P L D 2004 Quetta 105 (PLP)

"From bare perusal of the above reproduced section, we are, of the opinion that the High Court has got inherent power to modify the sentence awarded to accused in exercise of powers under section 561‑A, Cr.P.C., but not to enhance the sentence.(1999 MLD 2450). The inherent powers are not supposed to be exercised to override express provisions of law. (1999 MLD 946 and 535). It is held under section 561‑A, Cr.P.C., cannot be invoked and added where there are express provisions dealing with a particular subject or can be used to defeat the express intention of Legislature. In the case in hand provisional powers under section 439, Cr.P.C. in view of section 7(1) Act of 1975 was specifically excluded "no Court shall have authority to revise such sentence or order to acquittal ‑as the case may be" 1992 SCMR 2192."

13. Having regard to the above mentioned position, the impugned judgment is set aside and the case is sent to learned Sessions Judge (ad hoc) for adjudication as a Sessions Case strictly in accordance with law. The record since received be sent to the learned Sessions Judge immediately. With the above observations, the appeal and revision stand disposed. (Sd.) Fazal‑ur‑Rehman, J AMANULLAH KHAN, J.‑‑I have had an opportunity of going through the draft Judgment of my learned colleague Mr. Fazalur Rehman, and with all humbleness I am not in agreement with the findings viewed by my learned brother, and for such disagreement, I have my own reasons; for, in my estimation, remand would not be warranted, in the peculiar circumstances of instant case. Before touching the, merits of case, my learned colleague Mr. Justice Fazalur Rehman, J. remanded the case on the following two grounds:‑‑ (1) T.T.Pistol was used in the commission of crime, therefore, STA Court had no jurisdiction to try the case and it was to be tried by the ordinary Court of Session; and (2) Questions asked in statement under section 342, Cr.P.C were not in accordance with law. It may be observes that, before the trial Court, no such objection, regarding jurisdiction was raised and even in appeal before this Court, such objection was never raised and learned counsel for appellant argued the matter on merits. Thus principle of estoppel would operate, on account of his acquiescence. It may be noted that, incident took place away back in December, 1998 and since then, appellant is behind the bar. Thus remand of case on such point, would in no way advance the ends of justice, for the reasons that, STA Court is also presided over by the Sessions Judge, secondly section 302 is included in the schedule attached to the STA Act. 1975 and procedure of trial is also the same, and besides no prejudice has been caused to the appellant, on account of his trial by the STA Court. Therefore, remand of case for de novo trial would not promote the ends of justice, rather it would amount to re puting of appellant in ordeal of trial, especially when no useful purpose would be served, and it would only amount to a substitution of a stamp and nothing more. For sake of arguments, even if the case is remanded to trial Court, neither accused nor prosecution can bring a better case, than what has been brought on record, and above all no prejudice has been caused to appellant, even if the case was tried by the learned STA Court, and in view of the peculiar circumstances of instant case, for such a technicality, it would be an exercise in futility. In this regard I am fortified with the observation made in the case of (2002 SCMR 203), wherein following observations have been made:‑‑ "This objection could also be taken at the time of hearing of appeal but admittedly it was not raised at that stage also. It is salutary principle of law that an objection about jurisdiction/competency of a forum should be raised at initial stage in order to avoid complication/inconvenience which may arise ultimately in the reversal of the entire process therefore, even if it had been found that the High Court had no jurisdiction to hear the appeal, even then the appellant could not be permitted to raise such an objection at this stage on account of the principle of estoppel which would operate against him because of his acquiescence/silence and particularly when otherwise in this case the trial. Court/Sessions Judge and the High Court as such did not lack jurisdiction in the matter." In the draft judgment, my learned brother has also observed that, since incriminating pieces of evidence were not put to accused in his statement under section 342, Cr.P.C therefore, on this score as well the case is to be tried afresh. It may be observed that, where an incriminating piece of evidence has not been put to accused, the same cannot be considered as an evidence against him and besides, no such objection has been raised by the appellant nothing has been brought on record, to show as to what prejudice has been caused to appellant. Thus proceedings on such ground cannot be nullified, as it has not prejudiced the appellant. Rahter it has benefited him. In this regard I am fortified with the observations made in the case of Munir Ahmed v. The State (2001 SCMR 56), wherein reads as under:‑‑ "In law, if an incriminating piece of evidence is not put to an accused and it has resulted in causing prejudice to the accused the same shall not be considered as evidence against him. When we asked learned counsel for the appellant whether this ground was agitated by the appellant's counsel before the Court below, he frankly replied in negative with an assertion that it was not necessary to do so. But we may observe that absence of any challenge to such circumstance may in appropriate cases amount to admission that no prejudice thereby was caused to the accused/appellant. Thus, in view of the above discussion in my considered opinion, no ground for remand of case‑for de novo trial exists. Thus the case to be decided on its own merits. Since dissenting view has been taken, therefore, this case may be placed before the Hon'ble Chief Justice, for appointing of a Referee Judge, within the meaning of section 378, Cr.P.C. The appeal is not being disposed of on merits, which is likely to be sent to the Referee Judge, any findings on merits, may cause prejudice to other side. (Sd.) Amanullah Khah, J AKHTAR ZAMAN MALGHANI, J.‑‑‑This criminal appeal alongwith Criminal Revision Petition No. 139 of 2000 was heard by the Hon'ble Members of the Division Bench of this Court comprising of Mr. Justice Amanullah Khan Yasinzai and Mr. Justice Fazal‑ur‑Rehman. The draft of proposed judgment written by Mr. Justice Fazal‑ur‑Rehman was gone through by the Hon'ble Senior Member of the Bench and he found himself unable to agree with the conclusions as contained in the draft judgment proposing for remand of the case to Sessions Judge (ad hoc) for adjudications strictly in accordance with law. Consequently, I; having seized with the matter' as Referee Judge, issued notices to the, learned counsel for the parties for hearing.

2. I have heard the learned counsel for the appellant and complainant as well as learned Additional Advocate‑General. The learned counsel for the appellant support the dissent judgment written by the Hon'ble Senior Member of the Bench Mr. Justice Amanullah Khan Yasinzai and so the learned counsel for the complainant. Both the learned counsel in support of their contentions relied upon the judgments referred in the judgment authored by the Hon'ble Senior Member of the Bench. The learned counsel for the appellant in addition to mentioned judgments also referred to the judgments reported in 2001 PCr.L.J 453, PLJ 1998 (Criminal Cases) 1507 and 2002 PCr.LJ (sic).

3. On the other hand the learned Additional Advocate‑General supported the judgment written by his Lordship Mr. Fazal‑ur‑Rehman, J. and contended that the Special Court constituted under Suppression of Terrorist Activities (Special Courts) Act, 1975 had no jurisdiction to try the case and record conviction as the weapon of offence with which the appellant has allegedly committed the murder of deceased, did not fall in the Schedule II of the Act XV of 1975 at the time of commission of offence. He further contended that the consent of the parties could not confer jurisdiction on the Court or Tribunal, if it originally lack the jurisdiction nor by the acquiescence of the parties any order passed by a Court having no jurisdiction, could be maintained. The learned Additional Advocate‑General maintained that the case was triable under the regular law, where the complainant has also remedy by way of appeal and revision, in case the accused is acquitted or awarded lesser sentence, whereas no such remedy is available to the complaint in the situation where the case is tried under the Suppression of Terrorist Activities (Special Courts) Act, 1975. According to learned State Counsel even the State cannot seek enhancement for sentence awarded by the Special Judge as provisions of section 439, Cr.P.C. have been specifically excluded under the provisions of Act XV of 1975, as such; prejudice would be the natural result of the proceedings conducted by the Special Court constituted under the Act XV of 1975 having no jurisdiction in the matter.

4. I have carefully considered the contentions put forth by the learned counsel for the parties in the light of relevant provisions of law and the record. I have also carefully gone through the proposed judgment written by his Lordship Mr. Justice Fazal‑ur‑Rehman, and dissenting judgment of the Honourable Senior Member of the Division Bench (Mr. Justice Amanullah Khan Yasinzai).

5. The perusal of judgment reveals that Mr. Justice Fazal‑ur- Rehman has proposed to remand the case to Sessions Judge (ad hoc) on the following grounds:‑‑ (i) Case involving use of T.T. Pistol would be triable by Court of Session and not by Special Court constituted under Suppression of Terrorist Activities (Special Courts) Act. 1975, as such; the proceedings and trial before the Special Court in the instant case were without jurisdiction. (ii) The learned Special Judge has failed to give requisite certificate in his/her hand as provided under section 342, read with section 364, Cr.P.C. (iii) The judgment is not legal as the same is not in conformity with the mandatory provisions of section 367, Cr.P.C.

5. As the point of jurisdiction goes to the very root of the case, therefore, I intend to dispose of the same first. It may be noticed that the Special Courts set up under the Act XV of 1975 have been conferred with exclusive jurisdiction of the cases falling under the Schedule of the Act. According to Schedule if an offence punishable under section 302 is committed in the course of the same transaction in which offence specified in sub‑paragraph (i), (iii) and (iv) of paragraph (a) or paragraphs (b) and (c) is committed or in addition to or in combination with such offence, then the Special Court set up under the Act XV of 1975 would have exclusive jurisdiction. It may be noticed that in the instant case, according to prosecution case, the appellant has allegedly committed an offence with T.T. Pistol, and it appears that the Special Court has taken cognizance of the offence thinking the same fell under paragraph (a) read with paragraph (c) of the Schedule. Paragraph (c) of the Schedule at the time of commission of offence was as under:‑‑ "Any offence punishable under the Arms Act, 1878 (XI of 1878), or any offence punishable under any of the following sections of the West Pakistan Arms Ordinance, 1965 (West Pakistan Ordinance No. XX of 1965), namely sections 8, 9 and 10, if committed in respect of a cannon, grenade, bomb, rocket; or a light or heavy automatic or semi‑automatic weapon such as Kalashnikov, a G‑III rifle."

6. It may further be observed that on 15‑12‑1996 through Ordinance CXVII the words "including semi‑automatic or automatic pistols and those commonly known as T.T. Pistols" were inserted in the Schedule but said Ordinance was not revived and had expired, as such; on the date when the offence was allegedly committed by the appellant the above amendment brought through Ordinance CXVII of 1996 was not in existence and the murder committed allegedly through T.T. Pistol was not triable by the Special Courts constituted under the Act XV of 1975. Now the question arises as to whether the conviction of the appellant recorded by the Special Judge can be set aside being coram non judice, when no objection regarding jurisdiction was taken by the appellant or for that matter by the prosecution during trial. It is settled law that the consent or acquiescence of the parties cannot confer jurisdiction on a Court or Tribunal which totally lack jurisdiction and that the objection to the jurisdiction can be taken at any stage including appeal. Similarly it is also obligatory for the Court or the Tribunal conferred with Special jurisdiction to itself see as to whether the matter falls squarely within its jurisdiction before taking cognizance of the same. In this regard I am fortified by the judgment reported in 2000 PCr.LJ 1317 relevant observations are reproduced hereinbelow:‑‑ "On the other hand, Mr. Raja Qureshi, learned Advocate General, Sindh, and Mr. Ilyas Khan, learned Special Public Prosecutor, submitted that the appellant could submit an application before the A.T.C. under section 23 of the A.T.A. for transfer of the case to the Court having jurisdiction but it was not done, and therefore, the appellant cannot be allowed to take this plea at the appellate stage. We are not persuaded, to agree with the submission because the question of jurisdiction is a question of law and can always be raised by any party at any stage including the appeal. However, if the objection to the jurisdiction is taken at appellate stage it should not involve recording of further evidence, and should be on the basis of material already available on record: We are, further of the opinion that so far, the question of jurisdiction of a Court is concerned, a Court itself is required before proceeding with the case to examine whether it has jurisdiction in law to proceed with the case or not. Merely because a party to the proceedings has not taken any objection to the jurisdiction, out of ignorance or for want of proper advice, shall neither debar a party from taking such objection at the appellate stage nor the silence of a party or even waiver shall confer jurisdiction on a Court not vested in it in law. The question of jurisdiction goes to the very root of the case and renders the entire proceedings as corum non judice, thereby vitiating the entire proceedings and rendering the judgment illegal and void, therefore, it is the duty of every Court to examine itself if it has jurisdiction to proceed with the case or not and the objection in this behalf can be raised at any stage. Objection to the jurisdiction of a Court is in the nature of "objection to the proceedings" and not an "objection in the proceedings" and thus primarily it is an issue between a party on whom the jurisdiction is exercised by the Court." In another judgment reported in PLD 2000 SC 816 in similar circumstances while dealing with the point of jurisdiction the Honourable apex Court observed as under:‑‑ "The case was tried under the Suppression of Terrorist Activities (Special Courts) Act, 1975 and being a Special Court it could only proceed with the scheduled offence as mentioned in the Schedule of said Act, including the offences under sections 8, 9 and 10 of Pakistan Arms Ordinance, 1965 if committed in respect of a cannon, grenade, bomb or rocket; or a light or heavy automatic or semi‑automatic weapon such as klashnikov, a G‑III rifle or any other type of assault rifle. It is noted that Special Courts constituted under above Act, are Courts of limited jurisdiction and are only competent to proceed with the matters, which are mentioned in the Schedule of the Act. In this particular case the pistol in question, without any valid explanation, was not sent to the ballistic expert to find out it was automatic or semi‑automatic or ordinary. Learned A.‑G. before the High Court had contended that since the charge‑sheet was submitted before Special Judge, as such it was to be presumed that it was semi‑automatic. This argument found favour of the High Court and the pistol was treated as semi automatic. We are not inclined to accept above finding. In order to determine the exact calibre/status of the weapon it should have been referred to the expert as it was necessary to determine the issue of jurisdiction of the Court, learned High Court dealing with this point observed that irrespective of the fact that whether it was semi‑automatic or otherwise the appellant was to be tried by a Court and either he would have been convicted or acquitted and so was done by Special Judge. Again, we do not agree with above finding and hold that Special Judge could not proceed with the matter unless it was established the offence was covered by Schedule of the Act." Similar view was also taken by the Honourable apex Court in the judgment reported in 1995 SCMR 59 wherein the criminal appeal filed with leave of the Court by the State against the judgment of Lahore High Court, whereby appeals filed by the respondents against their conviction under section 13‑E, Arms Ordinance, 1965 recorded by the Special Court constituted under Act XV of 1975 were allowed "holding the trial before the Special Court to be coram non judice", was dismissed.

7. So for, the case‑law relied by the learned counsel for the appellants and complainant and referred in dissenting judgment of the Honourable Senior Member of Bench (Mr. Justice Amanullah Khan Yasinzai) is concerned, with all humbleness and due deference, I may observe the same is not applicable to the facts of the present case, firstly; because .in that case no objection regarding jurisdiction was taken before the trial Court as well as before the Appellate Court, while in the instant case the same came into consideration during the hearing of appeal and the learned Additional Advocate‑General for State has taken objection to this effect; secondly in that case the accused was tried by the Sessions Judge under section 302(b), P.P.C. and acquitted the accused but on appeal High Court after setting aside the judgment of trial Court convicted the accused under section 302(b), P.P.C. and an objection was taken before the Honourable apex Court regarding jurisdiction of the High Court to entertain the acquittal appeal on the ground that. the challan was submitted by the Investigating Agency under section 302(b), P.P.C. read with 17(3) of the Offence Against Property (Enforcement of Hadood) Ordinance, 1979 and the contents of charge also reveal commission of the offence under section 17(3) of the Ordinance, 1979, though specifically said section was not mentioned in the charge, as such; learned counsel was of the view that the appeal was competent before the Federal Shariat Court and not before the High Court. The Honourable apex Court repelled the contentions of the learned counsel by observing that no such objection was taken at the time of framing of charge nor before the Appellate Court at the time of hearing appeal, therefore, same could not be allowed to betaken for the first time before the apex Court. Whereas in the instant case objection regarding jurisdiction is being dealt with at the appeal stage. Additionally; in the reported case the question regarding jurisdiction of trial Court was not involved as in the present case.

8. As I propose to remand the case to the learned Sessions Judge (ad hoc) Quetta after coming to conclusion that the Special Court constituted under Suppressions of Terrorist Activities (Special Court) Act, 1975 has no jurisdiction to try the case in view of above discussion, therefore, I feel it not necessary to dilate upon the other grounds i.e. failure to append certificate in his/her own hand by the Presiding Officer and comply with mandatory provisions of section 367, Cr.P.C. For the foregoing reasons, the appeal is allowed and the judgment dated 31‑10‑2000 passed by Special Judge STA/Sessions I Judge (ad hoc) is hereby set aside and the case is remanded to the Sessions Judge (ad hoc) for adjudication in accordance with law. (Sd.) Akhtar Zaman Malghani, J. N.H.Q./21/Q Case remanded.