1994SCMR2177 (PLP)

The appellant, alongwith 9 others, was named as accused person in F.I.R. No.369/92 registered at Police Station Factory Area, Lahore, at the instance of respondent No.2, under sections 302/324/148/149 and 109, P.P.C. on 28‑8‑1992, in connection with double murder of Nazir Shah and Sajjad Ahmed alias Bhutto and for launching murderous assault on Amanullah, P.W. The police during investigation found only one out of the 10 accused persons framed in the F.I.R., namely Amer Ali involved in the case and accordingly submitted challan against him on 28‑7‑1993. However, before submission of police challan in the case, the complainant (respondent No.2) filed a direct complaint before the Special Court on 12‑1‑1993. The learned Special Court recorded evidence of the complainant on 21‑9‑1993 and further examined Amanullah, Dr. Muhammad Mahmood Alam Pasha and Shehzad Khan (P.Ws.) on 18‑10‑1993 and 24‑10‑1993 respectively. On the basis of the above preliminary evidence, the learned Special Court found a prima facie case against the appellant and nine others and accordingly ordered issuance of process against them on 6‑11‑1993 to appear before him on 20‑11‑1993. The appellant challenged the above order of Special Court before the Lahore High Court in a Writ Petition but without success. Leave to appeal was granted against the order of High Court by this Court as aforesaid. Mr. Talib Hussain Rizvi, the learned A.S.C. appearing for the appellant, contended before us that section 5 of the Suppression of Terrorist Activities Act, 1975 (hereinafter to be referred as the Act' only) lays down specific conditions for taking cognizance by the Special Court in a case triable by it. It is contended by the learned counsel that in view of section 5 of the Act, the Special Court can take cognizance either on the report of the Officer‑in charge of a Police Station under section 173 of the Code of Criminal Procedure (hereinafter to be called as 'the Code') ;or it may take cognizance of the case directly without filing of such report by the Police Officer. Apart from these modes prescribed under section 5 of the Act, according to Mr. Talib Hussain, the Special Court has no power to take cognizance of a case under the Act in any other manner. According to Mr. Talib Hussain, the effect of prescribing the above procedure for taking cognizance of a case under the Act by the Special Court, necessarily excluded the procedure of entertainment of a direct complaint by the Special Court available under the Code. The learned counsel for the respondents on the other hand supported the order of High Court and jointly contended that entertainment of a direct complaint by the Special Court in accordance with the provisions of the Code is neither excluded expressly nor by necessary implication by section 5 of the Act. We have heard the learned counsel for the parties at length. In order to understand the contentions raised in the above case, it is necessary first to examine the procedure prescribed under the Code for taking cognizance of a criminal case by the Court. Chapter XIV of Part V of the Code prescribed the manner in which intonation regarding commission of cognizable and non‑cognizable offences is to be conveyed to police officers and the powers of the police officer to investigate these offences. Section 173 in Chapter XIV of the Code requires that the result of every investigation conducted by police officer is to be forwarded by the officer incharge of police station to a Magistrate empowered to take cognizance of the offence on a police report in the form prescribed by the Provincial Government. This report contains the names of the parties, nature of information and names of persons who appeared to be acquainted with the circumstances of the case. This report also states whether persons named as accused in the F.I.R. have been arrested and if arrested whether they are being forwarded in custody or have been released after taking bond with or without surety. On receipt of the report under this section, the Magistrate may either discharge the bonds of the accused person released by the police after taking bond or he may direct otherwise. A copy of the report under section 173 ibid, is to be provided on application to an accused person before the commencement of inquiry or trial before the Magistrate. Part VI, Chapter XV of the Code contains sections 177 to 199‑B, which deal with the jurisdiction' of criminal Courts to hold inquiries and trials. Section 190, in Chapter XV of the Code which is relevant here, reads as under:‑‑ "190.‑‑‑Except as hereinafter provided any District Magistrate or Sub‑Divisional Magistrate, and any other Magistrate specially empowered in this behalf, may take cognizance of any offence‑‑ (a) upon receiving a complaint of facts which constitute such offences; (b) upon a report in writing of such facts made by any police officer, (c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed. (2) The Provincial Government, or the District Magistrate subject to the general or special orders of the Provincial Government may empower any Magistrate to take cognizance under subsection (1), clause (a) or clause (b), of offences for which he may try or send to the Court of Session for trial. (3) A Magistrate taking cognizance under subsection (1), of an offence triable exclusively by a Court of Session shall, without recording any evidence, send the case to the Court of Session for trial. The above section provides that the District Magistrate or Sub‑Divisional Magistrate or any other Magistrate specially empowered in this behalf may take cognizance of an offence (i) either on receipt of a complaint of facts disclosing commission of an offence (private complaint); or (ii) on the basis of a report in writing of such facts made by a police officer (report under section 173, Cr.P.C.); or (iii) upon information received from any person other than police officer or upon his own knowledge or suspicion that such offence has been committed (direct cognizance). Subsection (2) of section 190 provides that the Provincial Government or a District Magistrate subject to the general or special orders of the Government may empower any Magistrate to take cognizance of offences under subsection (1), clauses (a) and (b) of section 190 C (1) ibid and either try the case himself or send it to the Court of Session for trial. Subsection (3) of section 190 ibid makes it obligatory on the Magistrate taking cognizance under subsection (1) of section 190 to forward the case to the Court of Session without recording any evidence if such case is exclusively triable by the Court of Session. Section 193 in Chapter XV of the Code also needs mentioning here as it prohibits taking of cognizance by a Court of Session as a Court of original jurisdiction unless the case is sent to it by a Magistrate under section 190(3) ibid. Having referred briefly to the procedure of investigation of criminal offences by the police and the manner of inquiries and trial of criminal offences by the Court, we now turn to the provisions of the Act in this regard. Section 5(1) of the Act provides that the officer incharge of the police station, on completion of investigation, shall forward its report under section 173 of the Code to the Special Court within 14 days in respect of a case triable exclusively by the Special Court. Section 5(2) of the Act deals with the power of Special Court to extend time of 14 days prescribed under subsection (1) of section 5 of the Act for submission of police report and the consequences of delay and default in compliance with the provisions of section 5(1) by the police officer. Subsection (3) of section 5 of the Act provides that the Special Court may directly take cognizance of a case triable by that Court without the case being sent to it under section 190 of the' Code. A comparison of provisions of section 190 of the Code with section 5 of the Act will show that neither application of section 173 nor 190 of the Code is excluded either specifically or by necessary implication. The provision relating to taking of direct cognizance by the Special Court contained in subsection (3) of section 5 of the Act is not a new one as a similar provision for taking cognizance the case directly by a Magistrate already existed under subsection (2) of section 1.90 of the Code. Section 5 of the Act, which appears to be a combination of sections 173 and 190 of the Code differs, from these provisions only to the extent hereinafter indicated. Section 173 of the Code provides for submission of the report by the incharge of police station to the concerned Magistrate, who in term forwards the same to the Court competent to try the case. Under section 5 of the Act, the incharge of police station is required to submit the report in a case triable by Special Court directly to that Court. Section 173 of the Code provides no time limit for submission of the report on conclusion of investigation by the officer incharge of the police station to the concerned Magistrate while section 5 of the Act lays down a time limit of 14 days for submission of such a report to Special Court and delay in compliance of this time limit is punishable as disobedience of the order of Special Court. A Court of Session under section 193 of the Code is debarred from taking cognizance of a case as a Court of original jurisdiction unless the case is sent to it by a Magistrate under section 190(3) of the Code whereas a Special Court under the Act can take cognizance of a case directly as a Court of original jurisdiction in the same manner as a Magistrate is empowered to take cognizance of a case under section 190 of the Code. Section 5‑A of the Act prescribes the procedure adopted by the Special Court in the cases exclusively triable by it. It reads as follows:‑‑ "5A. Procedure of Special Court.‑‑(1) On taking cognizance of a case the Special Court shall proceed with the trial from day to day and shall decide the case speedily. (2) A Special Court shall not adjourn any trial for any purpose, unless such adjournment is in its opinion, necessary in the interest of justice and no adjournment shall be granted for more than two ‑ days. (3) A Special Court shall not, merely by reason of a change in its ~~:m composition or transfer of a case under section 4A, be bound to recall and rehear any witness who has given evidence, and it may act on the evidence already recorded. (4) An accused person may be tried in his absence, if the Special Court after such inquiry as it deems fit, is satisfied that‑‑‑ (a) such absence is deliberate and brought about with a view to impeding the course of justice; or (b) the behaviour of the accused in Court has been such as to impede the course of justice and the Special Court has on that account ordered his removal from the Court: Provided that, in a case referred to in clause (a), the accused person shall not be tried unless a proclamation in accordance with the provisions of section 87 of the Code has been published in respect of him, which proceedings shall be completed by the Special Court within seven days, and until the proclamation has been published in at least three national daily newspapers out of which two shall be in the Urdu language: Provided further that the Special Court shall proceed with the trial after taking necessary steps to appoint an advocate to defend the accused person who is not before the Court. (5) The advocate appointed under the second proviso to subsection (4) shall be a person selected by the Special Court for the purpose as far as may be, with the consent of the accused and he shall be engaged at the expense of Government and a notice of his appointment shall be published by the Special Court in the newspapers referred to in the first proviso to the said subsection. (6) An accused who is tried in his absence under subsection (4) shall be deemed not to have admitted commission of any offence for which he has been charged. (7) If, within sixty days from the date of his conviction, any person tried under subsection (4) appears voluntarily or is apprehended and brought before the Special Court, and proves to its satisfaction that he did not abscond or conceal himself for the purpose of avoiding the proceedings against him, the Special Court shall set aside his conviction and proceed to try him for the offence for which he is charged: Provided that the Special Court may exercise its powers under this subsection in a case in which a person as aforesaid appears before it after the expiration of the said period and satisfied it that he was prevented from appearing within the said period by circumstances beyond his control. (8) An accused person shall not be released on bail by a Special Court or by any other Court, if there appear reasonable grounds for believing that he has been guilty of a scheduled offence; nor shall an accused person be so released unless the prosecution has been given notice to show cause why he should not be so released. (9) A Special Court shall in all matters with respect to which no procedure has been prescribed by this Act, follow the procedure prescribed by the Code for the trial of cases by ' Magistrates' . " Subsection (9) of section 5‑A of the Act clearly provides, that in all matters with respect to which no procedure has been prescribed under the Act, the procedure prescribed by the Code for cases triable by the Magistrates will be adopted. Therefore, only to the extent of the inconsistency and difference between the provisions of the Act and the Code, the provisions contained in the latter will not be applicable to the proceedings before the Special Court. The learned counsel for .the appellant admitted that no specific procedure has been laid down under section 5‑A of the Act for taking direct cognizance by the Special Court in a case triable by it. The only condition prescribed under the Act for taking direct cognizance by the Special‑Court in a case triable by it is, that the case has not been sent to it under section 190 of the Code. Therefore, in our view the procedure prescribed under the Code for entertaining private complaints or taking direct cognizance of a case by the Magistrate in so far it is not inconsistent with the provisions of sections 5 and 5‑A of the Act, was not excluded in its application to proceedings before the Special Court. Section 190 of the Code in its application to Special Court is neither excluded by express prohibition nor by necessary implication, except to the extent of the difference between the two provisions (section 5 of the Act and section 190 of the Code) indicated above. A direct complaint, therefore, in a case triable by the Special Court, which has not been sent to it under section 190 of the Code was maintainable 'n the case before us, it is quite clear from the facts brought on record that no police report under section 173 of the Code or under section 5(1) of the Act, was submitted to the Special Court at the time the direct complaint was filed by the respondent before the Special Court. In these circumstances the Special Court was not only competent but rightly entertained the private complaint and issued process to the accused persons after holding preliminary inquiry in the case. The subsequent filing of the police report under section 173 of the Code by the incharge of the police station long after filing of the private complaint before the Special Court by the respondent/complainant could not divest the Special Court of its jurisdiction under section 5(3) of the Act to take direct cognizance of the case. The learned counsel for the appellant has relied on the case of Irshad v: The State 1987 P Cr. L J 2131. In the above‑cited case, the appeal arose from conviction under section 18(a) of the Emigration Ordinance, 1979. Subsection (6) of section 24 of the Emigration Ordinance provided that a Special Court shall take cognizance of an offence triable by it exclusively, only upon complaint in writing which is accompanied by previous sanction of Federal Government. In view of this special provision, the learned Judge in Chambers in that case reached the conclusion that as the offence under the Emigration Ordinance was cognizable by the Special Court only in the manner provided in section 24(6) of the Emigration Ordinance, the Court could not take cognizance in any other manner. The case, therefore is quite distinguishable and has no application to the circumstances of the present case. In the case before us, section 5 of the Act clearly provides that a Special Court is entitled to take direct cognizance of a case triable by it exclusively if a case has not been sent to it in accordance with the provisions of section 190 of the Code. From the material on record before us, it is quite clear that the Special Court took cognizance in the present case on the basis of complaint filed by respondent which was much earlier to the police report under section 173 of the Code. We are, therefore, of the view that in the circumstances of the case, the Special Court acted within its jurisdiction in taking cognizance of the case on the basis of a direct complaint. In the case of Nur Elahi v. Ch. Ikram‑ul‑Haq and the State PLD 1966 SC 708, this Court considered the question as to what procedure is to be adopted in a case by the Court where it is seized of the case both on the basis of private complaint as well as police challan. The following observations were made by this Court after referring to the various provisions of the code which may be reproduced here with advantage:- "The question then is what should be the procedure to be adopted by the learned trial Judge in disposing of these two cases. It has been conceded by the learned Advocate‑General as well as by Ch. Nazir Ahmad Khan who appeared for the three accused persons in the complaint case, that paragraph 8 of the judgment of the learned Single Judge, in so far as it directed that witnesses should be examined only once and their statements read out as evidence in the other case, is not supportable in law. To that extent, the appeal is well‑founded and must succeed on this point. The question how the two cases should be proceeded with so' as to cause no prejudice to either party, is one of difficulty in the circumstances mentioned and has caused us some concern. The learned Advocate‑, General suggested that we might issue directions similar to those embodied by the Lahore High Court in the unreported case cited above. The learned Judges observed therein that it would be desirable, should the trial Judge decide to hear first the case based on the police version, to summon the witnesses supporting the counter‑version as Court witnesses under section 540‑A of the Code of Criminal Procedure, so that the record contains all the relevant evidence. Similar procedure was directed to be adopted during the trial of the complaint case. After considering all aspects of the matter, we hold that a fair procedure would be for the learned trial Judge to take up the complaint case first for trial. During that case the learned trial Judge may call the witnesses mentioned in the police challan, if they were not already examined on behalf of the complainant, as Court witnesses under section 540‑A of the Criminal Procedure Code, so that they can be cross‑examined by both the parties. This will enable the Court to have the whole' relevant evidence included in one trial and a decision could be arrived at after a proper consideration of the entire material relied on by the parties. The accused persons would in addition obviously have the right to adduce defence evidence if they so choose. If that trial results in a conviction; it will be for the Public Prosecutor to consider whether or not he should withdraw from the prosecution, with the permission of the Court, under section 494 of the Code of Criminal Procedure, in the police challan case. It would be easy for him to take such a decision after the whole evidence has been thrashed out in the first trial. If the first case ends in' an acquittal, he might still have to consider whether the police version has not been so seriously damaged by what has been brought out in the first trial, as to justify withdrawal of the prosecution. Otherwise the second trial would be allowed to proceed to its normal conclusion and the parties would have the advantage of utilizing the material placed on the record of the earlier trial, by way of cross‑examination of the relevant witnesses as permitted by law. The procedure is being suggested to avoid a difficulty that might otherwise confront the complainant. If the police challan is taken up first for trial, the complainant would be under a handicap in so far as he would not be in a position to cross‑examine the witnesses for the prosecution. Another difficulty may arise in respect of conducting the case on behalf of the complainant in the first trial. Normally, of course, under the law, the Public Prosecutor is to be incharge of the case, even if the trial is based on a private complaint. The Public Prosecutor, however, in the special circumstances of the case, could permit the complainant's counsel to conduct the proceedings on his behalf under his directions. Alternatively and that may meet the situation more adequately, Government in the interest of justice, could notify the complainant's counsel, as a Special Public Prosecutor, for the conduct of that case alone. This would ensure full justice to complainant and he would not be left with any sense of grievance. He is at present challenging the bona fides of the police investigations. We, therefore, allow the appeal and direct that the trials will now be taken by the trial Judge in accordance with the observations made above. " "

7. As regards the power of the trial Court to summon the petitioners, who had been placed in column No.2 learned counsel does not deny that the trial Court is possessed of such power. He contends that the trial Court had not taken proper note of the fact that the petitioners had been found guilty neither by the police nor by the Ilaqa Magistrate to whom the case has been referred under section 202, Cr.P.C. The learned Judge in his order, dated 3‑10‑1978 has given reasons for summoning the petitioner. He had perused the record before him. His order summoning the petitioners thus suffers from no legal infirmity. It is to be noted that the petitioners had dropped their objection to the issue of ; process against them by withdrawing their Criminal Miscellaneous No.992‑M of 1982. " In view of the aforesaid reasons, we find no merit in this appeal which is, accordingly, dismissed but in the circumstances of the case there will be no order as to costs. M.B.A./R.239/S Appeal dismissed.