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Petitioner: Mian NAWAZ SHARIF and others VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Shabbir Ahmed Title: Mian NAWAZ SHARIF and others vs THE STATE Case No.: Case No,385 of 1999 Date of Judgment:2000-01-12 Reported As: 2000 MLD 946 Result: Application dismissed
Judgment ORDER This order will dispose of the application moved on behalf of accused Mian Muhammad Nawaz Sharif under section 196, Cr.P.C. For declaring the proceedings against the Petitioner/accused coram-non-judice, unlawful, without jurisdiction and without lawful authority. ' The application has been moved with the facts that a case registered against the applicant on 10- 11-1999 being F.I.R. No,201 of 1999 at Police Station Airport, Karachi on the basis of a report by one Lt.- Col. Atiquazaman Kiyani, purported to be Protocol Officer in the Headquarters, Karachi whose authority to lodge the complaint is not conceded and was lodged after about 30 days from the date of illegal arrest. It was also maintained that the F.I.R. Leaves no doubt that it is a fake and false statement, which has been prepared with ulterior motive. ' Without prejudice to the right of the applicant to take all legal and other pleas and without conceding any of the facts alleged against the applicant and without prejudice to any other remedy available to the applicant, the proceedings in and by this Court are illegal, void ab initio and without lawful authority on following grounds:-- (i) The prosecution filed challan, dated 7-12-1999 (termed as charge sheet) on 8-12-1999 in Column No,7, the following offences are alleged to have been committed by the applicant:-- PAKISTAN PENAL CODE (i) Section 120- BPunishment of Criminal conspiracy. (ii) Section 121 Waging or attempting to wage war or abetting waging of war against Pakistan.
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(iii) Section 121-AConspiracy to commit offence punishable by section 121. (iv) Section 122Collecting arms etc. With intention of waging war against Pakistan. (v) Section 123 Concealing with intent to facilitate design to wage war. (vi) Section 324Attempt to commit qatl-i-amd. (vii) Section 365Kidnapping or abducting with intent to secretly and wrongfully confine person (vii) Section 402-AHijacking (vii) Section 109Punishment of abetment if the act abetted is committed in consequence and when no express provision is made for its punishment. OFFENCES UNDER ANTI-TERRORISM ACT (i) Section 6 Terrorist Act (ii) Section 7 Punishment for Terrorist Act. (iii) Offence under sections 121, 121-A, 122 and 123 fall in Chapter VI of P.P.C. Titled "Offences Against The State" and mandatory procedure is given in section 196 of the Code of Criminal Procedure, which is reproduced as under:-- '196. Prosecution for offences 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 Punishment 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. ' The complaint filed by Lt.-Col. Atiquzaman Kiyani is not a complaint contemplated under section 196, Cr.P.C. The provisions of section 196, Cr.P.C. Has been interpreted on numerous occasions by the Superior Courts of Pakistan and proceedings were declared void ab initio where cognizance was taken by the Court of law without the said complaint. (iii) the object of legislating section 196, Cr.P.C. To grant power to the Government (Federal or Provincial) to decide whether a person should or should not be tried as the trial may embarrass the Government at home or abroad. Section 196, Cr.P.C. Creates a clog on the taking of cognizance of a case by a Court, which can be removed only if the complaint contemplated under section 196, Cr.P.C. Is lodged with the Court. On the authorization of the either Government. The investigation of the case in violation of a section 196, Cr.P.C., is, thus, prohibited and if commenced or continued would be absolutely without warrant in law and, therefore, without lawful authority. Where the law requires a particular thing be done in a particular manner all other modes woulu be forbidden. The proceedings without compliance of section 196, Cr.P.C. Would constitute proceedings without jurisdiction. In other words where proper procedure has not been observed in the lodging of the complaint the proceedings being devoid of legitimacy would merit quashment. (iv) That the police is not competent under section 196, Cr.P.C. To conduct investigation 'and submit challan in Court and if the Court assumes jurisdiction in such a case it would be illegal and the taking of the cognizance by the Court would amount to abuse of the process of the Court.
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(v) That the authorization for filing a complaint under section 196, Cr.P.C. Cannot be general in nature. The Governments before issuing the authorization to lodge a complaint must by full application of mind decide each case separately. The general authorization by Governments of an officer or officers by virtue of their designation or name, would not be lawful authorization:-- (vi) That the Honourable Court has taken cognizance of aforesaid challan against the petitioner and others in total disregard of the mandatory provision of section 196, Cr.P.C. Due to which cognizance of the challan and proceedings arising out of the same are thus illegal, without lawful authority and void ab initio. In fact no complaint under section 196, Cr.P.C. Whatsoever has been filed before this Court by any authorized person/Government. In law, the F.I.R. Is not such a complaint under the above referred law nor Lt. Col. Attiquzaman Kayani and officer is empowered/authorized duly under section 196, Cr.P.C. To file any complaint. ' I have heard Mr. Ijaz Hussain Batalvi and Mr. Khawaja Sultan Ahmed, learned counsel for the applicant and Mr. Raja Qureshi, learned Advocate General, Sindh, assisted by Mr. Zahoorul Hach Special Public Prosecutor. ' The application has been moved and argued on law point only as such facts need not to be reproduced or referred except necessary facts which are that on 10-11-1999 an F.I.R. Was lodged at Police Station Airport by Lt. Col. Attiquzman Kayani under sections 402-B, 365, 120-B,/34 and 324, P.P.C. And 7 of Anti-Terrorism Act, against applicants Mian Muhammad Nawaz Sharif, Amanullah Choudhry, Shahid Khaqan Abbasi, Syed Ghous Ali Shah, Rana Maqbool. The Challan, dated 7-12- 1999 was presented to this Court on 8-12-1999 by showing offences in Column No,7 including the offences under sections 121, 121-A, and 123, P.P.C. Conversed by Chapter VI of the Code with more set of accused namely Shahbaz Sharif, Saifur Rehman and Saeed Mehdi. ' The contention of Mr. Batalvi is that the offences in Chapter VI of the Penal Code pertains to the offences against the State and are non-cognizable offences, the cognizance cannot be taken unless the clog put in the shape of section 196, Cr.P.C. Is removed. Initiation of prosecution and taking of the cognizance of such offence is barred/closed. He further contended that the ley lies in the same provision and the prosecution has to open the door by the keys provided therein. He further contended that the provisions of section 196, Cr.P.C. Is mandatory containing the obstainance clause and unless hurdle is crossed by sanction of Central or Provincial Government followed by a complaint by an authorized persons, the Court cannot take the cognizance of the offences. ' He further contended that before issuing sanction/authorization, the Government has to apply its mind with reference to the facts alleged. In absence of such application, the authorization would not comply with the requirement of section 196, Cr.P.C. He referred the case of Gokulchand Dawarka Das Moraka v. King (PLD 1948 Privy Council 11) (AIR 1948 Privy Council 82). The learned counsel further contended that the offences of Chapter VI of the Code are very sensitive and serious in nature with serious consequences, as such the clog has been put to enable the Government to decide whether offences of the kind mentioned in section 196, Cr.P.C.. Should be tried in Court or where it would be more in the interest of people and the administration to suppress the trial, since the offences assume importance not only from its own nature but also from the personalities of the offender. He referred the case of Muhammad Khan v. The Government of West Pakistan (PLD 1960 (WP) Lahore 334 (D.B.). He further contended that the clog put in the shape of section 196, Cr.P.C. Is sine quo non and unless the conditions, which are indispensable are available the Court cannot take cognizance of the offences enumerated in section 196, Cr.P.C. He further contended that no document has been produced to show sanction nor complaint has been filed before the Court by an authorized person. Thus, cognizance taken by this Court would be coram-non-judice and without jurisdiction. To support his contention, he referred the cases of (i)
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Dost Muhammad v. State (1997 PCr.LJ 184) (ii) Dr. Abdul Jabbar and another v. State (1990 PCr.LJ 1708). Conversely, Mr. Raja Qureshi, learned Advocate General, Sindh has controverted the argument advanced by Mr. Batalvi by maintaining that the provision of section 196, Cr.P.C. Is not applicable to the proceedings before the Special Court established under the provision of Anti-Terrorism Act, 1997 (hereinafter referred to as the Act, 1997). The provision of Act, 1997 being special Law will supersede the provisions of general law viz. Criminal Procedure Code and the cases cited by Mr. Batalvi would not be of any help to the applicant as all the cases referred to by him were under the general law. He further maintained that the general law has been drastically modified I by Act of 1997 whereby the exclusive jurisdiction has been conferred on Special Court under section 12 of the Act to try the scheduled offences notwithstanding anything contained in the Code or any other law. He further contended that the offences referred to in Chapter VI of the Penal Code are scheduled offences. The Scheduled offences have been made cognizable under section 30 of the Act and the Special Court has been conferred with the jurisdiction/power to take cognizance under the provisions of section 19 on Police report only. He contended that complaint is not entertainable by Special Court. He further contended that the provisions of section 32 override the provisions of the Criminal Procedure Code, which are inconsistent with the provisions of this Act. Thus, he maintained that the clog of section 196, Cr.P.C. Is in conflict with the provisions of section 30 of the Act, as such it will not be available to the applicant to plead that the clog has not been removed. To support his contention that the special law overrides the provision of general law, he referred cases of (i) Nil Madhab and others v. State (AIR 1955 Patna 317), (ii) Abdul Razzaq Butt v. Bibi Kulsoom (1999) MLD 3, (iii) Dhirendra Nath Bera v. Noorul Huda (AIR 1951 Calcutta 133), (iv) Asif Ali Zardari v. State (1991 PCr.LJ 595 and (v) Muhammad Sharif v. State (1992 PCr.LJ 127). ' On the last leg of his argument, the learned Advocate-General, Sindh, produced a letter, dated 19th December, 199 of Government of Pakistan, Interior Division, Islamabad, according sanction within the meaning of section 196, Cr.P.C. For trial of the scheduled offences arising out of F.I.R. No,201 of 1999, against the accused mentioned therein. ' Since the letter has been produced at the fag end of the arguments, I will refrain to comment on the same and will decide the application on merit. ' Now I revert to the case cited by Mr. Ijaz Hussain Batalvi, learned counsel for the applicant. ' In the case of Gokulchand Dwarka Das v. King (supra) the sanction for the prosecution was required under clause 23 of the Cotton Cloth and Yarn Control Order, 1943. Sir Jhan Beaumont, who delivered the judgment of the Board observed as follows:-- "In their lordships view in order to comply with the provisions of clause 23 it must be proved that the sanction was given in respect of the fact constituting offence charged. It is plainly desirable the fact should be referred to on the face of the sanction, but this is not essential, since clause 23 does not require the sanction put in any particular form nor even put in writing. But the facts constituting offences charged are not shown on the face of sanction, the prosecution must prove by the extraneous evidence that those facts were placed before the sanctioning authority." ' In Muhammad Khan v. Government of Pakistan (PLD 1960 West Pakistan Lahore 434 (D.B.) the erstwhile West Pakistan High Court highlighted the object of the sanction in regard to the offence as well as the offender in the following words: "The object of restriction, however, is to enable the Government to decide whether offence of kind mentioned in section 196, Cr.P.C. Should be tried in the Court or whether it should be more in the interest of people and the administration to supress trial and since offences assume importance not only from its own nature but also from the personalities of the offenders, it should be in the power of the Government to decide whether any particular person should be prosecuted." ' In Dost Muhammad (supra) it was observed by this Court as under:
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"In fact section 124-A, P.P.C. Being non-cognizable offence, investigation by Police cannot be done on the other hand section 196, Cr.P.C. Imposes specific bar to the taking of cognizance unless it is put on a complaint and at the instance of the prescribed authority and by a prescribed offender. The noncompliance in initiation of the proceedings goes to the route of the entire matter. It is needless to state that when law requires a particular act to be done in a particular manner all other ways of performance are forbidden." ' In Abdul Jabbar's case (supra) the,view expressed in the case of Maulana Dost Muhammad was reiterated and the proceedings were quashed for want of compliance of section 196, Cr.P.C. Against the applicant and other who were facing the trial for the offences under sections 120-B, 121 and 124 C . P . C. , ' The cases referred to by the learned Advocate-General, Sindh may also be referred. In Nil Madhab and others v. State (AIR 1955 Patna 317) and Abdul Razaq v. Bibi Kulsoom (1999 MLD 3), the view expressed was that when a Special Court has been conferred with jurisdiction to try offences, no other Court has jurisdiction to try such offences and option under section 191 is not available to the accused, as the provision of Special Law has to prevail over the general law. The first case pertains to the Criminal Law (Amendment) Act (46 of 1952), whereas in second case the view taken in Nil Madhab was referred, while considering the option under section 191, Cr.P.C., with reference to the provisions of Anti-Terrorism Act of 1997, learned Judges opined that Special Court having exclusive jurisdiction to try specific offences, the option allowed by section 191, Cr.P.C. Is not avaialble to the acused. ' In Asif Ali Zardari v. State (1991 PCr.LJ 595), a Division Bench of this Court consisting of Mr. Justice Saiduzzaman Siddiqui (as he then was) now Chief Justice of Pakistan with late Imam Ali G. Kazi, J. After reviewing the provision of sections 5 and 5-A of the Suppression of Terrorist Activities Act, 1975 as well as the provision of sections 173, 190 and 193, concluded as under: "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.
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' 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 bffence 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
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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 subsection. 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 the Code. (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 (0 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 anything 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 jurisdcition 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…
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