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Official Citation: 2023 PCRLJ 1092
Court / Jurisdiction: Islamabad High Court
Year of Decision: 2024
Decision Date: 2024-01-09
Parties: Muhammad Ayyaz Bin Tariq vs The State & another
This judicial decision was delivered by the Islamabad High Court on 2024-01-09. The matter involves proceedings between Muhammad Ayyaz Bin Tariq and The State & another, officially reported as 2023 PCRLJ 1092. The court reviewed applicable Pakistani statutes, procedural requirements, and governing case-law authorities. The full text below contains the complete facts, arguments, and legal reasoning rendered by the honorable bench.
Case cited as 2023 PCRLJ 1092
Court Name: Islamabad High Court Judge(s): Aamer Farooq, Babar Sattar, Arbab Muhammad Tahir Title: Muhammad Ayyaz Bin Tariq vs The State & another Case No.: Crl. Misc. No.1184-B-2023 Date of Judgment:2024-01-09 Reported As: 2024 IHC 122 Result: Order Accordingly
Judgment
ORDER Arbab Muhammad Tahir, J.- The questions of law referred to us relate to the joint trial of the offences provided under the Prevention of Electronic Crimes Act, 2016 (hereinafter "PECA") and Pakistan Penal Code, 1860 (hereinafter "PPC"). 2. We have heard the learned Additional Attorney General, learned amicus curiae and the learned counsels for the parties and perused the available record. 3. Firstly, we will examine the jurisdiction of the Special Judge appointed under section 3 of the Pakistan Criminal Law (Amendment) Act, 1958 (hereinafter "Act of 1958") to try offences under PECA. Section 3 of the Act of 1958 provides that the appropriate Government shall, by notification in the Official Gazette, appoint as many Special Judges as may be necessary to try and punish offences specified in the "Schedule". Sub-section (2) of section 3 provides that no person shall be appointed a Special Judge unless he is qualified to be a Judge of a High Court; or is or has been a Sessions Judge or an Additional Sessions Judge or an Assistant Sessions Judge or a District Magistrate or an Additional District Magistrate and has not retired from Government service or at any time been removed or dismissed from such service. Section 5 deals with "jurisdiction" and provides that the Special Judge so appointed under section 3 may take cognizance of any offence committed or deemed to have been committed within such limits and triable under the Act of 1958 upon receiving a complaint of facts which constitute such offence or upon a report in writing or such facts made by any police officer. Sub section (1) of section 5 provides that the offences specified in the "Schedule" shall be exclusively triable by a Special Judge, whereas, sub-section (2) provides that the appropriate Government may, from time to time, by notification in the official
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gazette, include in the Schedule such other offences as it deems necessary or expedient. Sub section (4) of section 5 provides that whenever an offence is included in the Schedule by a notification of the appropriate Government made under subsection (1), all cases relating to that offence pending in any Court other than the Court of a Special Judge immediately before such notification shall stand transferred to the Court of the Special Judge having jurisdiction over such cases. The Schedule to the Act of 1958 shows that the following offences are triable by the Special Judge.- (a) offences punishable under sections 161 to 166, 168, 217 and 218 of the Pakistan Penal Code(XLV of 1860), and as attempts, abetments and conspiracies in relation thereto or connected therewith, (b) offences punishable under sections 403 to 409, 417 to 420, 465 to 468, 471 and 477A of the Pakistan Penal Code(XLV of 1860), and as attempts, abetments and conspiracies in relation thereto or connected therewith, when committed by any public servant as such or by any person acting jointly with or abetting or attempting to abet or acting in conspiracy with any public servant as such. (c) Offences punishable under the Prevention of Corruption Act, 1947(II of 1947), and as attempts, abetments and conspiracies in relation thereto or connected therewith. 4. Section 44 of PECA deals with cognizance of offences and trial under PECA. Sub-section (1) of section 44 of PECA provides that the Federal Government, in consultation with the Chief Justice of the High Court, shall "designate" presiding officers of the Courts to try offences under PECA. Section 47 provides a right of appeal against the final judgment of the Court to the High Court if the order is passed by a "Court of Session" and to the Court of Session if the order is passed by the "Magistrate". The law does not envisage appointment of a new judge or establishment of a new court for trial of offences under PECA. Rather, it envisages designating presiding officers of the Courts. It is worth-mentioning here that the legislature in its wisdom has mentioned two forums i.e. Magistrate and Court of Session whose decisions are appealable in section 47 of PECA. 5. The Federal Government, in terms of section 44(1) of PECA, has designated the Judge, Special Court (Central), Islamabad for trial of offences in the Islamabad Capital Territory. It may be noted that the Judge, Special Court (Central), Islamabad has been appointed as by the Federal Government in exercise of the powers conferred under section 3 of the Act of 1958. The jurisdiction of the Special Judge appointed under the Act of 1958 is governed under sub section (1) of section 5 thereof. Sub-section (2) of section 5 of the Act of 1958 provides that the Federal Government is empowered to include in the Schedule such other offences as it deems necessary or expedient through notification in the official gazette. Nothing has been placed on record of this Court that the Federal Government has amended the Schedule to the Act of 1958 and included the provisions of PECA so as to enable the Special Judge to try such offences. Competence of a court to try offences and award conviction in its ordinary criminal jurisdiction is the condition precedent to designate such court under section 44(1) of PECA. The designation of a presiding officer under section 44(1) of PECA does not remove any inherent defect in the jurisdiction of such Court. Rather, it refers to identifying "presiding officers vested with ordinary criminal jurisdiction to try the offences" under PECA and to enable the Federal Government to arrange special training of such presiding officers by a notified entity in computer sciences, cyber forensics, electronic transactions and data protection. 6. Article 175(2) of the Constitution provides that "No court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law". As discussed above, the jurisdiction of the Special Judge (Central), Islamabad is controlled by section 5 of the Act of 1958 and restricted to the Schedule or any other predicate offence relating to the offences mentioned therein. Furthermore, he is not vested with ordinary criminal jurisdiction to try other offences. The defect in jurisdiction of the Special Judge (Central) to try offences, not included in the Schedule to
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the Act of 1958, is inherent and cannot be removed by "designating" him under section 44(1) of PECA. It is, therefore, held that the Special Judge (Central) is not competent to try offences under PECA and as such he cannot be designated under section 44(1) of PECA. 7. Section 6 of the Code of Criminal Procedure, 1898 (hereinafter "Cr.P.C.") provides that besides the High Courts and the Courts constituted under any law other than Cr.P.C. for the time being in force, there shall be two classes of Criminal Courts in Pakistan i.e. Courts of Session and Courts of Magistrate. Section 28 provides that subject to the provisions of Cr.P.C., offences under the Pakistan Penal Code may be tried, (a) by the High Court, or (b) by the Court of Session, or (c) by any other Court by which such offence is shown in the eighth column of the Second Schedule to Cr.P.C. to be triable. Section 29 provides that an offence under any other law shall, when any Court is mentioned in this behalf in such law, be tried by such Court, however, if no Court is so mentioned, then it may be tried by the High Court or the Court shown to be triable in the eighth column of the Second Schedule to Cr.P.C. Section 30 provides that notwithstanding anything contained in sections 28 and 29, the Provincial Government may invest any Magistrate of the First Class with power to try as a Magistrate all offences not punishable with death. Sub section (2) of section 31 provides that a Sessions Judge or Additional Sessions Judge may pass any sentence authorized by law, however, any sentence of death shall be subject to confirmation by the High Court. Section 32(1) provides that a Magistrate of the First Class may pass a sentence of imprisonment for a term not exceeding three years including such solitary confinement as is authorized by law. 8. The Federal Government can designate more than one presiding officers of the ordinary Criminal Courts (Magistrates appointed under section 30 of Cr.P.C., Additional Sessions Judges and Sessions Judges) for trial of offences under PECA, in terms of section 44(1) thereof. Although the Court of Special Judge is deemed as Court of Session, but such power is restricted for trial of offences mentioned in the Schedule and any other predicate offence. Allowing trials of all the offences under PECA by the Court of Session would amount to taking away the right of appeal provided under clause (b) of section 47, resultantly rendering this provision of law as redundant. It is settled law that redundancy cannot be attributed to the legislature. The Supreme Court in the case titled "Haji Tooti and another v. Federal Board of Revenue, Islamabad and others" [2023 PTD 1617] has held as follows.- "We have heard learned counsel as above and considered the provisions involved. In our view, the appeals must fail for the following reasons. Firstly, and with respect to the learned High Court, the order made by the concerned officer under section 181 is not in exercise of quasi-judicial functions. It is in exercise of a statutory power, and is in the nature of an administrative or executive order. Secondly, if the submissions made by learned counsel are accepted that would in effect reduce the second proviso of section 181 to redundancy. This would be so because any exercise of the statutory power thereby conferred would "interfere" with the power conferred on the officer of customs under the main part. The result would be that the power under the second proviso could never be exercised, i.e., would be made redundant. It is well settled that redundancy is not to be lightly imputed, and an interpretation that yields such a result is to be avoided if at all possible." 9. The provisions of Cr.P.C. are unambiguous. Most of the offences provided under PECA carry sentences, which can be tried by a Magistrate appointed under Section 30 Cr.P.C., except those cases where predicate offences may be triable by the Court of Session. The spirit of the provisions of PECA is that more than one presiding officers of the ordinary criminal courts should be designated under section 44(1) thereof for trial of offences under PECA. This would save clause (b) of section 47 from being rendered redundant. It may be noted that the court of Magistrate appointed under section 30 is subordinate to the Court of Sessions under section 17 Cr.P.C. The orders passed by the Magistrate appointed under Section-30 are appealable under section 408 Cr.P.C. before the Court of Sessions.
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10. "Every son of Adam commits error; among those who commit error those who repent are the best" (Sunan al-Tirmidhi, Abwab Sifat al-Qiyamah, Hadith No.2499). Human beings can commit errors and that whenever an error in a judgment becomes apparent, it needs to be corrected. That is why the right of appeal has been recognized as the integral part of criminal justice system. The Shariat Appellate Bench of the Supreme Court in the cases titled "Federation of Pakistan v. General Public [PLD 1988 SC 202] and Pakistan v. General Public [PLD 1989 SC 6] has declared that the injunctions of Islam mandate atleast one appeal as a matter of right. Chapter XXXI Cr.P.C. deals with appeal, reference and revision. It provides that an appeal from the order/judgment of the Magistrate shall lie to the Court of Sessions, and to the High Court from the order/judgment of the Court of Sessions, with few exceptions. Similarly, sections 435 to 439 of Cr.P.C. empowers the Court of Sessions and the High Court to call for and examine the record of any proceedings before any subordinate Criminal Court situated within the local limits of its or his jurisdiction for the purpose of satisfying itself or himself as the 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 subordinate Criminal Court. The High Court and Court of Session are empowered under section 439 and 439-A Cr.P.C. to exercise discretion any the powers conferred on a Court by section 423, 426, 427 and 428 or on a Court by section 338 and may enhance the sentence, subject to sub section (4) of section 439 Cr.P.C. There is no cavil with the proposition that if the trials of offences under PECA are allowed to be conducted by the Court of Session, even then one right of appeal would be protected. However, in the case at hand, the legislature has provided two different forums of appeals against decisions of two different Criminal Courts. It is settled law that where a law requires an act to be done in a particular manner it ought to be done in that manner alone and such dictate of law cannot be termed as technicality. Reliance is placed on the case "Muhammad Anwar etc versus Mst. Ilyas Begum, etc" [PLD 2013 S.C. 255]. Allowing trials of the offences under PECA by one Court i.e. Court of Session will not only render the statutory provision redundant, but simultaneously defeat intention of the legislature in enacting the provisions of section 47 of PECA. The provisions of PECA, therefore, make it mandatory for the Federal Government to designate presiding officers of the ordinary criminal courts for trial of offences mentioned therein. 11. Before responding to the question whether the offences under PPC and PECA can be combined and tried in one trial, it would be relevant to discuss the Judgment of the Supreme Court rendered in the case titled "Sughran Bibi v. The State" [PLD 2018 SC 595]. 12. In 2018, a Larger Bench of the Supreme Court comprising of seven Hon'ble Judges considered its own earlier judgments as well as judgments rendered by the High Courts on the question of registration of second FIR in respect of one occurrence i.e. "offences committed in one transaction". The Supreme Court mainly considered the following different views.- (i). Precedent cases wherein it has been declared quite categorically that there is to be only one FIR in respect of an occurrence wherein a cognizable offence has been committed and any other version of the same incident advanced by any person during the investigation of the case is to be recorded under section 161, Cr.P.C. (ii). Precedent cases decided by different High Courts wherein it has been held that after registration of an FIR a new version of the same incident depicting a different story and a different set of accused persons can be recorded through a separate FIR.(iii). Precedent cases wherein different High Courts have clarified that a separate FIR is to be registered if the new version being advanced pertains to a different occurrence or discloses commission of a different cognizable offence. (iv). Earlier judgments wherein the Supreme Court took different views relating to registration of second FIR.
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In the referred case, the Supreme Court after examining the provisions of relevant laws observed that the power to investigate is relatable to the offence and is not confined to the circumstances reported to the police through the first information reduced to writing as an FIR. The first information only sets the ball rolling and the investigations are conducted about "the facts and circumstances of the case", not just those reported by the first informant but including any other information received through any other informant or source. Furthermore, the investigation of a case is not restricted to the version of the incident narrated in the FIR or the allegations leveled therein. Once an FIR is registered then the investigating officer embarking upon investigation may not restrict himself to the story narrated or the allegations leveled in the FIR and he may entertain any fresh information becoming available from any other source regarding how the offence was committed and by whom it was committed and he may arrive at his own conclusions in that regard. The final report to be submitted under section 173, Cr.P.C. is to be based upon his final opinion and such opinion is not to be guided by what the first informant had stated or alleged in the FIR. The Supreme Court after discussing in detail its earlier judgments as well as judgments rendered by High Courts, passed the following declarations.- (i). According to section 154, Cr.P.C. an FIR is only the first information to the local police about commission of a cognizable offence. For instance, an information received from any source that a murder has been committed in such and such village is to be a valid and sufficient basis for registration of an FIR in that regard. (ii). If the information received by the local police about commission of a cognizable offence also contains a version as to how the relevant offence was committed, by whom it was committed and in which background it was committed then that version of the incident is only the version of the informant and nothing more and such version is not to be unreservedly accepted by the investigating officer as the truth or the whole truth. (iii). Upon registration of an FIR a criminal "case" comes into existence and that case is to be assigned a number and such case carries the same number till the final decision of the matter. (iv). During the investigation conducted after registration of an FIR the investigating officer may record any number of versions of the same incident brought to his notice by different persons which versions are to be recorded by him under section 161, Cr.P.C. in the same case. No separate FIR is to be recorded for any new version of the same incident brought to the notice of the investigating officer during the investigation of the case. (v). During the investigation the investigating officer is obliged to investigate the matter from all possible angles while keeping in view all the versions of the incident brought to his notice and, as required by Rule 25.2(3) of the Police Rules, 1934 "It is the duty of an investigating officer to find out the truth of the matter under investigation. His object shall be to discover the actual facts of the case and to arrest the real offender or offenders. He shall not commit himself prematurely to any view of the facts for or against any person." (vi). Ordinarily no person is to be arrested straightaway only because he has been nominated as an accused person in an FIR or in any other version of the incident brought to the notice of the investigating officer by any person until the investigating officer feels satisfied that sufficient justification exists for his arrest and for such justification he is to be guided by the relevant provisions of the Code of Criminal Procedure, 1898 and the Police Rules, 1934. According to the relevant provisions of the said Code and the Rules a suspect is not to be arrested straightaway or as a matter of course and, unless the situation on the ground so warrants, the arrest is to be deferred till such time that sufficient material or evidence becomes available on the record of investigation prima facie satisfying the investigating officer regarding correctness of the allegations levelled against such suspect or regarding his involvement in the crime in issue.
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(vii). Upon conclusion of the investigation the report to be submitted under section 173, Cr.P.C is to be based upon the actual facts discovered during the investigation irrespective of the version of the incident advanced by the first informant or any other version brought to the notice of the investigating officer by any other person. (viii). As an FIR had been registered in the present case regarding the same occurrence and the offences allegedly committed therein and upon completion of the investigation of the case a Challan had been submitted before the trial court and as the present petitioner had instituted a private complaint depicting her version of the same incident and after summoning of the accused persons nominated therein a trial is already in progress in connection with that private complaint, therefore, ordering registration of another FIR based upon the petitioner's version of that very incident is not legally warranted. This petition is, thus, dismissed. The Supreme Court in Sughran Bibi's case supra has conclusively settled the law that only one criminal case shall be registered in respect of one occurrences/offences committed in one transaction. 13. The term "offences committed in the course of the same transaction" was considered by the Supreme Court of India in the case titled "Anju Chaudhary v. State of U.P. & Anr" [AIR 2013 SC (Criminal) 315] wherein it was held that it is true that law recognizes common trial or a common FIR being registered for one series of acts so connected together as to form the same transaction as contemplated under Section 220 of the Code (India CrPC). There cannot be any straight jacket formula, but this question has to be answered on the facts of each case. Reference was made to its earlier judgment rendered in the case of Mohan Baitha v. State of Bihar [(2001) 4 SCC 350], wherein it was held that the expression same transaction' from its very nature is incapable of exact definition. It is not intended to be interpreted in any artificial or technical sense. Common sense in the ordinary use of language must decide whether or not in the very facts of a case, it can be held to be one transaction. It was further held that in order to determine the whether two or more acts constitute the same transaction; things are to be gathered from the circumstances of a given case indicating proximity of time, unity or proximity of place, continuity of action, commonality of purpose or design. Where two incidents are of different times with involvement of different persons, there is no commonality and the purpose thereof different and they emerge from different circumstances, it will not be possible for the Court to take a view that they form part of the same transaction and therefore, there could be a common FIR or subsequent FIR could not be permitted to be registered or there could be common trial. The test to be applied to determine whether several offences have been committed in the same transactions is, they are so related to one another in point of purpose or of cause and effect, or as principal and subsidiary, so as to result in one continuous action. 14. Similarly the Supreme Court of Pakistan in the case titled "MD. Mosaddar Haque & another v. The State" [PLD 1958 SC (Pak.) 131] has considered the term "the same transaction" and held that the expression "transaction" is not defined in Cr.P.C. which leaves it to the Court to determine whether a given set of facts do or do not constitute "the same transaction" within the meaning of sections 235 and 239. It was held that in dealing with the question as to what constitutes "the same transaction" Courts, while indicating that the tests to be employed are proximity of time and place, community of purpose or design and, continuity of action, have also pointed out that the two latter are the essential elements which are necessary in order to link together different acts into the same transaction. Proximity of time and place by themselves are insufficient. The Supreme Court observed that community of purpose or design and continuity of action are sine qua non to link together separate acts so as to constitute one transaction. In this case, reference was made to "Emperor v. Datto Hanmant Shahapurkar" [I L R 30 Born. 49] which was referred to by their Lordships of the Privy Council with approval in "Babulal Chaukhani v. King Emperor" (65 I A 158)
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wherein it was held that according to its etymological and dictionary meaning the word `transaction' means `carrying through' and suggests, we think, not necessarily proximity in time-so much as continuity of action and purpose. The same metaphor implied by that word is continued in the illustrations where the phrase used is in the course of the `same transaction'. In section 239, therefore, a series of acts separated by intervals of time are not, we think, excluded, provided that those jointly tried have throughout been directed to one and the same objective. Reliance is also placed on the cases titled Noor Ahmad v. The State" [PLD 1964 SC 120], Azam Shah v. The State" [1990 SCMR 1360], "The State v. Barajuddin Mondal and others" [PLD 1962 Dacca 424], "Kameshwar and another v. State" [AIR 1958 Allahabad 318], "Omar Bin v. The State" [AIR 1954 SAU 15], and "Mehr Khan v. The State"…
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