2000 PLP 946 (MLD)

"From the review of the above provision of the Act, it firstly appears that the Special Courts have been established as an exclusive forum for the trial of the scheduled offences under the Act and as such the jurisdiction of all other Courts shall be deemed to have been excluded in respect of all those matters to which jurisdiction of the Special Court extends and, secondly, the application of general provisions contained in the Code of Criminal Procedure regulating trial of accused person before the Special Court has been excluded to the extent that the provisions in that regard have been made in the Act. One more object, which clearly appears from the preamble and modes of the Act is that the Special Courts have been established for the purpose of Suppression of Act like sabotage, subversion and terrorism and making a special provision for Speedy trial of such offences. These objects of the Act have to be kept in view by them while interpreting the provisions of the Act as well as when holding, certain provisions of the Code, application, where all have not been specifically excluded by the Act, applied to the proceedings before the Court. " In Muhammad Sharif v. State (192 PCr.LJ 127) a learned Division Bench of Lahore High Court ruled that the application of any provision of the Code is excluded where provision of a Special or Local Law or any Special jurisdiction or power conferred on any Special Forum or procedure prescribed therein provides otherwise. In Dhirendra Nath Bera v. Noorul Huda (AIR 1951 Calcutta 133) referred by learned A.‑G. Sindh, a Full Bench of Calcutta High Court ruled that where facts in a complaint or a report from the Police Officer or an information received by a Magistrate of which. the Magistrate can ordinarily take cognizance of the offence under section 190 of the Code of Criminal Procedure discloses an offence of which cognizance cannot be taken by the Magistrate because of the provisions of sections 195 or 196, 196‑A, 197 and 199 of the Code, Magistrate is not debarred because of this from taking cognizance also of other offences disclosed by the facts alleged, which are not in any way effected by the provisions of sections 195 or 196, 196‑A, 197 and

199. The principle deducible from the cases referred by Mr. Ejaz Hussain Batalvi, learned counsel for the applicant can be summarised as follows:‑‑ (i) That sanction for the prosecution be on full application of mind to the facts. (ii) The prosecution can prove by leading evidence to the above facts. (iii) The object of the restriction is to enable the Government to decide whether an offence of the kind mentioned in the section 196 should be tried in Court or it would be more in the interest of the people and the administration to, suppress the trial due to seriousness of the offences. (iv) Cognizance by Court on complaint by prescribed person at the instance of the prescribed authority. (v) The police report cannot be taken as a complaint. Whereas the principles deducible from the cases cited by learned A.‑G. Sindh are as under;‑‑ (i) The Special Court having exclusive jurisdiction in the matter, for specific areas, provisions of section 191, Cr.P.C. could not be made applicable and the choice of trial Court is not available with accused. (ii) Where there is conflict between the provisions of general law and special law, latter would override the provisions of former law. (iii) If facts alleged in a complaint, or in police report or an information received, disclose an offence of which cognizance cannot be taken because of special provisions of sections 195 ‑or 196 or 196‑A or 199, the Court is not debarred from taking cognizance of other offences disclosed by the facts alleged which are not in any way effected by the special provisions. In order to examine the contentions assailing the jurisdiction of this Court with regard to the taking of cognizance of offence covered .by Chapter VI of the Penal Code Offence against State viz. 121 121‑A and 122, P.P.C. on the strength of the provisions of section 196, Cr.P.C. the text of the section is reproduced below for the sake of convenience: "

196. Prosecution for offense against the State.‑‑‑No Court shall take cognizance of any Offence punishable under Chapter VI or IX‑A of the Pakistan Penal Code (except section 127) or punishable under section 108‑A or section 153‑A or section 294‑A, or section 295‑A or section 505 of the same Code, unless upon complaint made by order of or under authority from, the Central Government or the Provincial Government concerned, or some officer empowered in this behalf by either of the two Governments. " On plain reading of the above provision, it would reveal that this section embodies one of the exceptions to the general rule that a prosecution can be initiated at the instance of any person. This section provides that in regard to the 6ffence enumerated in it, no proceeding can be taken in absence of a complaint made by the order or an authority from Central or Provincial Government or some officer empowered in this behalf by either Government. The cognizance in such cases can under this section only be taken on a complaint. Further, such complaint must be sanctioned by the authorities mentioned in the section. Thus, this section imposes a specific bar to the taking of the cognizance unless it is upon a compliant and at the instance of the prescribed authority and by prescribed person. Applicability of section 196, Cr.P.C. to the proceedings held or say, trial conducted under the Act essentially depends on the mode of taking cognizance by the Special Court, its power, and the provisions prescribing the procedure by Special Law. Indeed section 196, Cr.P.C. cannot be read in, isolation of the predominantly relevant provisions of the Act, such as section 12, 19, 30, 32 and Schedule read with section 173, 190 and 193 of the Code, which are reproduced as under for the sake of convenience:‑‑ (Relevant provisions of sections 12, 19, 30 and 32 of the Act, 1997).

12. Jurisdiction of Special Court.‑‑‑(1) Notwithstanding anything contained in the Code or in any other law, scheduled offence committed in an area in a Province shall be triable only by the Special Court exercising territorial Jurisdiction in relation to such area. 2. .

19. Procedure and powers of Special Court.‑‑(1) The Officer‑in‑charge of a police station shall complete the investigation in respect of a case triable by a Special Court within seven working days and forward directly to the Special Court a report under section 73 of the Code: Provided that the Special Court may extend the time within which such report is to be forwarded in a case where good reasons are shown for not being Able to do so within the time specified in this 2. . (3). The Special Court may directly take cognizance of a case triable by such Court without the case being sent to it under section 190 of (4) ............................................................................. (5) ............................................................................. (6) ............................................................................. (7) ............................................................................. (8) ............................................................................. (9) ............................................................................. (10) ............................................................................. (11) ............................................................................. (12) ............................................................................. (13)............................................................................. 19(14) subject to the other provisions of this Act, Special Court shall, for the purpose of trial of any offence, have all the powers of a Court of Sessions and shall try such offence as it were a Court of Session as far as may be in accordance with the procedure prescribed in the Code for trial before a Court of Session.

30. Modified application of certain provisions of the Code.‑‑‑(1) Notwithstanding anything contained in the Code or in any other law, every scheduled offence shall be deemed to be a cognizable offence within the meaning of clause (f) of section 4 of the Code and the words 'cognizable case' as defined in that clause shall be construed accordingly.

32. Overriding effect of Act.‑‑‑(1) The provisions of this Act shall have effect notwithstanding anything contained in the Code or any other law, but save as expressly ,provided in this Act the provisions of the Code shall, in so far as they are not in consistent with the provisions of this Act, apply to the proceedings before a Special Court; and for the purpose. of the said provisions of the Code, a Special Court shall be deemed to be a Court of Sessions. Plain reading of section 12 of the Act reveals that the Special Court has exclusive jurisdiction for trial‑of scheduled offences notwithstanding any thing contained in the Code or any other law. Subsections (1) and (3) of section 19, on perusal meet with all contingencies arising out of sections 173, 190 and 193 of the Code. The cognizance of the offence is ordinarily taken by a Magistrate only within the compass of section 190, Cr.P.C. and there is specific bar under section 193(1), Cr.P.C. restraining Sessions Court (unless otherwise expressly provided by the Code or by any other law for the time being in force) from taking cognizance of any offence as the Court of original jurisdiction unless accused has been sent to it under section 190(3) and since by virtue of sub‑section (1) of section 32 of the Act, a Special Court is deemed to be a Sessions Court, The aforesaid bar could affect the cognizance to be taken by the Special Court, therefore, subsection (3) of section 190 of the Act has been introduced empowering the Special Court directly to take cognizance of cases triable by the said Court, without the case being sent to it under section 190 of the Code as Court of original jurisdiction. This is inconsistency with the phrase "Or by any law for the time being in force" appearing in subsection (1) of section 193, Cr.P.C. This relaxation contemplated under section 190(3) of the Act, however, confines to the mode of taking cognizance otherwise than a case being sent ‑up under section 190, Cr.P.C. In other words, the bar having been removed as above, the Special Court has to take cognizance having recourse to such provisions of the Code, which strictly speaking, is available with the frame of section 190, subsection (1) of. this section envisages taking of cognizance either upon (i) receiving a complaint or upon (ii) a police report or (iii) on information received from a person other than Police Officer. Now the question is whether all the modes are available to this Court. The learned A.‑G., Sindh has contended that the jurisdiction of this Court to take cognizance 4s confined to the submission of the police report only. In Riffat Hayat v. Special Court for Supersession of Terrorist Activities Lahore and another (1994 SCMR 2177), similar arguments were taken that Special Court has no jurisdiction to entertain. a complaint as prosecution prescribed under the Special Law necessarily excluded the procedure of entertainment of a direct complaint by Special Court, After examining the provisions of sections 5 and 5‑A of the Suppression of Terrorist Activities Act as well as sections 73, 190 and 193 of the Code the view taken by Hon'ble Supreme Court was that a complaint can be filed under the provisions of section 5 of the Act. It may be stated here that the provisions of section 5(1) and subsection (3) of Act, 1975 are similar to the provisions of subsections (1) and (3) of section 19 of the Act, 1997. The observation contained in para. 2 of page 2183 of the report is instructive, which is reproduced in extenso as under:‑‑ "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. Sub‑section (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 90 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 of the case directly by a Magistrate. already existed under subsection (2) of the section 190 of the Code, section 5 of the Act, which appears to be 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, 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 ho time limit for submission of the report on conclusion of investigation by the officer-in‑‑charge 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(2) 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. " Learned Judges of Division Bench of Baluchistan High Court in Mistry Manzoor Ahmed v. The State (1996 MLD 129), after examining the provisions of subsection (1) and (3) of section 5 of the Act, 1975, were of the view that Special Court can also act on the basis of a credible information sufficient to prima facie constitute that an offence has been committed. In view of the above dictum of the Supreme Court and the Division Bench of 'the Balochistan High Court in cases of Riffat Hayat and Mistry Manzoor Ahmed (supra) the Special Court can take cognizance on the basis of (a) direct complaint and (b) police report (c) on its own knowledge or information i.e. all modes available under section 190, Cr.P.C. Section 30 reproduced above, makes the scheduled offences to be cognizable offences within the meaning of clause (f) of section 4 of the Code. Meaning thereby that the police can arrest and investigate the scheduled offences and submit the challan. Now the question is when the scheduled . offences are cognizable, police can arrest, investigate and submit challan, is the Special Court debarred from taking cognizance in view' of the bar contained in section 196, Cr.P.C.? Similarly, anomaly was brought before a Single Bench of Lahore High Court in the shape of quashment proceedings in case of M. Sharif and others v. State (PLD 1958 Lahore 1315) and it was found to be a conflict between two provisions of the Criminal Procedure Code, namely, that while an offence under section 188, P.P.C. is made cognizable, the Magistrate is not empowered to take cognizance thereof in view of the bar placed by section 195(1), Cr.P.C. The contention raised and the question formulated by the learned Bench consisting of Mr. Justice Aslam Riaz Hussain (as he then was) are contained in paras. 2 and 3 of the report, which ace short and material to the p91nt are reproduced hereinbelow :--

2. The contention raised by the learned counsel for the petitioner was that the police had no authority to investigate a case under section 188, P.P.C. and that offence is not cognizable and secondly that no Court can take cognizance of the case in view of the provisions of section 195(1) (a), Cr.P.C. which reads as follows: 195(1)(a): No Courts shall take cognizance‑‑ of any offence punishable under sections 172 to 188 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. The learned State Counsel pointed out, on the other hand, that the offence under section 188, P.P.C. has been made cognizance by an amendment in Schedule 11 of the Criminal Procedure Code (Refer PLD 1969 Provincial Statutes 52), and the police is, therefore, entitled to investigate the case.

3. The question which arises for consideration is whether, under the peculiar circumstances of this case when there is a conflict between two provisions of the Criminal Procedure Code, namely, that, while an offence under section 188, P.P.C. has been made cognizable and the police is thus authorised to investigate the case and submit a challan in the Court of a Magistrate, the Magistrate is not empowered to take cognizance thereof in view of the bar placed upon the same by section 195(1)(a), Cr.P.C. Having considered these contentions carefully, I feel that although the police is empowered to investigate a case and file a challan in the Court of a Magistrate, a complaint within the meaning of section 4 (h), Cr.P.C. has necessarily to be filed before the learned Magistrate can take cognizance of the case. It appears that, as in so many other cases where amendments in the Penal Code or the Criminal Procedure Code have been .made after the Partition the amendment in Schedule II of the Cr.P.C. making an offence under section 188, P.P.C. cognizable, was made in a hurry, overlooking the necessity s for making a corresponding amendment in section 1950)(a), Cr.P.C. the result is that a Magistrate cannot take cognizance of a case under section 188, P.P.C. unless and until the concerned officer (in this case the District Magistrate or one of his subordinates) files a complaint before the learned Magistrate. " The proceedings were quashed as the prosecution was not initiated on complaint as required under section 195(1)(a), Cr.P.C. On the basis of the above view, proceedings were quashed by this Court as well as by Peshawar High Court in the cases (1) All Hassan v. State (1979 PCr. LJ 949). (ii) Wali Muhammad v. State (1984 P.Cr.LJ 2514) (iii) Yar Muhammad v. State (1988 PCr.LJ 2156) (iv) Syed Abdul Rehman v. S.H.O. City of Mansehra (1996 P.Cr.LJ 483) (v) Nizamuddin Samejo v. SDM, Mirpur Mathelo (1988 P.Cr.LJ 988 (vi).Abdul Baqi v. State (198 P.Cr.LJ 87) (vii) Muhammad Inamul Haq v. State (1988 P.Cr.LJ 73). Had it been a case of general law, I would have also taken the same view. The case in hand is under Special Law. The provisions of the Code of Criminal Procedure are inapplicable to the proceedings arising out. of the Special Law by virtue of subsection (2) of section 1 of the Code and section 32 of the Act, 1997, has overriding effect. Section 1(2) of the Code says: "It extends to whole of Pakistan, but in absence of any specific provision to the contrary, anything herein contained shall affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force." Thus, there being inconsistency and the difference between the provisions of section 30 of the Act and section 196 of the Code, the provisions contained in the latter will note be applicable to the proceeding before the Special Court. Therefore, in view of the inconsistency, as discussed above, section 32 of the Act would come into play and the, bar contained in section 196, Cr.P.C. would not is any way affect to the taking of cognizance by this Court in exercising power under section 19 of the Act Consequently, the application is dismissed. H.B.T./N‑15/K Application dismissed.