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Petitioner: Muhammad Jawad Hamid VS Respondent: Mian Muhammad Nawaz Sharif, etc
Court Name: Lahore High Court Judge(s): Muhammad Qasim Khan, Aalia Neelum, Sardar Ahmad Naeem Title: Muhammad Jawad Hamid vs Mian Muhammad Nawaz Sharif, etc Case No.: Writ Petition No.9027/2017 Date of Judgment:2018-07-06 Reported As: 2018 LHC 1465 Result: N/A
Judgment The instant writ petition has arisen out of the following admitted facts:- A private complaint was filed by Muhammad Jawad Hamid (petitioner) under section 190(1)(a) of the Code of Criminal Procedure (Act V of 1898 (hereinafter to be called as 'Code' ) and section 19(3) of the Anti-T errorism Act, 1997, (hereinafter to be called as "ATA") for offences under sections 302/324, 295-B/452, 395/427, 365/506, 120-B, 148/149, 337-F(vi), 337 C, 337-F(iii), 337-A(v), 337-L(ii), 337-F(i), 337-A(i) Pakistan Penal Code (Act XLV of 1860) read with Section 7 of the ATA and section 155-C of Police Order , 2002 before Special Court under Anti-T errorism Act, 1997, at Lahore (hereinafter to be called as "ATC") , wherein, 139 persons were cited as accused; the case of Shahid Aziz Butt (respondent No.139) was separated; in the separate trial he was finally convicted and sentenced and the court has been informed that he is now out after serving out his entire sentence. After recording cursory evidence, vide order dated 07.02.2017 respondents No.13 to 138 have already been summoned and are facing trial before the ATC. Vide the same order dated 07.02.2017 the learned trial court opined that there is no evidence to prove prima facie case against respondents No.1 to respondents No.12, as such, they were not summoned and their names were directed to be deleted from the list of respondents. (See para-41 of the impugned order .). The order dated 07.02.2017 to the extent of non-summoning of respondents No.1 to 12 is under challenge by the petitioner/complainant through the instant Writ Petition No.9027/2017 "Muhammad Jawad Hamid versus Mian Muhammad Nawaz Sharif and others". 2. Since the question about maintainability of writ petition against an order of summoning/non-summoning in the proceedings carried out under ATA was the basic legal question to be resolved, therefore, we took the same as primary issue and after hearing the learned counsel for the parties at length, vide our short order dated 11.05.2018, held that:- "For the reasons to be recorded latter in a detailed judgment, after hearing the learned counsel for respective parties, we hold that against an interim order passed by a Court under Anti-T errorism Act, 1997, during proceedings
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of a case, including an order of summoning/non-summoning the accused, writ petition is not maintainable, as under Anti-T errorism Act, 1997, applicability of sections 435, 436 and 439 Cr.P.C. has not been restricted, except under section 21(d) to the extent of bail, hence, criminal revision is competent." This shall form the detailed reasoning of the above reproduced short order . 3. Rai Bashir Ahmad and Mirza Naveed Baig, Advocates representing the petitioner while referring to the principles of interpretation of statutes, argued that when any provision by itself is clear in its literal meaning then it may not involve question of interpretation, however, where there remains any ambiguity, only then interpretation would be required. According to the learned counsel as ATA is a special law having overriding effect on the Code, hence, in the light of sections 21-D, 31 and 32 of ATA, criminal revision under general law i.e. Code is not maintainable and furthermore since under section 25 of the Act only a remedy of appeal has been provided, therefore, no other meaning can be imported to say that criminal revision would lie as if this was the intent of the legislators they could have provided remedy of criminal revision in the statute itself. Added that the law was promulgated for speedy trial of heinous offences, which create panic in the society and this aspect is clear from the preamble of ATA. Submit that law is to be interpreted keeping in mind the purpose of the relevant law reflected by its preamble. The learned counsel therefore, concluded that if the legislator had the intent to provide multiple remedies to the persons aggrieved of orders of the ATC under ATA, then its scope could have been extended to make the provisions of Section 435, 436, 439 of the Code, applicable. The learned counsel by referring different sections of ATA submits that since revisional jurisdiction has not been provided against interlocutory orders, and the legislators have intentionally kept the provisions of Section 435, 436, 439 of the Code away from the proceedings under the above Act, therefore, by interpreting the statute a remedy of revision cannot be extended against interlocutory orders. 4. Mr. Muhammad Azhar Siddique, Advocate adopted the arguments of his learned colleagues with a view that any illegality can be rectified by the High Court in exercise of jurisdiction under section 561-A Cr.P.C. 5. Learned Prosecutor General referred 2012 P.Cr.L.J. 696, 2000 YLR 2668 and 2000 P.Cr.L.J. to contend that in these cited cases criminal revision has been held to be not maintainable, however , in the light of guidance provided in the latest case law i.e. PLD 2018 SC 351, 2016 P.Crl.L.J 1463 , PLD 2012 IHC 35, PLD 2006 Lhr 290, criminal revision would lie against the orders passed by ATC. Further argued that bar contained under section 21(d) is only to the extent of the bail and could not take away revisional jurisdiction of the High Court. By referring Section 21(d), 25, 31 and 32 of ATA, he further argued that ATA itself does not provide any bar on the jurisdiction of this Court under sections 435 and 439 of the Code, hence, the High Court can exercise revisional jurisdiction in appropriate case. By referring section 19(14) and 32 ATA and Section 6 of the Code, he argued that for all intents and purposes the High Court being the appellate court has supervisory authority over the ATC as inferior/subordinate court, therefore, the scope of Section 435, 439 of the Code, cannot be curtailed. In this respect learned Prosecutor General referred the case PLD 2016 SC 55 and PLD 2018 SC 351) 6. Mr. Muhammad Amjad Rafiq learned Additional Prosecutor General argued that in the light of Mehram Ali's case PLD 1998 SC 1445, this Court can exercise revisional jurisdiction in appropriate cases against the proceedings of ATC. Further added that Section 31 ATA deals with finality of the judgment and order which is appealable and when the ATA was promulgated appeal lied before the Appellate Tribunal but later on amendment was introduced and High Court became the appellate court of ATC and the ATC is deemed to be court of Sessions under ATA and the provisions of Code are applicable until they are not inconsistent with the Code, which make it clear that against the interlocutory order or an interlocutory order of final nature, against which no appeal is provided, only revision is competent. Added that in Suppression of Terrorist Activities (Special Courts) Act, 1975, Terrorist Affected Areas (Special Courts) Act, 1992 and National Accountability Bureau Ordinance, 1999 (No.XVIII of 1999), specific prohibitions have been imposed against the filing of revision but no such condition has been imposed in the ATA, as such revision is maintainable and visitorial jurisdiction of the High Court over its subordinate courts cannot be curtailed. 7. Mr. Sittar Sahil, Assistant Advocate General, while agreeing with the arguments addressed by the learned Prosecutor General as well as the learned Additional Prosecutor General, and while referring to various provisions
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of law argued that writ petition is not maintainable and remedy of criminal revision can be invoked by the petitioner against the impugned order . 8. We have heard the arguments of learned counsel for the parties at full length and analyzed the legal preposition in the light of Articles 175, 203 of the Constitution of Islamic Republic of Pakistan, 1973 and Sections 2(c), 13(4) 19(14), 21-D, 25, 30(2), 31 and 32 of the ATA, Sections 6, 435, 439 and 561-A, of the Code. 9. On the face of it the question whether a Writ Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, a Revision Petition unde r section 435, 439 of the Code or a petition under section 561-A of the Code, would be maintainable to check the correctness, legality or propriety of any findings recorded by the ATC with respect to any order which is not appealable under ATA, appeared to be a perplexed question and admittedly there existed views of the courts for and against the said legal proposition, as some judgments of the courts held that a revision petition is not maintainable under the ATA on account of a collective reading and effect of sections 25, 31 and 32 of the said Act and in some judgments the court have held that revision petition is maintainable. 10. We have examined this issue in the light of relevant provisions of ATA and the Constitution of Islamic Republic of Pakistan, 1973. Article 175 of the Constitution deals with establishment of certain courts by implication of law other than Supreme Court, High Courts and the Federal Shariat Court. In Mehram Ali's Case the combined effect of Article 175, 202 and 203 of the Constitution was examined and in para No.1 1 thereof, it was held:- (i) That Articles 175, 202 and 203 of the Constitution provide a framework of Judiciary i.e. the Supreme Court, a High Court for each Province and such other Courts as may be established by law . (ii) That the words "such other Courts as may be established by law" employed in clause (1) of Article 175 of the Constitution are relatable to the subordinate Courts referred to in Article 203 thereof . (iii) That our Constitution recognises only such specific Tribunal to share judicial powers with the above Courts, which have been specifically provided by the Constitution itself Federal Shariat Court (Chapter 3-A of the Constitution), Tribunals under Article 212, Election Tribunals (Article 225). It must follow as a corollary that any Court or Tribunal which is not founded on any of the Articles of the Constitution cannot lawfully share judicial power with the Courts referred to in Articles 175 and 203 of the Constitution . (iv) That in view of Article 203 of the Constitution read with Article 175 thereof the supervision and control over the subordinate judiciary vest in High Courts, which is exclusive in nature, comprehensive in extent and ef fective in operation . (v) That the hallmark of our Constitution is that it envisages separation of the Judiciary from the Executive (which is founded on the Islamic Judicial System) in order to ensure independence of Judiciary and, therefore, any Court or Tribunal which is not subject to judicial review and administrative control of the High Court and/or the Supreme Court does not fit in within the judicial framework of the Constitution. (vi) That the right of "access to justice to all" is a fundamental right, which right cannot be exercised in the absence of an independent judiciary providing impartial, fair and just adjudicatory framew ork i.e. judicial hierarchy . The Courts/T ribunals which are manned and run by executive authorities without being under the control and supervision of the High Court in terms of Article 203 of the Constitution can hardly meet the mandatory requirement of the Constitution. (vii) That the independence of judiciary is inextricably linked and connected with the process of appointment of Judges and the security of their tenure and other terms and condition. " [Emphasis have been supplied by us] Section 6 of the Code accommodates classes of various criminal courts which are liable to revisional check of High Court; for facility of reference, relevant provisions are reproduced hereunder:- Code of Criminal Procedure (Act V of 1898) 6. Classes of Criminal Courts and Magistrates: (1) Besides the High Courts and the Courts constituted under any law other than this Code for the time being in force, there shall be two classes of Criminal Courts in Pakistan , namely:- (i) Courts of Session; (ii) Courts of Magistrate.
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[(2) There shall be the following classes of Magistrate, namely:- (i) Magistrate of the First Class;: (ii) Magistrate of the Second Class; and (iii) Magistrate of the Third Class, 435. Power to call for records of inferior Courts: (1) The High Court or any Sessions Judge may call for an examine the record of any proceeding before any inferior Criminal Court situate within the local limits of its or his jurisdiction for the purpose of satisfying, itself or himself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of such inferior Court and may, when calling for such record, direct that the execution of any sentence be suspended and, if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. Explanation: All Magistrates shall be deemed to be inferior to the Sessions Judge for the purposes of this sub- section. 439. High Court' s powers Of revision: (1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court, may, in its discretion,, exercise any of the powers Conferred on a Court of Appeal by Sections 423, 426, 427 and 428 or on a Court by Section 338, and may enhance the sentence and, when the Judges Composing the Court of Revision are equally divided in. opinion, the case shall be disposed of in manner provided by Section 429. (2) No order under this section, shall be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by pleader in his own defence. (3) Where the sentence dealt with under this section has been passed by a Magistrate the Court shall not inflict a greater punishment for the offence which, in the opinion of such Court, the accu sed has committed, than might have been inflicted for such offence by a Magistrate of the First Class. (4) Nothing in this section shall be, deemed to authorize a High Court -- (a) To convert a finding of acquittal into one of conviction; or (b) to entertain any proceedings in revision, with respect to an order made .by the Sessions Judge under Section (5) Where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed. (6) Notwithstanding anything contained in this section, any convicted person to whom an opportunity has been given under sub-section (2) of showing cause why his sentence should not be enhanced shall, in showing cause, be entitled at so to show cause against his conviction " Examination of Section 6 of the Code uncovers that there might be other courts established by any law other than the courts created under the Code. All criminal courts whether created by the Code or some other law are the Courts inferior/subordinate to High Court in the light of Mehram Ali Case (supra). Therefore, the revisional control under Section 435 to 439 of the Code being supervisory and curative in nature, will be available to the High Court unless expressly ousted by such special law . 11. Now the question would remain as to what would be the scope and extent of Section 21-D, 31 and 32 of ATA? Before dilating upon this legal proposition, we would like to refer the relevant provisions:- 21D. Bail. -- (1) Notwithstanding the provisions of sections 439, 491, 496, 497, 498, 498A and 561 of the Code, no Court, other than an Anti-terrorism Court, a High Court or the Supreme Court of Pakistan, shall have the power or jurisdiction to grant bail to or otherwise release an accused person in a case triable by an Anti- terrorism Court. 25. Appeal .--(1) An appeal against the final judgment of an [Anti-T errorism Court] shall lie to [a High Court]. (2) Copies of the Judgment of [Anti-T errorism Court] shall be supplied to the accused and the Public Prosecutor free of cost on the day the judgment is pronounced and the record of the trial shall be transmitted to the [a High Court] within three days of the decision.
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(3) An appeal under sub-section (1) may be preferred by a person sentenced by an [Anti-T errorism Court] to [a High Court] within seven days of the passing of the sentence. (4) The Attorney General, (Deputy Attorney General, Standing Counsel) or an Advocate General [or an Advocate of High Court or Supreme Court of Pakistan appointed as Public Prosecutor, Additional Public Prosecutor or a Special Public Prosecutor] may, on being directed by the Federal or a Provincial Government, file an appeal against an order of acquittal or a sentence passed by (An Anti-Terrorism Court) within fifteen days of such order. [(4A) Any person who is a victim or legal heir of a victim and is aggrieved by the order of acquittal passed by an Anti-T errorism Court, may within thirty days, file an appeal in a High Court against such order . (4B) If an order of acquittal is passed by an Anti-T erroris m Court in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grant special leave to appeal from the order of acquittal, the complainant may within thirty days present such an appeal to the High Court.] (5) An appeal under this section shall be heard and decided by "a High Court" within seven working days. [(6) Omitted by Ordi. IV of 1999 and XIII of 1999 w .e.f. 27.4.1999]. (7) Omitted by Ordi. IV of 1999 and XIII of 1999 w .e.f. 27.4.1999]. (8) Pending the appeal "a High Court" shall not release the accused on bail. [(9) For the purposes of hearing appeals under this section each High Court shall establish a Special Bench of Benches consisting of not less than two Judges. (10) While hearing an appeal, the Bench shall not grant more than two consecutive adjournments.] 31. Finality of judgment.- A judgment or order passed, or sentence awarded, by (An Anti-T errorism Court), subject to the result of an appeal under this Act shall be final and shall not be called in question in any Court." 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 inconsistent with the provisions of this act, apply to the proceedings before [an Anti-terrorism Court] shall be deemed to be a Court of Session. (2) In particular and without prejudice to the generality of the provisions contained in sub-section (1), the provisions of section 350 of the Code shall, as far as may be, apply to the proceedings before 1[an Anti-terrorism Court] and for his purpose any reference in those provisions to a Magistrate shall be construed as a reference to [an Anti- terrorism Court]. By examining Section 31 along with section 25 ATA (relating to appeal), it becomes crystal clear that section 31 specifies just such orders which achieve conclusiveness after the decision of the High Court in appeal. The words "subject to" used in Section 31 ATA get significance as these words have not been defined; therefore, we need to think about their strict and lexicon meaning. This expression was examined in the case "DADA SOAP FATORY LIMITED versus COMMISSIONER OF INCOME T AX, CENTRAL ZONE, KARACHI (PTCL 1987 CL 569), as "The word 'subject to' are not descriptive words but they impose conditions and obligation. These are words of qualification and conditions." Further, in the case "ISLAMIC REPUBLIC OF PAKITAN versus ABDUL WALI KHAN" (PLD 1976 SC 57), the expression 'subject to' has also been defined as 'conditional upon or dependent upon' or 'exposed to (some contingent action)', being under the contingency." The case "A.P. Moller versus Taxation Officer of Income Tax" (2011 PTD 1460), is also referred. The circumstances in this manner develop that the word "subject to" used in section 31 ATA in the light of qualified condition of Section 25 ATA only included the orders of acquittal and not any interlocutory order, regardless of the fact that if it may be of a final nature. Following are some of the examples of such orders which are not covered under section 31 ATA being not appealable but are final in nature :- i) Discharge of an accused; ii) Remand of an accused; iii) Dismissal of a private complaint under section 203 Cr .P.C. iv) Summoning or non-summoning of blamed in a private complaint; v) Summoning or non-summoning of a private witness; vi) Summoning or non-summoning of a document or any other thing;
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vii) Rejection of application under section 265-K Cr .P.C. 12. In the case of "Mian Khalid Rauf Vs. Chaudhry Muhammad Saleem and another" (PLD 2015 SC 348) Leave to Appeal was granted by the Hon'ble Supreme Court to consider the question, inter alia, whether the High Court was legally barred from entertaining a criminal revision petition against the Judgment of a Special Court and whether the bar of maintainability of appeal contained in section 10(2) of the Act 1958 would be extended to a Special Court created under Section 3 of the Act 1958 by an appropriate Provincial Government? While answering the said question it was observed that the Special Court/Judge is a Court inferior to the High Court and hence the High Court's revisional powers under section 435, Cr.P.C. to check the correctness, legality or propriety of any finding or order recorded or passed by an inferior Court would not stand excluded particularly as the Act itself does not exclude the same. Further , in the case "Abdul Hafeez Vs. The State " (PLD 1981 SC 352) it was argued that in the Drugs Act there was a provision as contained in subsection (7) of section 31 which provided for an appeal against a sentence passed by a Drug Court, to the High Court, but there was no express provision providing for or bestowing a revisional jurisdiction on the High Court, with the result, that in this case the High Court, had no jurisdiction or authority to enhance the petitioner's sentence in his own appeal, and as such, the order of the High Court in this respect was nullity and liable to be set aside. Repelling the aforesa id contention, Hon'ble Supreme Court observed:- 5. The contention has no merit. Section 435 of the Criminal Procedure Code says that the High Court (to put in broad words) will have a revisional jurisdiction against orders of "inferior criminal Courts". The word "inferior" here means judicially inferior Nobin Kristo Mookerjee v. Russick Lall Laha (1 L R 10 Cal. 269). It is to point out that a Court whose orders are subject to appeal to another independent and separate Court, is in that particular sense, inferior to the appellate Court. It will be worthwhile to mention here that in the Criminal Procedure Code of 1872, in the corresponding section 295, the words used were "any Court subordinate to such Court or Magistrate". It appears to unreasonable to suppose that this new expression has been substituted without any definite object, and the obvious conclusion which can legitimately be drawn is, that it refers to a Court over which the High Court proceeding under section 435, has appellate jurisdiction. From the above principle it is further evident that there may be inferiority without subordination but there cannot be subordination without inferiority . The epithet "inferior" seems to have been used simply in order to avoid the use of "subordinate" on account of the special limitation of the latter word which would prevent the superior Court from looking into certain cases arising beyond the line of "subordination" to it; which yet might properly be examined for the purpose of as order under sections 436 and 437 or reference under section 438, and then by High Court under section 439. It is to keep the hands of the High Court quite free in dealing with a case in its ultimate stage of revision etc. that expressio n "inferior" has been substituted for the word "subordinate". In that context, therefore, when in the manner aforesaid, a Drug Court has been made subject to appellate jurisdiction of the High Court and in that sense inferior to the High Court, the latter could exercise revisional jurisdiction against its order and proceedings as laid down in sections 435/439, Cr. P. C. In other words once having made the Drug Court, in that manner judicially inferior to the High Court, there was no necessity of duplicating the matte over again by expressly providing for a revisional jurisdiction of the High Court; because, the same already inhered in the status and position i which the Drug Court stood to the High Court. It is well settled that an appeal is a complaint to a superior body of any injustice done or error committed by…
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