been given to it even by implication by the said statute.

8. In the view which I have taken above, I am fortified by weighty observations made by a Division Bench of the Karachi High Court, consisting of Mr. Justice B.Z. Kaikaus (the then Judge of the High Court of West Pakistan) and Mr. Justice Rahimbux P. Munshi in Jars Muhammad v. The State P L D 1959 (W.P.) Kar.

40. In that case a first class Magistrate had dismissed the application for permission to withdraw a case against Taqi Ali Shah, a Custom inspector and his two constables for offence under section 392, P.P.C. which (application) had been filed on the grounds that firstly the case fell under section 5 of the Prevention of Corruption Act, 1947, secondly, that in any way, sanction under section 197, Cr.P.C. was lacking. Taqi Ali Shah then moved learned Sessions Judge of Dadu by a revision application against the order of the Magistrate. The learned Sessions Judge, Dadu happened to be the Special Judge under Criminal Law Amendment Act, empowered to try cases under the Prevention of Corruption Act, 1947. One of the two orders which the said Sessions Judge passed in this revision was that of transfer of the said case to his own Court on the ground that It was a case under section 5(2) of the Prevention of Corruption Act which he alone was entitled to try as a Special Judge. Jan Muhammad filed a revision against that order in the High Court, Karachi. The said observations were made in the order accepting the revision. However, before I quote the relevant observations made in that order passed on this revision I must state the law then applicable so that the said observations be appreciated in the proper context. The said law was the Pakistan Criminal Law Amendment Act, 1948 as amended by Pakistan Criminal Law Amendment Act, 1953 (XXXVII of 1953) because the occurrence in this case according to the said law report had taken place on 11-11-1957. The relevant provisions of the said statute are subsections (3) and (4) of section

4. They read as below:' Section 4(3).-- Notwithstanding anything contained in the Code of Criminal Procedure, 1898 or any other law, the offences specified in the Second Schedule shall be triable exclusively by the Special Judge. 4(4). All cases relating to any offences mentioned in the Second Schedule and pending in any Court other than the Court of a Special Judge immediately before the commencement of the Criminal Law Amendment Act, 1953, shall, on such commencement, stand transferred to the Special Judge having jurisdiction over such cases.. Now I proceed to give the specific observations made by the said Division Bench of the West Pakistan High Court, Karachi Bench in the said case. They run as below:- So far as the Special Judge under the Criminal Law Amendment pct is concerned, he can take cognizance of a case on a complaint or on a report by the police and while there are certain cases of which he alone can take cognizance, there is no Procedure provided and no authority given to him by the Prevention of Corruption Act or Criminal Law Amendment Act for withdrawing from the file of any Magistrate a case which in his opinion is triable by him or the facts alleged therein constitute in his opinion the offence exclusively triable by him." I need only say that subsections (3) and (4) of section 4 of the Offences in Respect of Banks (Special Courts) Ordinance, 1984, are exactly similar. The said observations, therefore, apply with equal force to the present case and fully show the correctness of the view arrived at by me above. For the foregoing reasons, I dismiss these three applications and direct that files of the said three cases be sent back to the Court of the' Magistrate from which the said three cases had been requisitioned. The petitioner may, if so advised, approach the Court of competent jurisdiction for the required relief. S.A./20/Sp.B. Applications dismissed.