2011 PLP 1319 (YLR)

SAJJAD ALI SHAH, J.-Through this Revision Application, the applicant has impugned Order dated 13-1-2010 passed by Special Judge, Anti Terrorism Court No.III, Karachi in Direct Complaint No.1 of 2008 whereby the learned Judge declined to transfer a Direct Complaint under section 182, P.P.C. filed by one DSP Nasir Mehmood Akhter against the applicant from his Court to the Court of Magistrate for want of jurisdiction. Briefly, the applicant on 17-3-2008 lodged F.I.R. No.59 of 2008 under sections 365-A, 395, 386, 343, 34, P.P.C. at Police Station Shah Faisal Colony, Karachi against one Sarfaraz Ahmed and other, which for further action was transferred to AVCC, where it was investigated by S.-I. Fayyaz Ahmed Qadri who during investigation examined the alleged abductees who denied their abduction as was alleged by the applicant in Crime No.59 of 2008, and the applicant despite repeated requests failed to appear before the Investigating Officer. Ultimately the said crime was transferred to Crime Investigation Sindh where it was investigated by DSP Nasir Mehmood Akhter (hereafter referred to as "complainant") who proposed the disposal of Crime No.59 of 2008 under B-Class and such report was accepted by the Hon'ble Administrative Judge for Anti Terrorism Court. The complainant, thereafter, lodged a Direct Complaint under section 182, P.P.C. against the present applicant on account of providing false information to public servant with intent to use his lawful power to injure another person which complaint after recording of statement of witnesses was registered and processed and summons were issued against the applicant who after obtaining bail moved an application for the transfer of Direct Complaint to the Court of Magistrate by pleading want of jurisdiction which application was turned down through impugned order. Ms. Noor Naz Agha, Learned Counsel appearing for the applicant contends that since section 182, P.P.C. is not a scheduled offence therefore, Anti-Terrorism Court has no jurisdiction to try the same and an offence under section 182, P.P.C. is triable by a Special Magistrate. Per Learned Counsel trial by the Anti-Terrorism Court of complaint under section 182, P.P.C. is sheer violation of applicant's fundamental rights which guarantee treatment in accordance with law and the trial initiated by the complainant is not in accordance with law. Ms. Akhtar Rehana, Additional Prosecution-General appearing on behalf of State has not supported the order impugned and has contended that an offence under section 182, P.P.C. is triable by the Court of ordinary jurisdiction. Mr. Aamir Mansoob Qureshi who was appointed Amicus Curiae has invited our attention to another aspect of the matter and has contended that a crime under section 182, P.P.C. can only be lodged by the officer to whom such false information is given or by an Officer to' whom such Officer is subordinate. Per Amicus Curiae, the complainant under section 182, P.P.E. lodged by the complainant is incompetent as it ought to have been lodged by the Police Officer of Police Station Shah Faisal Colony to whom such information was provided or by an officer to whom such police officer was subordinate and further within the jurisdiction where such information for the first time was revealed. To support his contention that F.I.R. can be lodged only at the place where such information was given and not in the territory where such information for the first time was revealed. Learned Amicus Curiae has placed reliance on the case of Rathinam Pillai v. Emperor (AIR 1932 Madras 427) and in support of his contention that such crime can only be lodged' by concerned public servant to whom false report was given or by some other public servant to whom he was subordinate in terms of section 195, Cr.P.C., has placed reliance on a judgment from this Court in case of Mst. Rani Begum v, Murad Bibi and another (2002 MLD 459) as well as on the case of Haji Muhammad and another v. Noor Hussain Alwani (1993 PCr.LJ 767), Qutub Din v. The State and another (2002 PCr.LJ 366) and Maulana Muhammad Ilyas Qadri v. Superintendent of Police, Haripur District (2005 PCr.LJ 623). It was next contended by the learned Amicus Curiae that before initiation of the prosecution under section 182, P.P.C. on account of furnishing false information the accused is further entitled to a show-cause notice which in the instant case is missing. In support of his contention he has placed reliance on the case of Muhammad Murad v. The State (1983 PCr.LJ 1097) and Muhammad Anwar v. The State 2000 YLR 2595. In the end on the point of jurisdiction of the Terrorism Court to try offence .under section 182, P.P.C. learned Amicus Curiae while referring to section 17 of the Anti-Terrorism Act has contended that the Act is silent on the issue as neither the offence under section 182, P.P.C. is scheduled offence nor comes within the ambit of section 6 of Anti-Terrorism Act, 1997 and consequently by placing reliance on the Judgment of Apex Court in the case of Fazal Dad v. Col. (Rtd.) Ghulam Muhammad Malik (PLD 2007 Supreme Court 571) contends that promulgation of the law by itself is not sufficient to supersede provisions of law contained in Criminal Procedure Code, 1898. In case, where the offence has no nexus with the parameters of special law, then general law applies and therefore, the jurisdiction vests with the Magistrate. We have heard the learned Counsel for the respective parties, learned Amicus Curiea and have perused the record as well as the case law cited at bar. The question as to whether Anti-Terrorism Court has the power to try a person accused of an offence under section 182, P.P.C. can be decided by examining the purpose for which such Court was created and the power which was conferred upon it. The Anti-Terrorism Act, 1997 (hereinafter referred to as "Act of 1997") which provides for the establish?ment of Anti Terrorism Court as evident from its preamble" was enacted for the prevention of terrorism, sectarian violence and speedy trial of heinous offences and for matters connected therewith and incidental thereto, and the purpose of establishing Anti-Terrorism Court as envisaged in section 13 of the Act of 1997 is to provide a Court for speedy trial of the scheduled offences. The "scheduled offence" as defined by section 2(t) of the Act of 1997 is an offence as set out in the Third Schedule. The power of the Court has been defined in section 17 of the Act, 1997 in following words: "When trying any scheduled offence (an Anti Terrorism Court) may also try any offence other than scheduled offence with which the accused may, under the code, be charged at the same trial" Examining the issue of jurisdiction of the Anti-Terrorism Court to try a person accused of an offence under section 182, P.P.C. in context of the purpose for which Anti-Terrorism Court was established and the power which was conferred upon it leaves no doubt in our minds that an Anti Terrorism Court while trying an accused person of a scheduled offence can also try such person for an offence which does not find mention in the schedule of offences by treating it as a ' matter connected and incidental to a scheduled offence as envisaged under section 21-M of the Act 1997. However, an Anti-Terrorism Court has no jurisdiction to try an accused person for an offence which does not find mention in the schedule of offences in case such person is not at trial for any scheduled offence. It appears to be an admitted position that an offence under section 182, P.P.C. does not find mention in the schedule of offences to Act of 1997 and the applicant was not being tried for any scheduled offence therefore, his trial before the Anti-Terrorism Court appears to be without jurisdiction. Even otherwise, the very nature of an offence under section 182, P.P.C. is, such that an accused charged for committing, such offence is always tried in seclusion for giving false information to public servant in order to use his lawful authority to cause injury to another person. The trial of accused charged with an offence under section 182, P.P.C. or the punishment for committing such offence does not change with the gravity of false information, it remains a magisterial trial with maximum punishment of six months or fine of Rs.3,000 or both, notwithstanding the fact that the false information given by such accused person is for an offence exclusively triable by Anti Terrorism Court and carries capital punishment or a minor offence carrying punishment for a month. As to the contention of learned Amicus Curiae that a complaint under section 182, P.P.C. can only be lodged by the officer to whom such false information is given or by an officer to whom such officer is subordinate, in our view does not need to be dilated upon as section, 195 Cr.P.C. clearly lays down that no Court shall take cognizance of any offence punishable under sections 172 to 188 (which includes section 182) of the Pakistan Penal Code except on the complaint in writing of the public servant concerned or of some other public servant to whom he is subordinate. In the instant case, there is nothing on record to show that the Police Officer of Shah Faisal Colony before whom such information was given by the applicant was subordinate to the complainant, on the contrary the complainant appears to be second Investigating Officer of the crime, therefore, filing of complaint by the Investigating Officer does not appear to be in terms of section 195, Cr.P.C. Moreover, similar controversy came up before a learned Single Judge of this Court in the case of Haji Muhammad and another (supra) where this Court after holding that the object of section 195(1), Cr.P.C. is to prevent-improper and reckless prosecutions by private persons for offences relating to administration of justice in order to give vent to their private vendetta came to the conclusion that the prosecution lodged by a S.H.O. under section 182, P.P.C. was without jurisdiction as false information was given to the Deputy Inspector General of Police and, therefore, the complaint could either be filed by the Deputy Inspector General of Police or the Inspector General of Police and consequently the proceedings lodged by S.H.O. were quashed. Similar view was taken by the learned Single Judge of the Lahore High Court in the case of Qutub Din (supra) and a Division Bench of the Peshawar High Court in the case of Maulana Muhammad Ilyas Qadri (supra). It is equally important to observe that learned Amicus Curiae has rightly pointed out that before initiating pro?ceedings under section 182, P.P.C. the Court is required to give a show-cause notice to person who allegedly gave false information requiring him to explain as to why complaint under section 182, P.P.C. be not lodged against him and if such person pleads that he had made the report under misapprehension he is entitled to lead evidence to that effect and a complaint, thereafter, can be only lodged once 'the Magistrate" comes to a prima facie conclusion that the information given was deliberately false. This view finds support from the Judgment of Lahore High Court in the cases of Khan Ghulam Qadir Khan Khakwani v. A.K. Khalid (PLD 1960 (W.P.) Lah. 1039), Muhammad Murad v. The State (1983 PCr.LJ 1097) and Muhammad Anwer v. The State 2000 YLR 2595. Since we have already come to the conclusion that the Anti Terrorism Court had no jurisdiction to try the case and keeping in mind' the settled proposition of law that omission to raise objection, acquiescence or even consent cannot vest a Court with jurisdiction which it has not. We while accepting this Criminal Revision quash the proceedings. However, it will remain open to the prosecution to try the applicant under the ordinary law before the competent Criminal Court, if so desired. H.B.T./Z-17/K???????????????????????????????????????????????????????????????????????????????????? Petition accepted.