1994 P Cr (PLP)

SARDAR MUHAMMAD DOGAR, -J.

Neelam Mawaz was tried alongwith her husband Javed Mawaz and 9 others by the Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975, under section 365-A of P.P.C. Vide judgment, dated 22-11-1990, she was convicted under section 365-A, P.P.C. and sentenced to undergo R.I. for 7 years. Her husband Javed Mawaz and Muhammad Hussain were also convicted under section 365-A, P.P.C. and sentenced to imprisonment for life. Their properties we're also ordered to be confiscated. Remaining accused were acquitted.

2. Neelam Mawaz filed Criminal Appeal No.882 of 1990. Petition for suspension of sentence moved on her behalf was not allowed by this Court vide order, dated 11-2-1991. The main factor which stood in her way for not getting the relief, was lack of jurisdiction of this Court to suspend the sentences passed .by the Special Courts constituted under the Suppression of Terrorist Activities (Special Courts Act), 1975, by virtue of the prohibition laid in section 7(1) of the Act ibid, and the dictum of the Supreme Court in The Allied Bank of Pakistan Ltd. v. Khalid Farooq 1991 S C M R 599, wherein it was, inter alia, observed:-- "The power of an appellate authority to grant interim relief by way of suspension or modification of the impugned order where such a power has not expressly been provided has been recognised by this Court in Commissioner, Khairpur Division v. Ali Sher Sarki P L D 1971 SC 242 and the implied power of an appellate authority to grant relief which is ancillary or incidental to the appeal during the pendency of the appeal, has also been recognised in Sindh Employees' Social Security Institution v. Adamjee Cotton Mills Ltd. P L D 1975 SC

32. But these are cases where the statute did not provide an express bar. Whether bail can be granted to a person convicted under the Ordinance on the basis of such an implied power, would appear doubtful in view of the clear bar contained in section 10(1) of the Ordinance. In Zeeshan Akhtar's case (supra), where an application under sections 561-A and 426 of the Code had been filed before the Karachi High Court for securing bail of a person convicted by a Special Court under the Ordinance, the Court, whilst referring to the implied power of the appellate Court, as spelt out from these two cases, held that such an order could not be passed as a matter of course, in view of the bar contained in section 10(1), but the Court held that in a fit and very exceptional case it could be attempted. Whether it should be attempted or it would not be more appropriate to dispose of the main appeal at the very earliest, is an open question. However, without prejudice to the rule and without excluding the possibility that in an exceptional case the High Court may feel compelled to intercede in the exercise of this rule, I would leave the matter open,so that when such an order comes before us, it can be properly examined in the light of its own unusual or peculiar facts and be tested on the touchstone of the law applicable." The conclusion was stated in the following words:-- "The upshot of the above discussion is that the High Court has power to grant bail to an accused during the pendency of the investigation of his case or trial in respect of a case registered against him under the Ordinance. However, where he has been convicted under the Ordinance, the Division Bench of the High Court, as a Court of appeal, has no power to suspend his sentence or release him on bail pending the final determination of his appeal. This is, however, subject to, the rider contained in para. 27 above, which I have left as an open question, to be determined when such a case comes before us." Section 7(1) of the Suppression of Terrorist Activities (Special Courts) Act, 1975 reads as follows:-- "7(1)

A person sentenced by a Special Court shall have a right of appeal to the High Court within whose jurisdiction the sentence has been passed (and the Provincial Government may direct any person appointed by it for the purpose to present an appeal to the High Court from an order of acquittal passed by a Special Court;) but save as aforesaid and not withstanding the provision of the Code or any other law for the time being in force or of anything have the force of law by whatsoever authority made or done, no Court shall have authority to revise such sentence, or to transfer any case from a Special Court or to make any order under section 426 or section 498 of the Code, or have any jurisdiction of any kind in respect of any proceedings of a Special Court."

3. The appeal filed against the judgment of this Court before the Supreme Court was allowed vide judgment, dated 24-4-1991. The case was remanded and it was directed that the matter of bail/appeal will be taken up on priority basis and decided within one week of the receipt of the order. 5. - While dismissing the petition on 22-1-1991, we had observed as follows in paragraphs 7 and 8 of our order:-- "7.-- Apart from the fact that the above observation is more of a directory nature than a mere guideline, we ourselves, are of the view that extra ordinary powers vested in the High Court under section 561-A, Cr.P.C. can be used only in exceptional and rare cases of hardship. They cannot be utilised to clearly defeat the purpose of a particular legislation.

8. If the legislator had considered it more appropriate not to vest the power of suspension of sentence to the Appellate Forum against conviction and sentences passed by Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975, utilisation of powers under section 561-A, Cr.P.C. while sitting as appellate Court in such like cases for suspension of sentences will amount to circumventing and clearly defeating the intention and purposes of the law giver."

6. Their Lordships of the Supreme Court while accepting the appeal and setting aside the order of this Court did not specifically observe anything in that regard.

7. In view of the jurisdictional bar laid in section 7(1) of the aforesaid Act and in view of the law laid down by the Supreme Court in the judgment reported at page 599 of S C M R 1991 and our own observations with regard to the limitations of this Court to intervene in such like matters by resorting to powers under section 561-A, Cr.P.C. the sharp question, which confronted us, was that if a case for intervention on any grounds i.e. rare hardship or jurisdictional violation committed by the trial Court in convicting the petitioner etc. was made out, what would be source of power, exercising which we can grant relief, prayed for.

8. Learned Judges of the Supreme Court in the judgment, dated 24-4-1991, while dealing with the argument of learned counsel for the appellant that if the condition of disposal of the appeal within 3 months laid down in subsection (2) of section 7, ["(2)

An appeal under subsection (1) shall be preferred to the High Court within thirty days of the passing of the sentence (or order of acquittal, as the case may be), and shall be beard and decided by a Bench of not less than two Judges of the High Court within three months",] is not fulfilled, the bar contained in subsection (1) of section 7, to suspend the sentences under section 426, Cr.P.C. or to grant bail under section 498, Cr.P.C. ceases to be operative, inter alia observed as follows:-- "... This plea was not raised before the High Court and indeed could not be raised as the period of 3 months had not expired when the bail matter was taken up and normally this, Court does not itself take up for consideration new pleas which were not raised and considered by the High Court. Furthermore in view of the order we propose to make in this case, it is neither necessary to go into the question of the relevancy of this legal maxim or its applicability in the facts and circumstances of this case." In that, learned counsel for the petitioner had pressed into service the maxim: "Cessante Ratione Legis Cessat lpsa Lex". (Co. Ltt. 70 b.) which means "reason is the soul of law, and when the reason of any particular law ceases, so does the law itself."

9. Learned counsel for the appellant during this round also did not advert to that argument before us. In fact, he gave a clear impression that he wants to keep that argument in stock for raising in some other matter at some other occasion.

10. In the circumstances, the only outlet available to consider the petition for suspension of sentence is the conclusion drawn by the Honourable Supreme Court (in the last para of the judgment, dated 24-4-1991) which reads as follows:-- "There is, therefor, prima facie force in the contention that the appellant having been tried for an offence which was not a scheduled offence, her conviction under it would be coram non judice and, and the circumstances, the bar of section 7(1) of the Suppression of Terrorist Activities (Special Courts) Act, 1975, would not apply." The Honourable Judges of the Supreme Court before observing that, had considered language of the charge against the petitioner and summary of the evidence put to her during statement under section 342, Cr.P.C.

11. Learned counsel for the petitioner contended that learned trial Judge had clearly acted beyond jurisdiction and it was outright a case of coram non judicc. Apart from that learned counsel argued that the petitioner being a lade was entitled to discretionary relief. It was also stated by him that the petitioner is mother of three school and college going daughters and there was nobody to look after them, as such her presence in the house is required to look after them particularly when her husband also stands lodged in jail after conviction and sentence.

12. Special Courts are set up for special purpose and they are vested with the jurisdiction of trying specified offences. They are not like the Courts set up under the Code of Criminal Procedure, wherein all the Courts in one or the other form/at one or the other stage of the trial, do have jurisdiction to consider the commission of offence' by an accused who is brought before the Court or trial. For the sake of example we would like to mention that although a Magistrate has no powers to try cases for which sentences, for more than 10 years' R.I. or imprisonment for life or death are provided, yet these cases also have to go before a Magistrate. so that after recording his opinion he sends up the case for trial to higher Court, i.e. the Court of Session. Vice versa, although normally a Sessions Judge does not try cases of theft, trespass etc. etc. for which sentences provided are less than 7 years' R.I., and the offences committed under the Special Acts, i.e. Pakistan Railways Act, Cattle Trespass Act etc. etc. yet they have the powers to try those offences also. If a Sessions Judge while trying a case of murder comes to the conclusion that the accused had committed the most minor offence under the P.P.C. i,e. under section 323, P.P.C. he has all the powers to charge him and convict him if he finds him guilty. Similarly, if he finds that offence under the Cattle Trespass Act was committed by the accused, even though maximum sentence provided for that is 6 months, he has all the powers to charge him, hold him guilty and award the sentence. For that matter, the High Court also in its original jurisdiction, can try any offence committed under the P.P.C. or the Special Act, howsoever, low or high the provided sentences may be.

13. The jurisdiction of the Special Courts is limited to try the offences mentioned in the schedule, or any offence which is, by a latter legislation, added in the schedule. They do not have the powers to try any offence which is not included in the schedule; In the case of Special Courts constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975, the schedule contains offences under sections 121, 121-A, 122, 123, 123-A, 124-A, 365-A, 400, 402-A, 402-C and 431 of P.P.C. The only other addition in that regard is provided in subclause (ii) of clause (h), which reads as follows:-- "(h)(ii)

Any attempt or conspiracy to commit, or any abetment of, any of the aforesaid offences:" 14. "Jurisdiction" has been defined as follows at page 925 of Volume II, 1964, in Prem's Judicial Dictionary:

"Jurisdiction.

The word "jurisdiction" (jus dicore) is a term of large and comprehensive import, and embraces every kind of judicial action upon the subject-matter, from finding the indictment to pronouncing the sentence. To have jurisdiction is to have power to inquire into the fact, to apply the law and to declare the punishment, in a regular course of judicial proceedings. Shaw, C.J., in Hopkins v. Commonwealth 3 Metc. (Mass) 462 said "jurisdiction in Courts is the power and authority to declare the law; the very word in its origin really imports as much. It is derived form "Juris" and "dico"

I speak by the law" -- and that sentence ought to be inscribed in living light on every tribunal of criminal power. It is the right of administering justice through the laws" by the means which the law has provided for that purpose". Mills v. Commonwealth, 13 Pa. 627,

630. But jurisdiction does not depend upon the sufficiency of the complaint. If the Court has jurisdiction of the parties and of the subject-matter, that is enough. "Jurisdiction" is the power to hear and determine the subject matter in controversy between the parties to a suit. If the law confers the power to render a judgment or decrees, then the Court has jurisdiction."

15. The trial of any accused for any other offence would not be lawful, it would rather be coram non judice.

16. Phrases, "Coram", Coram judice" and Coram non judice" have been defined as follows, at page 90 in the Second Edition of Concise Law Dictionary by P.G. Osborn:-- "Coram". (In the presence of). "Coram judice" (In the presence of the Judge). Before a properly constituted or appropriate Court. "Coram non judice" (Before one who is not a Judge). The proceedings are a nullity.

17. The same phrase has been defined as follows at page 417 of Volume I, .1964 Edition of Prem's Judicial Dictionary:-- "Coram"

In the presence of. "Coram judice"

See United States v. Arredondo. 8 Led. 547. "Coram non judice" (before an unauthorised tribunal)

when proceedings are coram non judice, i.e. without jurisdiction or not before the proper Judge, they are not judicial proceedings." Phrase coram non judice has been defined as follows at page 260 of Wharton's Law Lexicon Fourteenth Edition:-- . "Coram non judice" (in presence of a person not a Judge). When a suit is brought and determined in a Court which has no jurisdiction in the matter, it is said to be coram non judice and the judgment is void." 17-A. It is clear from the above meanings flowing from Coram non judice, that any indictment or sentence passed by a Court which has no A authority to try an accused of that offence, is clearly in violation of the law and would be a nullity.

18. The intention of legislature is clear from the schedule attached to the Special Courts set up, that in their wisdom they had considered neither proper nor justifiable to let such Courts try all or any of the offences committed by the accused, (before them) than the offences mentioned in the schedule. The Courts have also not accepted that. Reference in this regard can be made to Zahid Hussain v. State P L D 1987 Lah. 1087, wherein a single Judge of this Court, ruled as follows at page 1029:-- " .... By virtue of section 4 of the Suppression of Terrorist Activities (Special Courts) Act, 1975, scheduled offences are exclusively triable by a Special Court. Offences punishable under section 302/149/148, P.P.C. do not figure in the scheduled to the aforementioned Act. Such offences are, therefore, not schedule offences for the purpose of said Act and are thus not triable by a Special Court. The Chief Minister though a Chief Executive of the Province, is not legally empowered to order the entrustment of a non-scheduled offence to a special Court. He alone is not the Provincial Legislature and has no power/jurisdiction to pass an order in violation of the Suppression of Terrorist Activities (Special Courts) Act, 1975. His order, whereby he has directed that this case be sent to the Special Court/Tribunal for trial, is, therefore, a nullity in the eye of law and has no legal effect."

19. Learned Advocate-General while opposing the petition, stated that if the petitioner was released on bail, there is every possibility that she might abscond, as according to him she was a desperate person. In that, he submitted that the petitioner was an accomplice in a case registered under section 302, P.P.C. at Police Station Southern Cantt., Lahore against her husband Javed Mawaz, for having allegedly murdered his previous wife (learned counsel for the petitioner contradicted the allegation of the petitioner being an accomplice in that case); that she had avoided arrest in this case and decided to abscond and that she had appeared only after proclamation under section 87, Cr.P.C. had been issued against her; that she had got effected the registration of a Pajero jeep purchased by her out of the ransom received for the release of Sh. Aftab P.W. m this case, at Jhelum, before she had even obtained ownership of the jeep, and for that a case stands registered against her and the officials of Excise Department at Jhelum under section 420/466/471, P.P.C.

20. Although learned Advocate-General as well as learned counsel for the complainant strenuously opposed the grant of bail, contending that the jurisdiction of this Court stands barred in allowing such like petitions in such like cases in view of the legislative bar provided in section 7(1) of the Suppression of Terrorist Activities (Special Courts) Act, 1975 and in view of the judgment of the Supreme Court reported at page 599 of S C M R 1991, yet when confronted with the observation of the Supreme Court that in a case of Coram non judice, the bar contained in section 7(1) of the abovesaid Act, would not apply, they chose to reserve their arguments to show that even if the petitioner was not found to have committed the offence under section 365-A, P.P.C., she could be indicated and convicted by the Court seized of the trial for any other offence,, found to have been committed by her.

21. Neither learned Advocate-General nor counsel for the complainant pointed out any significant portion of the evidence which could have been termed as a step towards the commission of offence under section 365-A, E P.P.C. or a step in aid of commission of offence under section 365-A, P.P.C., although learned Advocate-General did state that after the abductee had been released on receipt of ransom, the petitioner had gone to the house of the abductee alongwith her husband and some other accused and threatened him that if he disclosed as to what had happened with him or tried to pursue that legally, he will be dealt with severely.

22. We feel that anything, more than, that, we have noted above, and what the Honourable Supreme Court observed with regard to prima facie nature of the offence, 'might prejudice the case of the prosecution adversely to the extent of irreparability. As such, we' are avoiding to say anything about criminal liability of the petitioner for the commission of offence under section 365-A, P.P.C., for having joined the other accused in threatening the abductee after the abduction was over and the ransom had also been paid/received. However, we would like to note down, that the last para of the impugned judgment weighed with us, alongwith the other material to form such opinion. The same reads as follows:-- "So far as Neelam Mawaz accused is concerned, since she has not actually participated in the abduction of Sh. Aftab Ahmad, I take a lenient view... " 23, The sum total of the above discussion is that the case of the petitioner, ex facie appears to be distinguishable from that of the persons who are undisputedly liable to be tried (and have been tried) for the commission of any offence provided in the schedule. The offence, she ultimately is found to have' committed, may not fall under any of the scheduled offences. Coupled with that, is the fact that petitioner is a woman, and is stated to be mother of three school and college going daughters. Her husband is in jail for having been, convicted and sentenced. In such circumstances, we are inclined to extend her the concession of grant of bail, provided she furnishes bail bonds in the sum of Rs. one lac with two sureties, each in the like amount, to the satisfaction of the Judge, Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975, at Lahore. N.H.Q./N-261/L Bail granted.