2008 P Cr.

L J 445

[Shariat Court (AJ&K)]

Before Iftikhar Hussain Butt, J

MUHAMMAD YOUSUF and 8 others----Petitioners

Versus

THE STATE and another----Respondents

Criminal Revision Petition No.40 of 2007, decided on 24th January, 2008.

(a) Criminal Procedure Code (V of 1898)---

---S. 561-A---Penal Code (XLV of 1860), Ss.302, 324, 147, 148 & 149---West Pakistan
Arms Ordinance (XX of 1965), Ss.13, 14 & 14-A---Azad Jammu and Kashmir Islamic
Penal Laws Enforcement Act (IX of 1974), S.23(5)---Quashing of proceedings---
Proceedings were sought to be quashed on the ground that offence punishable under S.13
or 14 of West Pakistan Arms Ordinance, 1965 was triable by a Magistrate of 1st Class
under S.14-A of the Ordinance, though said offences had been committed in conjunction
with an offence of murder---Accused contended that Trial Court having committed an
illegality while proceeding with all the cases together, its proceedings were nullity in the
eye of law which needed to be quashed and the cases registered under West Pakistan
Arms Ordinance, 1965 were to be sent to the Magistrate of 1st Class for hearing and
disposal---Validity---Trial Court in the case had consolidated all the three challans after
framing the charges, but said order was not challenged by the petitioner before any forum
within the prescribed period of limitation and it had attained finality---Even otherwise,
submission of counsel for the petitioners was not tenable being misconceived and without
any substance as under provisions of S.23(5) of Azad Jammu and Kashmir Islamic Penal
Laws Enforcement Act, 1974, if during an occurrence, an accused committed another
offence which was not triable by that court, inspite of that the Trial Court was empowered
to hear and dispose of the case in all the offences mentioned in the challan---District
Criminal Court was fully empowered to hear and dispose of the case in accordance with
law---Trial Court, in circumstances had not committed any illegality which could be
made basis for the quashing of the proceedings.

PLD 1973 (Note) 137; PLD 1989 Pesh. 162; 1990 PCr.LJ 449; 1991 PCr.LJ 1558 and
1993 PCr.LJ 474 rel.

(b) Interpretation of statutes---

----Special Act would oust the jurisdiction of general law and law whenever special law
would prescribe certain situation, the particular and procedure had to be followed and the
provisions of general law had to be ignored.

Azad Government and 3 others v. Genuine Rights Commission AJ&K and 7 others 1999
MLD 268 rel.

Mirza Muhammad Nisar for Petitioners.

Malik Muhammad Saleem for Respondent No.2.

Riaz Naveed Butt, Addl. A.-G. for the State.

ORDER

IFTIKHAR HUSSAIN BUTT, J.--- This revision petition has been directed against an
order of District Court of Criminal Jurisdiction, Kotli, dated 6-6-2007, whereby an
application for quashment of the proceedings was dismissed.

Page No. 1 of 3
The facts precisely stated are that a Case No.257 of 2003 was registered on the pretext of
a written F.I.R. against the accused-petitioners including some other persons on 23-9-
2003. After necessary investigation, the petitioners were sent to face trial before District
Criminal Court, Kotli on 22-11-2007 in offences under sections 302, 324, 147, 148 and
149. On 24-11-2003, two separate challans were filed against Zaffar Iqbal, petitioner
No.5, and Imran, petitioner No.7, under section 13/20/65, Arms Act. On 16-12-2003, the
charge was framed against all the accused-petitioners in murder case whereas on the same
day charge was also framed against Zaffar Iqbal and Imran, accused persons, in cases
registered against them under Arms Act. After framing the charge, the trial Court
consolidated all the three challans and ordered that the trial Court will proceed in murder
case along with other cases pertaining to the Arms Act. Thereafter, the trial Court
proceeded with the trial and recorded the prosecution evidence. After completion of the
prosecution evidence, the salient features of the prosecution evidence were put to the
accused persons for their explanation on 5-1-2007 but the accused persons denied the
prosecution evidence and submitted to produce defence evidence. On 21-1-2007, the
learned defence counsel submitted that only documentary evidence will be produced in
defence. On 3-2-2007, the learned defence counsel filed an application for spot inspection
and finally on 4-6-2007 the defence counsel instituted the aforesaid application for
quashment of the proceedings which was dismissed by the Court below vide its order,
dated 6-6-2007. Hence, this revision petition.

Mirza Muhammad Nisar, the learned counsel for the accused petitioners argued that
under section 14(A), Arms Act, an offence punishable under section 13 or section 14,
Arms Act is triable by a Magistrate of the 1st Class, although the said offences had been
committed in conjunction with an offence of murder. According to the learned counsel,
the trial Court has committed an illegality while proceeding with all the cases together,
therefore, the proceedings of the trial are nullity in the eye of law which may be quashed
and the cases registered under the Arms Act may be sent to the Magistrate of the 1st Class
for hearing and disposal. In support of his contentions, the learned counsel relied upon
the following authorities:--

(1) PLD 1973 (Note) 137 Lahore, (2) PLD 1989 Pesh. 162, (3) 1990 PCr.LJ 449, (4)
1991 PCr.LJ 1558 and (5) 1993 PCr.LJ 474.

Malik Muhammad Saleem, the learned counsel for the complainant, controverted the
arguments raised by the learned counsel for the petitioners and submitted that all the three
files were consolidated vide order, dated 16-12-2003, but the aforesaid order was not
challenged by the petitioners; therefore, it has attained finality. The learned counsel
pointed out that the accused persons have fully explained the evidence pertaining to the
recovery of illegal Arms during their examination under section 342, Cr.P.C. The learned
counsel maintained that the trial Court has rightly consolidated all the three files and
proceeded with the case in a legal fashion; therefore, it does not warrant any interference
by this Court.

Riaz Naveed Butt, the learned Additional Advocate-General appearing on behalf of the
State, has defended the impugned order on all counts.

I have very carefully attended to the submissions made at bar in the light of material
available on the record and also perused the case-law cited. At the very outset, it will be
relevant to point out that the trial Court consolidated all the three challans on 16-12-2003
after framing the charge-sheets but the aforesaid order was not challenged before any
forum within the prescribed period of limitation; therefore, it has attained finality. Even
otherwise, the submission of the learned counsel for the petitioners is not tenable being
misconceived and without any substance. The plain reading of section 23(5), Islamic
Penal Laws Enforcement Act, 1974 (hereinafter to be referred as IPL) shows that if
during an occurrence an accused commits another offence which is not triable by that
Court inspite of that, the trial Court is empowered to hear and dispose of the case in all
the offences mentioned in the challan. In order to appreciate the legal position, it will be
fruitful to examine the provisions contained in section 23(5), IPL. It is reproduced
below:--

A perusal of the above stated section makes it crystal clear that the District Criminal
Court was fully empowered to hear and dispose of the case in accordance with law.
Page No. 2 of 3
As far as the authorities referred to by the learned counsel for the petitioners are
concerned, deal with an amended section 14(A), Arms Act, whereas in Azad Jammu and
Kashmir the procedure prescribed for the trial of criminal cases is covered by IPL
mentioned above and not by the Criminal Procedure Code.

It is an enriched principle of law that special Act ousts the jurisdiction of General Law
and whenever special Law prescribes certain situation, the particular law and procedure
has to be followed and the provisions of General Law have, to be ignored. A host of case-
law owns this view but I have decided to quote only the following case. Azad
Government and 3 others v. Genuine Rights Commission Azad Jammu and Kashmir and
7 others 1999 MLD 268. The relevant portion of the judgment at page 319 reads as
under:--

"It is well-settled principle of law that when a particular situation is covered by a special
enactment, the provisions contained in a general statute stand ousted."

It will thus, be noticed that while dealing with the instant case, the procedure prescribed
by IPL shall be followed and the provisions of section 14(A), Arms Act have to be
ignored. In this manner, the trial Court has not committed any illegality which could be
made basis for the quashment of the proceedings. The case is at the stage of final
arguments; therefore, the trial Court is directed to dispose of the case in an expeditious
manner.

The nutshell of the above discussion is that finding no force in this revision petition, it is
hereby dismissed.

H.B.T./1/Sh.C.(AJ&K) Petition dismissed.

Page No. 3 of 3
2008 Y L R 2205

[Lahore]

Before Syed Shabbar Raza Rizvi, J

Haji MUHAMMAD RAFIQUE---Petitioner

Versus

DIRECTOR GENERAL ANTI-CORRUPTION ESTABLISHMENT, PUNJAB and 3

others---Respondents

Writ Petition No.4199 of 2008, decided on 20th June, 2008.

(a) Prevention of Corruption Act (II of 1947)---

----S.5---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of

F.I.R.----Inquiry Officer himself stated before Court that no proof of illegal gratification
was produced by complainant, therefore, it was not mentioned in findings of inquiry---
Effect---Provisions of S.5 of Prevention of Corruption Act, 1947, in such circumstances,
were not attracted---High Court declared the F.I.R. without lawful authority and quashed
the same---Petition was allowed in circumstances.

(b) Interpretation of statutes---

----Special and general law---Applicability---Scope---In presence of special law, general

law is not applied.

(c) Constitution of Pakistan (1973)---

----Art.199---Constitutional jurisdiction of High Court---Scope---Investigation of

criminal case---High Court, in exercise of Constitutional jurisdiction, is competent to
pass appropriate orders where investigation is mala fide or without jurisdiction---High
Court must step-in to investigate such facts under Constitutional jurisdiction conferred on
it under Art.199 of the Constitution and pass such order as may be found just, legal and
equitable taking into the facts and circumstances of each case.

Muhammad Latif Asi v. Sharifan Bibi 1994 SCMR 666; Government of Sindh v. Raeesa
Farooq and others 1994 SCMR 1283; 2002 YLR 1104; 2005 YLR 1329 and 2008 SCMR
76 rel.

Azam Nazeer Tarar for Petitioner.

Malik Ghulam Rasool for accused Persons.

Ch. Muhammad Ishaque Khokhar for the Complainant.

Muhammad Nawaz, Bajwa, A.A.-G.

Arshad Liaquat Ch., Ex.DD (Investigation).

Mian Ghulam Murtaza DD(L).

Raja Zubair DD(L) Hq.

ORDER

SYED SHABBAR RAZA RIZVI, J.----The learned counsel filed this writ petition on
behalf of the petitioner, wherein three officers of Anti-Corruption Establishment were
made respondents with prayer: that impugned notices Annex-I and J emanating from
respondents Nos. 1 to 3 be declared without lawful authority and till the final decision of
the writ petition operation of the impugned notices be also stayed. The writ petition was
Page No. 1 of 7
fixed and heard by my learned brother Abdul Shakoor Paracha, J, on 23-4-2008.
Respondent No.3 was directed to file report and parawise comments. The case was
adjourned for 14-5-2008 for further proceedings. It was also directed that in the
meanwhile respondents shall not cause harassment to the petitioner and his family
members. On 14-5-2008, it was submitted before his Lordship that F.I.R. No. 66 dated
23-4-2008 had already been registered at Police Station Anti Corruption, Lahore. In view
of the above, the learned counsel for the petitioner was allowed to amend the writ
petition. In C.M. No.4 of 2008, complainant of the F.I.R., namely, Ch. Niamat Ali Nagra,
Advocate was allowed to become a party. He was ordered to be arrayed as respondent
No.4. My learned brother, Abdul Shakoor Paracha, J began holding his Court at
Rawalpindi Bench, hence the office fixed the present writ petition before me.

2. The learned counsel for the petitioner vigorously contended that the impugned F.I.R.
was registered despite order of the Court dated 23-4-2008 and pendency of the instant
writ petition. This is a clear disobedience and disrespect to this Court. He also submitted
that the impugned F.I.R. was registered on the basis of mala fide on part of the
complainant as well as respondents ACE Officers. He also contended that in the facts and
circumstances of the instant case, Anti-Corruption Establishment was not competent to
register a case. The learned Law Officer was directed to seek a report from respondent
No.1 the officer who had conducted the inquiry prior to registration of the F.I.R. was also
directed to appear with record. The operation of the impugned F.I.R. was suspended and
for further proceedings case was fixed for 11-6-2008.

3. On 11-6-2008, respondent No.1 failed to submit report. Likewise, the officer who had
conducted the inquiry also failed to appear whereupon the office was directed to issue
notices to the Director-General, ACE and other officers as to why contempt proceedings
be not initiated against them under Article 204 of the Constitution of Islamic Republic of
Pakistan, 1973. The other accused nominated in the impugned F.I.R. No.66 of 2008 were
also issued notices. The respondents were again directed to file their reports/replies. On
18-6-2008, respondent No.4 requested for a short adjournment as his counsel was unwell.
Amongst other accused, Rai Muhammad Ashraf was represented by Malik Ghulam
Rasool, Advocate. The petitioner was represented by Mr. Hassan Nawaz, Advocate.
However, the proceedings did not proceed in view of request of respondent No.4 as well
as providing opportunity to the other accused who were not represented in the Court.

4. Today, all the parties are represented by their respective learned counsel. Mr. Azam
Nazeer Tarar, Advocate opened his arguments on behalf of the petitioner. According to
the learned counsel, registration of F.I.R. No.66 of 2008 is an outcome of a mala fide,
etc., on behalf of the complainant; the respondents were not competent under the law to
register the F.I.R. as section 5 of the Prevention of Corruption Act, 1947 is not attracted
and inquiry was not conducted according to the rules; moreover, final findings of the
Inquiry Officer observed that violation of the Punjab Private Site Development Schemes
(Regulation) Rules, 2005 was committed by the petitioner and other accused and there
was no mention in the inquiry report that any money or illegal gratification was received
by the accused who are government officials. The learned counsel while giving the
background of the registration of the F.I.R. submitted that respondent No.4/complainant
of the impugned F.I.R., had been working as a Legal Advisor of the petitioner but
somehow some differences developed between them. According to him, one electricity
transformer was installed in the housing scheme in front of respondent No.4's house
which also annoyed respondent No.4; though the transformer was installed by the
WAPDA officials and petitioner did not have anything to do with the installation. He
further submitted that civil suit is also pending filed by respondent No.4 before the civil
Court wherein subject-matter is same as in impugned F.I.R. According to him, inquiry
was not conducted as required under rules, 5, 6 and 7 of Rules, 1985. According to him,
his Lordship Abdul Shakoor Paracha, J. was seized with this case and also had directed
respondents not to harass the petitioner and his family yet the impugned F.I.R., was
registered by which the respondents caused disrespect to the authority and sanctity of this
Court. According to him, the order dated 23-4-2008 was passed by his Lordship in the
presence of learned A.A.-G. who did inform the respondents about order of this Court yet
F.I.R. was registered in a haste. He also referred to contents of F.I.R., to argue that F.I.R.
was mala fide and incompetently registered. The learned counsel also drew attention of
this Court to an inquiry report dated 14-2-2007, which also related to similar allegations
against the petitioner but the Inquiry Officer had declared the allegations/ complaint
Page No. 2 of 7
without any substance and inquiry was dropped. The learned counsel has put a lot of
emphasis that in any case if any irregularity has been committed by the accused persons
including the petitioner, that may attract provisions of "The Punjab Private Site
Development Schemes (Regulation) Rules, 2005" (hereinafter to be referred as Rules,
2005) and not of the P.C.A. 1947. In support of his contentions, the learned counsel has
referred to 1994 SCMR 666, 2003 SCMR 1339.

5. The government officials/accused are represented by Malik Ghulam Rasool, Advocate.

According to the learned counsel, bald allegation of graft has been levelled against the
accused which has no truth. While elaborating his point, he submitted that no witness is
mentioned before whom the so-called amount was paid by petitioner or received by
accused person. Even no date is mentioned and no place of occurrence is mentioned in
the F.I.R. According to him, only L.D.A. is competent to take notice of such complaints,
if at all there are some complaints against the accused persons from any quarter including
the complainant of the F.I.R. In this context, the learned counsel referred to section 13(2)
of Rules, 2005.

6. The Deputy Director Legal on a question from Court stated payment of illegal
gratification was not a subject-matter before the Inquiry Officer, therefore, no finding was
given on this point. The question before the Inquiry Officer was redemption of 50% of
the mortgaged plots within 20 days in violation of Rules, 2005. The learned Assistant
Advocate-General, Punjab submitted that no proof was submitted before the Inquiry
Officer regarding illegal gratification to shield violation of rule 13. According to the
Inquiry Officer present in the Court, no proof of illegal gratification was produced by the
complainant, therefore, no finding was given on this point in the final findings of the
inquiry.

7. The learned counsel for respondent No.4 complainant of the F.I.R. submitted that
respondent No.4 holding office of Law Officer of the petitioner does not reflect any mala
fide. According to the learned counsel, regarding complaint of installation of transformer,
respondent No.4 filed civil suit which is pending, wherein, petitioner made a statement
that he would remove the transformer from the disputed place to install the same at the
place recommended by respondent No.4. This statement, according to the learned
counsel, was made by petitioner on 4-12-2007, whereas complaint to Anti-Corruption
Establishment was made on 8-3-2008. According to him, in preliminary inquiry, all
accused were summoned. The petitioner did not appear, however, his representative
attended inquiry proceedings. The then Inquiry Officer, after conducting preliminary
inquiry recommended for regular inquiry. Upon the above recommendation, a panel
consisting of three officers held the regular inquiry, following which the impugned F.I.R.
was registered. According to the learned counsel, respondent No.4/complainant of the
F.I.R. built his house in the society after payment of all expenses. In this regard, he
referred to certificate dated 23-11-2004. According to him, mutation was also sanctioned
in his favour according to the rules including completion certificate. According to him,
the earlier inquiry report was filed by a person who is not resident in the Green City
Scheme and the grievance in the said complaint has no real nexus with the real issues
raised in the instant F.I.R. The learned counsel for respondent No.4 also referred to rules
4 and 8(4)(iii) and submitted that Rules, 2005 were made to safeguard the legitimate
interest of landowners, potential buyers and the general public. According to him,
petitioner and other accused clearly violated the above rules. The learned counsel referred
to, in support of his contention 2005 YLR 1104, 2008 SCMR 76 and 1994 PCr.LJ 856.

8. I have heard the learned counsel for the parties at length. I have also heard the learned
Assistant Advocate-General, Punjab. The accused persons in the Court where also
provided ample opportunity to put across their point of view. I considered the
submissions made by the above persons carefully. I have also examined the record and
Rules, 2005 with assistance of the officers above-mentioned.

9. Final inquiry report discloses the following findings:--

"The version of the complainant embodied in his complaint as well as in his detailed
statement, defence statements of respondent Public Servants namely, Muhammad Ashraf
TO(P&C) and Muhammad Jahangir, Enforcement Inspector TMA, Aziz Bhatti Town, site
inspection report of Technical Wing of this establishment and the record available on the
Page No. 3 of 7
file has been perused minutely. It has been established beyond any reasonable doubt that
the total number of mortgaged plots were 30% of the total area of the Housing Scheme
but 50% plots were redeemed only after 20 days without completing the development
works, without any authority and contrary to mortgage deed. According to the Bye-Laws
of the society at least 2% area was required to be reserved for the graveyard but no area
was left for the graveyard despite the fact that the same was shown in the approved plan.
Moreover, commercial plaza has been constructed upon the area shown as graveyard in
the site plan without approval of building plan. The record has further revealed that the
partial redemption of plots was not the condition in the Bye-Laws of the society but the
same has been got done by the functionaries of the society in collusion with the officers
of TMA Aziz Bhatti Town, Lahore. The above are some examples of illegalities
committed by the respondents and the same have been, prima facie, established from the
perusal of the record and the site inspection. Several other circumstances of incriminating
nature, will certainly be gleaned out if case is registered against the delinquents. So ROC
is recommended against the following:--

(1) Muhammad Rizwan TMO Aziz Bhatti Town, Lahore.

(2) Rai Muhammad Ashraf TO(P&C) Aziz Bhatti Town.

(3) Javed Iqbal Bajwa, TO(R) Aziz Bhatti Town, Lahore.

(4) Muhammad Jahangir, Enforcement Inspector Aziz Bhatti Town, Lahore.

(5) Haji Muhammad Rafique Chairman of Housing Scheme.

It may be noted that no allegation or finding is made in the above findings regarding
payment of any money by any person to the Government Officials referred to above as
accused persons. It may also be pointed out that 5 persons were mentioned to be
nominated in the F.I.R. including the present petitioner. However, the F.I.R., includes
names of Mst. Fazeelat, wife of the petitioner, Sarfraz Rafiq, son of the petitioner, Ijaz
Rafiq son of the petitioner, Usman Javed Saroopa as accused, whose names were never
recommended by the Inquiry Officer/officials in the final report. It may also be pointed
out that case was recommended to be registered against Muhammad Rizwan TMO, Javed
Iqbal Bajwa TO(R), Muhammad Jehangir Enforcement Inspector but they are not
nominated in the F.I.R. Muhammad Rizwan TMO though was recommended to be
nominated in the F.I.R. but during the inquiry he was never summoned. The record does
not show that he was ever summoned or any notice was issued to him. Respondents
present in the Court when asked, could not offer any explanation to the above fact that
smells a rat i.e. mala fide.

10. According to the Deputy Director Legal, section 5(b) of Prevention of Corruption Act,
1947 is attracted in the light of the findings of the inquiry report. Section 5(1)(b) is
reproduced as under:--

"If he (public servant) accepts or obtains or agrees to accept or attempts to obtain for
himself or for any other person, any valuable thing without consideration or for a
consideration which he knows to be inadequate, from any person whom he knows to have
been or to be likely to be concerned in any proceeding or business transacted or about to
be transacted by him, or having any connection with the official functions of himself or
of any public servant to whom he is subordinate, or from any person whom he knows to
be interested in or related to the person so concerned."

The findings of the inquiry report have already been reproduced above which do not
mention, at all, that officials/accused accepted or agreed to accept or attempted to obtain
any valuable thing, instead according to the statement of Deputy Director Legal, it was
not a subject-matter of the inquiry. According to the statement of learned A.A.-G., no
proof was placed before the Inquiry Officers of any financial corruption. The Inquiry
Officer himself stated before the Court that no such proof of illegal gratification was
produced by the complainant, therefore, it was not mentioned in the findings of the
inquiry. In the above circumstances, I wonder how section 5 is attracted in the facts and
circumstances of the present case.

Page No. 4 of 7
11. The Rules, 2005 provide at the very outset that these Rules are enacted for facilitating
development of private housing schemes while safeguard the legitimate interests of land
owner, potential buyers and the general public. The said Rules were framed in exercise of
powers conferred upon the competent authority under section 191 of the Punjab Local
Government Ordinance, 2001. These Rules are applicable to the entire Province of the
Punjab except the areas notified as Cantonments. Rule 4 provides pre-requisites of
housing schemes which are required to be submitted to the development authority or
scrutiny committee, as the case may be. After fulfilling the pre-requisites, objections shall
be invited to the proposed scheme which shall be communicated to the developers within
three days. Required sanction is to be issued under rule 8. If the development authority or
Tehsil Municipal Administration, as the case may be, proceed to sanction the scheme,
then prior to issuance of such sanction it shall require Developer to fulfil within 15 days
the following requirements:

(i) ------------

(ii) -----------

(iii) mortgage 20% of the saleable area of the Scheme or furnish Bank guarantee of
National Bank of Pakistan or The Bank of Punjab equivalent to the total cost of
development works as security for due completion of development works in the name of
Development Authority or Tehsil Municipal Administration, as the case may be."

According to rule 11, the mortgaged plots shall be released by the Development
Authority or Tehsil Municipal Administration, as the case may be, on obtaining field
reports from the concerned departments and authorities about the satisfactory completion
of development works in the following order and proportion, respectively:

(i) water supply, sewerage and drainage system 30%.

(ii) roads 30%

(iii) electricity 30%

(iv) street light and horticulture 10%

According to rule 13, no person shall develop a Scheme except in conformity with these
rules. According to sub-rule (2) of rule 13, if the scheme is not developed within
stipulated period or if the development is not in conformity, with terms of sanction, the
Development Authority or the Tehsil Municipal Administration, as the case may, may
take over the development of the scheme and execute necessary works from the proceeds
of sale of mortgaged plots or encashment of Bank guarantee. In case of difference, the
same may be recovered from the Developer as arrears of land revenue. Rule 14 provides
that any person aggrieved by an order of Development Authority or Tehsil Municipal
Administration, as the case may be, may prefer an appeal before the Secretary,
Government of the Punjab, Local Government and Rural Development Department. Rule
15- provides that the Provincial Government may call for and examine the record of any
proceedings for the purpose of satisfying itself to the correctness, legality or propriety of
sanction of Scheme, recommendations, observations, penalty or order recorded or passed
and as to the regularity of any proceedings. Sub-rule (2) of rule 15, reads that on
examining the record, the Government may pass such order as it deems fit, but before
cancelling or recalling sanction of the Scheme, the Government shall afford the
Developer an opportunity of being heard.

12. The reading of the above rules of Rules, 2005 clearly shows that even if the findings
of the inquiry report are totally believed, the petitioner and other accused nominated in
the F.I.R. could be held as violators of the above-mentioned Rules and not section 5
P.C.A. 1947. Rule 13, reads as under:--

"No person shall develop a Scheme except in conformity with these rules."

According to rule 11, the mortgaged plots shall be released by the Development
Authority or Tehsil Municipal Administration, as the case may, on obtaining field reports
Page No. 5 of 7
from the concerned department and authorities about the satisfactory completion of
development works. The 20% of plots of the saleable area are already mentioned with
reference to rule 8(4)(iii). At this point. of time, allegation in the impugned F.I.R. may
also be mentioned. According to the F.I.R., accused (petitioner) Haji Muhammad Rafiq
executed a mortgaged deed vide No.4210, Bahi No.1, Book No.570, dated 27-4-2005 in
favour of TMA Aziz Bhatti Town as a security for the provisions of services of
development work, but only after one month mortgaged plots were redeemed without
completing development works vide document No.5532, Bahi No.596, dated 30-5-2005.
According to the F.I.R., the plan was approved without observing codal formalities by the
TMA Officials. The graveyard of Mauza Calass was shown as graveyard of the Scheme.
According to the inquiry report, a commercial plaza was built on the land of the
graveyard. Against all these grievances, the respondent No.4 could avail remedy provided
under rule 14, which, for convenience, is reproduced as under: --

"Any person aggrieved by an order of Development Authority or Tehsil Municipal

Administration, as the case may be, may prefer an appeal before the Secretary,
Government of the Punjab, Local Government and Rural Development Department."

The Secretary, Government of the Punjab/Government has been vested with vast powers
under rule 15, but the same has not been done.

13. The Punjab Private Site Development Schemes (Regulation) Rules, 2005 have been
enacted as a special law, under authority of section 191 of the Punjab Local Government
Ordinance, 2001. It is a known principle of the law that in presence of a special law,
general law is not applied. In the facts and circumstances of the present case, special law
has been totally ignored by the respondents, it has not even been discussed by the
respondents. Even for this reason, the registration of the impugned F.I.R. is untenable. As
discussed in para. 10, section 5 of the Prevention of Corruption Act, 1947 is not attracted
in the facts and circumstances of this case. The respondents, according to the findings of
the inquiry report, have violated, as discussed above in detail, the provisions of Rules,
2005. The findings of inquiry clearly omitted to refer acceptance of any valuable thing or
illegal gratification, etc. by the TMA Officials. Accused Fazeelat Bibi, Sarfraz Rafiq, Ijaz
Rafiq and Usman Javed Saroopa were never recommended to be nominated in the F.I.R.
but surprisingly they have also been nominated in the impugned F.I.R. Muhammad
Rizwan TMO, Javed Iqbal Bajwa TO(R) and Muhammad Jehangir Enforcement
Inspector were recommended but their names do no figure in the F.I.R. In the above
circumstances, it is held that element of mala fide cannot be ruled out. Moreover, the
respondents were not legally competent to register the impugned F.I.R. At the most, they
could recommend action under Rules, 2005 to the Competent Authority. The learned
counsel for respondent No.4 himself stated that accused and petitioner violated provisions
of Rules, 2005, as already noted in para. 7.

14. According to the Honourable Supreme Court of Pakistan High Court in exercise of its
constitutional jurisdiction, is competent to pass appropriate orders where investigation is
mala fide or without jurisdiction, reference may be made to Muhammad Latif A.S.-I. v.
Sharifan Bibi 1998 SCMR 666. Article 4 read with Article 9 of the Constitution provides
full protection of law and treatment in accordance with law. According to Article 4, no
action detrimental to the life, liberty, body, reputation or property of any person shall be
taken except in accordance with law. As discussed above, the petitioner and other accused
have not been dealt with in this case in accordance with law/rules. According to the
Honourable Supreme Court of Pakistan, High Court must step into to investigate such
facts under the constitutional jurisdiction conferred on it under Article 199 of the
Constitution and pass such order as may be found just, legal and equitable taking into
consideration of the facts and circumstances of each case. Government of Sindh v.
Raeesa Farooq and others 1994 SCMR 1283. The cases referred to by the learned counsel
for respondent No.4 i.e. 2002 YLR 1104 and 2005 YLR 1329 relate to Anti-Corruption
Establishment Rules, 1985 only, and do not cover the facts and circumstances of the
present case, therefore, not applicable. The case reported as 2008 SCMR 76 itself says
that in exceptional circumstances the F.I.R. can be quashed. Exceptional circumstances
include mala fide registration of F.I.R. as well as when F.I.R. is registered incompetently
or without jurisdiction and in violation of law and rules.

Page No. 6 of 7
15. For reasons noted above, this writ petition is allowed. Resultantly, F.I.R. No.66 of
2008, dated 23-4-2008, registered under sections 420, 468, 470 and section 5(2) of
Prevention of Corruption Act, 1947, at Police Station Anti Corruption, Lahore is declared
without lawful authority and quashed. It is also declared and held that violation of any
rule/rules of the Punjab Private Site Development Schemes (Regulations) Rules, 2005,
can be challenged and a violator may be penalized under rules 14 and 15 of the said
Rules.

M.H./M-221/L Petition allowed.

Page No. 7 of 7
2008 C L C 759

[Lahore]

Before Syed Asghar Haider, J

LAHORE BEVERAGE COMPANY (PVT.) LIMITED through Chief Executive

----Petitioner

Versus

MUHAMMAD JAVED SHAFI and 2 others----Respondents

Civil Revision No.848 of 2007, decided on 28th January, 2008.

(a) Civil Procedure Code (V of 1908)---

----O. VII, R.11(d)---Financial Institutions (Recovery of Finances) Ordinance (XLVI of

2001), Ss.7(4) & 15(11)---Specific Relief Act (I of 1877), Ss.12 & 54---Suit for specific
performance of sale agreement and permanent injunction regarding property mortgaged
with Bank---Application for rejection of plaint for want of jurisdiction---Validity---
Subject-matter of the suit was a property mortgaged with bank---Jurisdiction of ordinary
court to try such matter stood ousted by provision of S.7(4) of Financial Institutions
(Recovery of Finances) Ordinance, 2001 being a special law---Special law, whenever
enacted, would take precedence over general law---Decree obtained by Bank against
applicant was under execution---Disputes relating to mortgaged property would be tried
exclusively by Banking Cowl and jurisdiction of civil court in such context was barred---
Plaint was rejected in circumstances.

(b) Interpretation of statutes---

----Special law, whenever enacted, would take precedence over general law.

Ms. Sidra Fatima Sheikh for Petitioner.

Nemo for Respondents.

ORDER

SYED ASGHAR HAIDER, J.---The respondents Nos.1 and 2 filed a suit for specific
performance and perpetual injunction against the petitioner. The petitioner filed an
application under Order VII, rule 11, C.P.C. praying for rejection of the plaint, pleading
that the trial Court has no jurisdiction to adjudicate and try the present suit, in view of the
enactment of Financial Institutions (Recovery of Finances) Ordinance, 2001, as
jurisdiction in this respect is bestowed exclusively upon the Banking Courts, the
jurisdiction of Civil Courts is barred. The respondents contested the application. The trial
Court after hearing the parties dismissed the application. Hence the present petition.

2. The learned counsel for the petitioner contended that the subject matter of the dispute
viz. Property No.126/1, situated at Kot Lakhpat, Industrial Scheme Lahore is a mortgaged
property with the NDFC (now vesting in the National Bank of Pakistan). The learned
counsel in this context referred to a letter issued by the National Bank of Pakistan dated
29-4-2004 affirming this position and also to clause (h) of the compromise entered inter
se the plaintiff and NDFC (it has been placed on record). To augment her arguments she
referred to section 7(4) of Financial Institutions (Recovery of Finances) Ordinance, 2001
whereby a complete embargo has been imposed on all courts, except the Banking Courts
to adjudicate on disputes touching jurisdiction bestowed upon the Banking Courts. The
provision has further been clarified with incorporation of section 15(11) of Financial
Institutions (Recovery of Finances) Ordinance, 2001, and extended to mortgaged
properties with the banks. The learned counsel thus argued that the impugned order is
illegal and contrary to the provisions of the said enactment.

Page No. 1 of 2
3. Despite service and appearance by Mr. Muhammad Farooq Mirza, Advocate on 8-10-
2007 and 2-11-2007 none has turned up today on behalf of contesting respondents Nos.1
and 2, therefore, they are proceeded against ex parte.

4. I have heard the learned counsel for the petitioner and perused the impugned order.

5. The precise objection raised by the petitioner in the proceedings before the trial Court
was, whether it had jurisdiction to adjudicate or try the present suit or was its jurisdiction
specifically barred under section 7(4) of Financial Institutions (Recovery of Finances)
Ordinance, 2001. The language couched in this section clearly ousts the jurisdiction of
the ordinary courts. The Financial Institutions (Recovery of Finances) Ordinance, 2001 is
a special law, and it is a settled proposition of law, that whenever a special law is enacted,
it takes precedence over general law. In the present matter a specific objection was raised
that the subject matter of the suit is a property mortgaged with the National Bank of
Pakistan (NDFC). The learned counsel for the petitioner adverted to a letter issued by the
National Bank of Pakistan dated 29-4-2004 which indicated that plot No.126/1 situated at
Kot Lakhpat Industrial Scheme Lahore, owned by Lahore Beverages Company (Pvt.) Ltd
is mortgaged with National Bank of Pakistan. Reference was also made to an execution
of a decree in this context, (Execution Application No.728 of 2002) filed by the National
Bank of Pakistan (former NDFC) it also reflects that the respondent Lahore Beverage
Company (Pvt.) Ltd is arrayed as judgment-debtor. Clause (h) of this petition reads:

"(h) That all the security documents would remain intact and waiver/write-off involved in
this settlement package if any will be considered by the bank only after the receipt of full
and final payment of settlement amount as per the above terms and conditions."

Section 15(11) of Financial Institutions (Recovery of Finances) Ordinance, 2001 reads:

"(11) All disputes relating to the sale of mortgaged property under this section including
disputes amongst mortgagees in respect of distribution of the sale proceeds shall be
decided by the Banking Court."

Therefore, it is absolutely clear and unambiguous that all disputes relating to a mortgaged
property even inter se mortgagees, in respect of distribution of sale proceeds are to be
tried by the Banking Court.

6. The trial Court itself adverted to the litigation inter se the National Bank of Pakistan
and respondents Nos.1 and 2 and the property which is subject matter of the dispute,
observing it stood excluded from the list of the mortgaged properties. How and upon
what basis the learned trial Court so concluded is not decipherable from the record.

Exh.C.1 referred to in the impugned order, does not so reflect, in fact it states that
security documents would remain intact and waiver/write off involved in the settlement
package will be considered by the Bank only after full and final settlement of the amount
as per terms incorporated, but there is nothing on record to suggest that liability was
extinguished and documents released. Therefore the reasoning adopted by the trial Court
is incorrect and fallacious.

7. The jurisdiction in mortgage matters is exclusive to the Banking Court and the
jurisdiction of the Civil Courts is barred in this context. 'Therefore, the impugned order is
without jurisdiction and hence illegal.

8. Resultantly this petition is allowed, the impugned order is set aside and the plaint filed
by respondents Nos.1 and 2 rejected as prayed for.

S.A.K./L-1/L Plaint rejected.

Page No. 2 of 2
2008 C L C 697

[Karachi]

Before Mrs. Yasmin Abbasey and Mehmood Alam Rizvi, JJ

IMRAN AHMED KHAN----Petitioner

Versus

PAKISTAN through Secretary, Ministry of Defence and another----Respondents

C.P. No.D-1766 of 2006, decided on 31st December, 2007.

(a) Interpretation of statutes---

----Statutory provision being open to more than one interpretation---Effect---Court would

choose that interpretation, which represented true intention of legislator as essence of law
would lie in its spirit and not in its letters----Principles.

When a statutory provision is open to more than one interpretation, then the court has to
choose that interpretation which represents the true intention of legislator. The essence of
the law lies in the spirit, not in its letters for the letter is significant only as being the
external manifestation of the intention that underlies it.

United Bank Limited through President v. Shamim Ahmed Khan and 41 others PLD 1999
SC 990 rel.

(b) Pakistan International Airlines Corporation (Service and Discipline) Regulations,

1985---

----Regln. 4---Civil Servants Act (LXXI of 1973), S.2(a)---Pakistan International Airlines

Corporation (Suspension of Trade Unions and Existing Agreements) Order (6 of 2001),
Arts.3 & 4---Employee of Pakistan International Airlines Corporation---Termination of
service of employee on abolition of post due to reorganization of Corporation---Non-
issuance of show-cause notice to such employee---Validity---Corporation did not have
statutory rules and regulations---Such employee even though not being a civil servant
would have right of having a show-cause notice and hearing---Relationship between
Corporation and its employee would be that of master and servant--Corporation was
empowered to terminate service of its employee on abolition of post due to its re-
organization---Principles.

Pakistan International Airlines Corporation v. Nasir Jamal Malik and others 2001 SCMR
934; Raziuddin v. Chairman, Pakistan International Airlines Corporation and 2 others
PLD 1992 SC 531; The Secretary, East Pakistan Industrial Development Corporation,
Dacca v. Md. Serajul Haque 1970 SCMR 398 and Mrs. Anisa Rehman v. PIAC and
another 1994 SCMR 2232 rel.

(c) Maxim---

----"Audi alteram partem"---Applicability---Scope---Maxim would be applicable to all

judicial and non-judicial proceedings and would be read into every statute, even if right
of hearing was not expressly provided therein.

(d) Natural justice, principles of---

----Conflict between a basic natural right born out of natural justice and a provision of
law either general or special---Effect---Such natural right should prevail.

(e) Res judicata, principles of---

Page No. 1 of 10
----Every issue should be once fairly tried and concluded for ever between parties---
Decision would be res judicata regardless of fact whether same was correct or incorrect---
Remedy of appeal would be available to a party considering such decision to be incorrect.

(f) Estoppel---

----Waiving of right to challenge an order would amount to estoppel by conduct.

(g) Pakistan International Airlines Corporation (Service and Discipline) Regulations,

1985---

----Regln. 4---Service Tribunals Act (LXX of 1973), Ss.2-A & 4---Constitution of

Pakistan (1973), Art.212(3)---Termination of service---Employee of Pakistan
International Airlines Corporation---Appeal before service Tribunal---Reinstatement in
service by Service Tribunal after accepting employee's appeal----Operation of impugned
judgment suspended by Supreme Court in petition for leave to appeal filed by
Corporation---Abatement of all pending service appeals on basis of judgment of Supreme
Court subsequently passed in Muhammad Mubeen-ul-Salam's case reported as PLD 2006
SC 602---Impugned judgment of Service Tribunal not further challenged by
Corporation---effect---Impugned judgment of Service Tribunal reinstating employee in
service would hold field.

Pakistan Red Crescent Society and another v. Syed Nazir Gillani 2005 PLC (C.S.) 1264;
A. George v. Pakistan International Airlines Corporation PLD 1971 Lah. 748; Pakistan
International Airlines Corporation v. Nair Jamal Malik and others 2001 SCMR 934;
Shahid Khalil v. Pakistan International Airlines Corporation, Karachi 1971 SCMR 568;
Raziuddin v. Chairman, Pakistan International Airlines Corporation and 2 others PLD
1992 SC 531; The Secretary, East Pakistan Industrial Development Corporation, Dacca v.
MD. Serajul Eaque 1970 SCMR 398; National Shipping Corporation v. Sindh Labour
Appellate Tribunal and 2 others 1975 PLC 1; Annosha Shaigan v. Lahore University of
Management Sciences PLD 2007 Lah. 568; Maqsood Ahmed Toor and 4 others v.
Federation of Pakistan and others 2000 SCMR 928; Lahore Development Authority and
others v. Abdul Shafiq and others 1992 PLC 1214; Karachi Development Authority and
another v. Wali Ahmad Khan and others 1991 SCMR 2434; Iftikhar Mubeen Arshee v.
Deputy Commissioner/Chairman, Board of Governors, Kasur Public School and others
2004 PLC (C.S.) 1232; Salahuddin v. Frontier Sugar Mills PLD 1975 SC 244; Dr. Mrs.
Noushaba Syed v. Chairman, Pakistan International Airlines Corporation, Karachi and
others 2004 PLC (C.S.) 480 and Government of N.-W.F.P. through Secretary, Forest
Department, Peshawar and others v. Muhammad Tufail Khan PLD 2004 SC 313 ref.

Dr. Muhammad Farough Naseem for Petitioner.

Shahid Anwar Bajwa for Respondent No.2.

Dates of hearing: 26th and 27th November, 2007.

JUDGMENT

MRS. YASMIN ABBASEY, J.----Facts leading to this case are that the petitioner was
inducted in PIAC as Director on 24-11-1994; confirmed on the post on 11-6-1995 w.e.f.
24-11-1994 up to 10-10-1997 he worked comfortably but all of a sudden on 10-10-1997 a
show-cause notice was issued to him alleging his appointment, so also the qualifications
required for the post, as result of political pressure. That he was already beyond the
maximum age for induction of regular employee which is 40 years. Consequently, his
services were terminated vide letter dated 3-12-2001 on the ground that his appointment
was on the basis of directives issued by Prime Minister Secretariat and thus was in
contravention of the principles laid down by the Honourable Supreme Court of Pakistan
in Abdul Jabbar Memon's case, which provides that every vacancy shall be advertised and
be filled on merit after consideration of eligibility by the properly constituted board. This
termination order was challenged by the petitioner before the Federal Service Tribunal
and vide judgment dated 23-6-2003 he was reinstated in service.

Page No. 2 of 10
It is pertinent to note that during the pendency of case before the Federal Service Tribunal
a letter was issued on 30-11-1999 by Arif Ali Khan Abbasi, the Managing Director
expressing his sorrow to the issuance of the show-cause notice and in paras-4 and 5 of his
letter it was stated that " in the light in the above it is in the fitness of the things that
notice of removal from .service issued to you be withdrawn which you deserve. It is
hoped that you will contribute to the prosperity of this Corporation." Although the
authenticity of letter dated 30-11-1999 was challenged by the respondent No.2's counsel
in proceedings before the Federal Service Tribunal that as the said letter is not available
on PIAC's record and by second letter issued on 26-6-2000 it was clarified by Assistant
Manager, M.D. Secretary A.R. Bhutti that no such letter dated 30-11-1999 was ever
issued or processed through the M.D. Secretary, hence it will be deemed to have no
existence but these objections were turned down by the Federal Service Tribunal that:--

"It was on the basis of this Committee's report that Appellant's show-cause notice dated
10-10-1997 was withdrawn by the Managing Director vide his letter dated 30-11-1999
also reproduced in earlier part of this judgment. Respondent's challenged the authenticity
of this letter and stated that the same M.D. few weeks later after the said letter held
appointment of the appellant as irregular after another review. We have seen the signature
of Mr. Arif Ali Khan Abbasi, the then M.D. of PIAC on different papers produced by both
parties in the appeal. We find that the signature of Mr. Abbasi on the letter whereby
Appellant's show-cause notice was withdrawn is genuine."

However by joining advice of PIAC dated 25-8-2003 in compliance of the judgment of

Federal Service Tribunal, petitioner was taken on duty and was posted as Director Special
Project vide Personnel Order No.031/September/2003 dated 18-9-2003. It appears and as
has also been observed by Federal Service Tribunal that respondents were bent upon
terminating the petitioner's services, therefore, again a termination letter was issued on
23-2-2004 with the plea that due to re-organization in the Corporation the post of
Director Special Project stands abolished, therefore, petitioner being redundant in
respondent No.2 Corporation was terminated with immediate effect.

It is stated by learned counsel for the petitioner that before terminating his services on 23-
2-2004 neither the petitioner was ever intimated about the decision of the Corporation nor
any show-cause notice was issued to him. Being aggrieved with this termination letter,
petitioner again approached to the Federal Service Tribunal in Appeal No.91(K)CE of
2004. That appeal was admitted on 26-2-2004 and order dated 23-2-2004 was suspended
till the next date of hearing. Respondent No.2 organization was also restrained from
passing any other adverse order against the petitioner. Respondent No.2 corporation
assailed this order of Federal Service Tribunal dated 26-2-2004 before Honourable
Supreme Court of Pakistan, which was dismissed with the observation that "as the
Service Tribunal has not finally disposed of the matter, therefore, no case is made out for
grant of stay order. However, appellant will be at liberty to approach Service Tribunal for
early decision of the matter and if such application is filed before the Service Tribunal, it
shall be decided within three weeks after filing of the same".

Federal Service Tribunal finally disposed of the petition filed by the petitioner bearing
No.91 of 2004 on 22-4-2004 again declaring the respondent No.2's order of termination
dated 23-2-2004 as void ab initio, capricious and illegal being passed in total violation of
principle of natural justice, rules and settled law enunciated by the Honourable Supreme
Court in various rulings cited earlier in this order. Accordingly, respondents were directed
to reinstate the petitioner in service w.e.f. the date of impugned order with full
consequential financial and other service benefits.

It is stated that due to continuous defiance of order of Federal Service Tribunal,

maintained by the Honourable Supreme Court of Pakistan, petitioner is forced to file, this
petition. In reply to it, respondent had challenged the very maintainability of this petition
stating that as Pakistan International Airlines Corporation Employees (Service and
Discipline) Regulations, 1985 do not have statutory rules and regulations therefore,
relationship in between petitioner and respondent is that of master and servant and in
such event proper remedy for the petitioner due to alleged wrongful termination is to file
a suit for damages and not reinstatement. Case of Pakistan Red Crescent Society and
another v. Syed Nazir Gillani 2005 PLC (C.S.) 1264 has been cited, Wherein it is
observed that:--
Page No. 3 of 10
"It is well-settled by now that "where the Government while setting up a Corporation
does not reserve to itself the power to regulate the terms of service of the Corporation's
employees under the relevant statute and does not prescribe any condition, but leaves it to
the discretion of the Corporation by empowering it to frame rules or regulations in
respect thereof without the Government's intervention, then the Corporation will be the
sole arbiter in the matter of prescribing the terms and conditions of its employees and will
be competent to deal with them in accordance with the terms and conditions prescribed
by it. In such a case neither a suit nor a writ petition for the relief of reinstatement will be
competent and the remedy of an employee, for wrongful dismissal from or of termination
of service will be a suit for damages as the principle of master and servant will be
applicable."

It is contended that in absence of any statutory rules of the corporation the petition filed
under Article 199, invoking jurisdiction of High Court to adjudicate the terms of service
and termination of petitioner does not come within its orbit. Employment of a corporation
not governed by any statutory rules does not come within the scope of service of Pakistan
as defined in section 2 (1) (b) of Civil Servants Act, 1973 which reads as under:--

"2(1)(b) "Civil servant" means a person who is a member of an All Pakistan Service or of
a civil service of the Federation, or who holds a civil post in connection with the affairs
of the Federation, including any such post connected with defence, but does not include:-

(i) a person who is on deputation to the Federation from any Province or other authority;

(ii) a person who is employed on contract, or on work-charge basis, or who is paid from
contingencies; or

(iii) a person who is a "worker" or "workman" as defined in the Factories Act, 1934
(XXVI of 1934), or the Workmen's Compensation Act, 1923 (VIII of 1923).

As per term "civil servant" defined in Act, 1973 means a person holding a civil post in
connection with the affairs of the Federation as PIAC does not have any statutory rules,
therefore, its employees do not fall with the definition of civil servant to approach this
Court under Article 199 of the Constitution.

Enlightening the scope and development of writ jurisdiction of High Court, it is debated
that with the insertion of Article 223-A of Government of India (Amendment) Act 1954,
High Court was empowered to issue writs in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari or any of them. This amendment was
subsequently made a part of Constitution in 1978. These powers conferred on High Court
to issue writ was made a part of Constitution of Pakistan in 1962 by virtue of Article 170
of Constitution of Pakistan.

Discussing the modus operandi of issuing writ in fields provided for, it is argued that the
term "service of Pakistan" in Article 260 of Constitution of Pakistan means any service,
post or office in connection with the affairs of Federation. So is explained in Article 63
(k) of Constitution; that a person will be deemed to be a civil servant if he is in service of
Pakistan; or of any statutory body or any body which is owned or controlled by
Government. And as petitioner being employee of P.I.A. was not a civil servant holding
the office in connection with the affairs of Federation or of Province, so also P.I.A. is not
a body which, by virtue of Article 199 (5) of Constitution; can be called under the control
of Federal of Provincial Government of Pakistan, therefore, this petition is not
maintainable. Reliance was placed on the cases of (1) A. George v. Pakistan International
Airlines Corporation PLD 1971 Lah. 748, (2) Pakistan International Airlines Corporation
v. Nasir Jamal Malik and others 2001 SCMR 934, (3) Shahid Khalil v. Pakistan
International Airlines Corporation, Karachi 1971 SCMR 568, (4) Raziuddin v. Chairman,
Pakistan International Airlines Corporation and 2 others PLD 1992 SC 531 and (5) The
Secretary, East Pakistan Industrial, Development Corporation, Dacca v. Md. Serajul
Haque 1970 SCMR 398.

Moving to section 5 of PIAC Act, 1956, it is argued that it also designate the
administration of corporation and its affairs with the Board of Directors having no
Page No. 4 of 10
statutory control of Federation, therefore, writ as asked for by the petitioner is not
warranted under law. Mere authorizing power to Federal Government to issue direction to
the corporation, does not make the authority to be an establishment being carried on by or
under Federal or Provincial Government.

Same like issue came before a bench of three members of this Court and it was reported
in National Shipping Corporation v. Sindh Labour Appellate Tribunal and 2 others 1975
PLC 1 that:--

"It is also significant to note that under subsection (3) of section 8 the Board is only to be
guided by instructions from the Central Government and that too only on question of
policy involving national interest. From these provisions it is obvious that the
establishment of the petitioner Corporation is not being carried on under the authority of
the Central Government but on its own authority notwithstanding the restrictions on its
borrowing powers on the power vested in the Central Government under section 30 of the
Ordinance for winding up. The least that the learned counsel had to show to us was that
the petitioner corporation would have ceased to carry on its business in the absence of
exercise of any authority by the Central .Government. No doubt the Central Government
has reserved fol. itself certain powers in the functioning of the Corporation but
nonetheless the petitioner Corporation will continue to function under its own authority
without the exercise of any authority by the Central Government. I am therefore, unable
to agree with the learned Appellate Tribunal that the petitioner corporation is an
establishment carried on under the authority of the Central Government."

Case of Anoosha Shaigan v. Lahore University of Management Sciences PLD 2007 Lah.
568 has also been referred, wherein it has been observed that:

"A "person" performing its functions in connection with the affairs of the Federation etc;
the Federation etc. should have a complete domination to do and undo whatever it
decides in running the affairs of such a body and should have the exclusive, complete and
final authority to take the vital policy decisions. Such control must be absolute,
unfettered, unbridled and exclusive, besides, the State must also have the financial
control of the Organization; the power of hiring and firing the employees thereof
appointing and removing the management body meant for running the routine affairs of
the Organization."

In accordance with Honourable Supreme Court of Pakistan in Maqsood Ahmed Toor and
4 others v. Federation of Pakistan and others 2000 SCMR 928.

Coming to the next aspect connected to it that P.I.A. has no statutory rules and regulations
of its own, therefore, too in absence of any rules and regulations relation in between
parties is that of master and servant and on that account too this Court has no jurisdiction.

With reference to the case of Lahore Development Authority and others v. Abdul Shafiq
and others 1992 PLC 1214, it would be relevant to quote observations made in Karachi
Development Authority and another v. Wall Ahmad Khan and others 1991 SCMR 2434
that:--

"The rule-making power for the purposes of giving effect to the provisions of the K.D.A.
Order has been given to the Government under Article 14 thereof, whereas under Article
15 of the said Order, power has been vested in the K.D.A. to frame regulations, inter alia,
in the matter of terms and conditions of service. This power is unbridled and unfettered
by the statutory intervention of any outside authority. It is common ground that no rules
have been framed by the Government under Article 14. Therefore in accordance with the
dictum laid down in the case of Anwar Hussain PLD 1984 SC 194, as there is no clog on
the freedom of the parties in the matter of terms of contract of service, ordinarily the
rights of the employee will be governed by the law of master and servant."

In the case of Iftikhar Mubeen Arshee v. Deputy Commissioner/ Chairman, Board of

Governors, Kasur Public School, and others 2004 PLC (C.S.) 1232 it has been observed
that "employee of a school not governed by any statutory rules of service, cannot enjoy
the protection available to Government Servant."

Page No. 5 of 10
In reply to these legal questions, learned counsel for the petitioner has argued that by
virtue of Chief Executive Order 6 of 2001 promulgated on 5-7-2001 services under
Pakistan International Airlines Corporation were declared to be the services of Pakistan
and every person holding a post under the corporation, not being a person who is on
deputation to the Corporation, shall be deemed to be civil servant for the purpose of
Service Tribunals Act, 1973. Therefore, petitioner in service of PIAC on 2-12-2001 will
be deemed to be a civil servant.

For proper adjudication of case in its true prescription it will be appropriate to reproduce
section 2(a) of the Service Tribunal Act, 1973 as under:--

"2(a) "Civil Servants" means a person who is, or has been, a civil servant within the
meaning of the Civil Servants Act, 1973 (LXXI of 1973)." and

"2A. Service under certain corporation etc. to be service of Pakistan.--- Service under any
authority, corporation, body or organization established by or under a Federal law or
which is owned or controlled by the Federal Government or in which the Federal
Government has a controlling share or interest is hereby declared to be service of
Pakistan and every person holding a post under such authority, corporation, body or
organization shall be deemed to be a civil servant for the purposes of this Act."

Bare reading of the two provisions reflects the intention of legislator. As the intention of
the legislator is manifested in the Statute itself. With the insertion of section 2-A in
Service Tribunals Act, 1973 defining "civil servant" legislator by a subsequent
amendment of Act, 1997 has added section 2A enlarging the area of "Civil Servant" to the
employee of any authority, corporation, body or organization established by or under a
Federal Law, or which is owned or controlled by Federal Government.

Section 3 of PIAC, which bears the heading of "Establishment and Incorporation"

enunciate the establishment of PIAC by Federal Government but still above referred
sections cannot be taken in these terms. As when a statutory provision is open to more
than one interpretation then the Court has to choose that interpretation which represents
the true intention of legislator. According to Salmond:---

"The essence of the law lies in its spirit, not in its letters for the letter is significant only
as being the external manifestation of the intention that underlies it."

And that intention has been explained by Honourable Supreme Court of Pakistan in the
case of United Bank Limited through President v. Shamim Ahmed Khan and 41 others
PLD 1999 SC 990 that:--

"The intention of the Legislature is quite manifest. The Legislature by introducing section
2-A, in the Act, only wanted to provide a right of appeal before the Service Tribunals to
an aggrieved employee of a corporation, authority, body or organization established under
a Federal Law or which is owned or controlled by the Federal Government or in which
the Federal Government has a controlling share or interest. It is significant that while
section 2-A, has been introduced in the Act which deals with the rights of appeal of civil
servants, no corresponding amendment has been made in the Civil Servants Act, which
determines the terms and conditions of service of civil servants. If the Legislature
intended to confer on the employees of Corporation controlled by the Federal
Government, the status of a civil servant, they could have provided so by introducing
appropriate amendments in the relevant service laws governing the Federal Government
employees."

"We are, therefore, of the view that the declaration in section 2-A, of the Act to the effect
that the service under an authority, corporation, body or organization established by or
under a Federal Law or which is owned and controlled by the Federal Government or in
which Federal Government has a controlling share or interest, shall be deemed to be in
Service of Pakistan and the persons holding any post in such authority, corporation or
body were deemed to be civil servants for the purpose of the Act, was meant only for the
limited purpose of conferring a right on the aggrieved employees of such organization/
corporation to avail the remedy of appeal before the Service Tribunal."

Page No. 6 of 10
At the same time defining terms performing functions in connection with the affairs of
the Federation or a Province, has been discussed by Honourable Supreme Court of
Pakistan in the case of Salahuddin v. Frontier Sugar Mills PLD 1975 SC 244 that:--

"Now, what is meant by the phrase "performing functions in connection with the affairs
of the Federation or a Province." It is clear that the reference is to governmental or State
functions, involving, in one form or another, an element of exercise of public power. The
functions may be the traditional, police functions of the State, involving the maintenance
of law and order and other regulatory activities; or they may comprise functions
pertaining to economic development, social welfare, education, public utility services and
other State enterprises of an industrial or commercial nature. Ordinarily, these functions
would be performed by persons or agencies directly appointed, controlled and financed
by the State, i.e. by the Federal Government or a Provincial Government. However, in
recent years, there has been manifest a growing tendency on the part of Governments to
create statutory corporations for undertaking many such functions, particularly in the
industrial and commercial spheres, in the belief that free from the inhibiting effect of red-
tapism, these semi-autonomous bodies may prove more effective, flexible and also
profitable. Inevitably, Government retains effective control over their functioning by
appointing the heads and other senior officer of these corporations, by regulating their
composition and procedures by appropriate statutes, and finding funds for financing their
activities."

At the same time irrespective of fact that PIAC does not have statutory rules and
regulations as observed in number of authorities referred by learned counsel for
respondent, it cannot be ignored that in spite of holding that an employee of PIAC is not a
civil servant in term of Muhammad Mubeen-us-Salam's case reported in PLD 2006 SC
602, his right of having a show-cause notice and hearing has been protected not only by a
well known maxim of "Audi Alteram Partem" but as well by apex Courts in the cases of
The Secretary, East Pakistan Industrial Development Corporation, Dacca v. Md. Serajul
Haque (supra), Raziuddin v. Chairman, Pakistan International Airlines Corporation And 2
others (supra), Pakistan International Airlines Corporation v. Nasir Jamal Malik and
others (supra) and Mrs. Anisa Rehman v. PIAC and another 1994 SCMR 2232.

Whereas according to learned counsel for respondents, retrenchment is not a punishment

and thus does not need and show-cause notice. In absence of statutory rules, as
relationship in between petitioner and of respondent No.1 is that of master and servant
therefore, on abolition of post due to reorganization of corporation, respondent No.2 is
empowered to terminate his service.

Article 3 of the very Chief Executive Order 6/2001 is very material in this reference,
which speaks that if Corporation any time retires or removes service of any person, he is
entitled of having an opportunity of being heard.

Part-II of Article 4 of this order further makes it clear that "any person aggrieved by an
order made under Article 3 of this Order, may within 30 days of the order, prefer an
appeal to the Service Tribunal established under the said Act and the provisions of this
Act shall mutatis mutandis apply. Record is silent to the fact that this Chief Executive
Order, 6 of 2001, promulgated on 5-7-2001 was ever questioned and thus in terms of this
Chief Executive Order issuance of show-cause notice is a mandatory requirement and it
has been rightly observed in an unreported case of Honourable Supreme Court of
Pakistan in Civil Petition No.1062 of 1998 that:--

"it is a well settled proposition of law that maxim of audi alteram partem is applicable to
all judicial and non-judicial proceedings and has to be read into every statute, even if the
right of hearing is not expressly provided therein."

Conversely learned counsel for respondent has referred case of The Secretary, East
Pakistan Industrial, Development Corporation, Dacca v. Md. Serajul Haque 1970 SCMR
398 observing that:--

"Moreover the terms and conditions of service of the respondents, it is admitted, were not
governed by any statutory rules. The learned Judges were, therefore, right in holding that
the guarantee under Article 177 of the Constitution of 1962 was not available to the
Page No. 7 of 10
respondents. Mr. S. M. Abbas, learned Advocate-on-Record, representing the respondents
does not also contend that the provisions of the said Article were attracted in their cases.
The only question, therefore, that calls for determination in these appeals is whether the
respondents were entitled to an opportunity to show cause against the proposed
termination of their services on the principle of natural justice. The order, dated the 2nd
April 1964, terminating the services of the respondent Md. Serajul Haque was as
follows:--

"The services of Md. Serajul Haque, Attendant, Accounts Department, E.P.I.D.C., Dacca
is no longer required by the, Corporation. His services therefore, stand terminated with
immediate effect. He is directed to collect his dues together with one month's pay in lieu
of notice from the Accounts Department after depositing his liveries and other articles, if
any, to the store and obtaining clearance certificates from the store-keeper.

The order terminating the service of the other respondent. Md. Sekander Mia was exactly
on the same terms. These orders do not all contain any charge or stigma against the
respondents. By these orders, their services were simply terminated with an offer of one
month's pay in lieu of notice on the sole ground that their services were no longer
required by the corporation. These orders cannot, therefore, be regarded as orders
terminating the services of the respondents by way of penalty but the facts of that case are
absolutely different of present one. In cited case, services of employee were transferred
from Federation to Province and it was under those circumstances service of show-cause
notice is case of deputy not being civil servant within the meaning of section 2(1)(b) of
Civil Servants Act, 1973 was held not to be necessary. Otherwise when there is conflict
between a basic natural right born out of natural Justice and a provision of law, general or
special, it is settled that the former should prevail.

Coming to the next aspect, to the arguments advanced by learned counsel for petitioner
that even if it is taken that respondent No.2 was downsizing the number of staff then also
the principle of first come and last go will apply and petitioner at No.1 of list of
permanent Directors issued on 23-2-2004 appointed on 22-11-1994 will be the last person
to be departed, it is replied by learned counsel for respondent that this principle will not
apply in the present case as all the Directors shown in the list relates to different fields,
but the documents quoted by learned counsel for petitioner of 24-3-2003, 9-4-2003, 27-2-
2004, 9-5-2005-and 16-11-2005 at pages 227, 229, 317, 319, 321 and 323 of the file are
sufficient proof of fact that abolition of post was not the barrier in adjusting the petitioner
on any other post in the corporation but obstacle behind that was the malicious act of
respondent No.2 reported by petitioner from time to time at different forums.

Advancing his arguments learned counsel for the respondents. has again challenged that
the very appointment of petitioner is against to the rules and regulations of the respondent
No.2 corporation asserting that prior to his appointment neither the post was advertised
nor invitations were called because of directives issued by Prime Minister Secretariat on
17-11-1991 and thus the very appointment was illegal. Whereas by virtue of Article 10 of
PIAC Act, 1956 the respondent No.2 Corporation may appoint any officer, adviser or
employee on such terms and conditions as it my see fit, meaning thereby that if candidate
is not found fit and does not qualify the required conditions he is not to be posted on that
particular post.

Though as per petitioner's statement he was inducted in respondent No.2 Corporation as

Director of Messrs Duty Free Shop after proper advertisement, screening and interview
for the post, and all these issues were thoroughly discussed by Federal Service Tribunal
in its order dated 23-6-2003 and that order of Federal Service Tribunal was not
challenged by the respondents and, therefore, it had attained finality, hence the same
cannot be questioned again in the present petition and is barred by principle of res
judicata.

Learned counsel for the respondents had tried to rely his arguments on the case reported
as Dr Mrs. Noushaba Syed v. Chairman, Pakistan International Airlines Corporation,
Karachi and others 2004 PLC (C.S.) 480, according to him, the facts of that case were
identical to the present one as on the recommendations of Prime Minister Secretariat
appellant of 2004 PLC (C.S.) 480 was appointed and in spite of her contention that her
appointment was legal as she was interviewed by the selection committee, it was
Page No. 8 of 10
observed that "it does not ipso facto make the appointment as valid. It is also now
established that the organization recruiting people do not interview the prospective
candidates till they advertise or they are forced under the order of very powerful authority
to consider any candidate. The fact that the appellant was overage is a factor which lends
credence to the respondents' contention that she was appointed in violation of the rules."
In the case of Government of N.-W.F.P. through Secretary Forest Department, Peshawar
and others v. Muhammad Tufail Khan PLD 2004 SC 313 order of tribunal reinstating the
respondent of that case was set aside with the reasons that:---

"It is also reflected from the documents and the same is not denied that the selection of
the respondent was made simply on political dictation. Neither any advertisement was
made to fill these vacancies nor any interview was held. The codal formalities for the
appointment of these posts were flagrantly violated. Such like entries in the civil service
cannot be countenanced as it generates frustration and despondency among all persons
who were having excellent merit but every time they are bypassed through such like back
door entries on political interference. Everybody who matters in the functioning of the
society has always propagated for the adoption of transparency and merit in
appointments, which are cardinal principles of good governance. The Constitution of
Islamic Republic of Pakistan has also mandated the same as is reflected from the Article
18 which is in the following terms:--

"18. Subject to such qualification, if any, as may be prescribed by law, every citizen shall
have the right to enter upon any lawful profession, or occupation, and to conduct any
lawful trade or business."

However when it come to actual practice these principles are blatantly ignored. The
Courts are duty bound to uphold the constitutional mandate and to keep up the salutary
principle of rule of law. In order to uphold these principles it has been stated time and
again by the superior Courts that all the appointments are to be made after due publicity
in a transparent manner after inviting application through press from all those who are
eligible, deserving and desirous."

With utmost respect to the observations made by Honourable Supreme Court of Pakistan
but still the fact remains that neither the order dated 23-6-2003 was challenged by the
respondent No.2 corporation, wherein all these points with reference to the alleged
irregular appointment of petitioner were considered and it was observed that "once the
committee on irregular appointments had 'submitted detailed report on appellant's
appointment and on the strength of the said committee's report show-cause notice was
withdrawn the matter in all fairness should have been treated as a past and closed
transaction." The issue of the appellant's appointment cannot be reopened and is barred
by doctrine of estoppel.

It is a universally accepted principle that every issue should be once fairly tried and
should be concluded forever between those parties. A decision is res judicata regardless
of the fact whether it is correct or incorrect. And if any one is of the view that decision is
incorrect, the remedy available to him is to file appeal.

Waving of the right to challenge the order of 23-6-2003 would amounts to estoppel by
conduct and it was in that continuity when the services of petitioner were terminated on
the pretext of reorganization of respondent No.2 corporation and abolition of the post of
Director, Special project, it was observed by Federal Service Tribunal in Appeal No.91 of
2004 of petitioner that:--

"Thus the upshot of the above narration indicates that the respondent could not have been
terminated in a summary manner without show-cause notice or affording him personal
hearing and retrenchment in any organization has to be done on the principle of "last-in-
first-out". On abolition of the post of Director, Special Projects, the services of the junior
most Director should have been terminated and not the appellant whose seniority status is
higher than those who have been retained in service."

To highlight the mala fides of the respondents, it is observed by Federal Service Tribunal
in its second judgment pronounced on 22-4-2004 that:---

Page No. 9 of 10
"Appellant's reinstatement in service with effect from 25-8-2003 was against the post of
Director Special Projects vide respondents' order dated 18-9-2003 which post had been
already abolished vide respondents' personal Order No.16 dated 24-3-2003. This
placement of the appellant against an abolished post is ample testimony of respondent's
malice and grudge against him. Repeated abolition and creation of the post of Director,
Special Projects clearly indicate that the PIAC was being managed on the whims of its
functionaries and not on any objective assessment of its organizational requirements."

"On the one hand, respondents have taken plea of their efforts to reduce expenditure
whereas at the same time, they have created two new senior positions of Deputy
Managing Director (Operations) and (Administration) which shall obviously entail extra
heavy expenditure. This is contradictory to their stated position, not only that but they
have also promoted two officers as Directors namely Col. (Retd.) Syed Mudassar Asghar
and Col. (Retd) Ahsan Siddiqui whereas the appellant's service has been
unceremoniously terminated."

This order of Federal Service Tribunal was challenged by respondent No.2 corporation
before Honourable Supreme Court of Pakistan in C.P.L.A. No 1108 of 2004. By order
dated 3-6-2004 leave to appeal was granted and while suspending the operations of the
impugned order this appeal was ordered to be fixed along with C.P.L.As. Nos.1262 to
1266 of 2003 involving the identical questions. With the pronouncement of judgment of
Honourable Supreme Court of Pakistan in the case of Muhammad Mubeen-us-Salam and
others, all the service appeals pending were abated as such the order of tribunal dated 22-
4-2004 holds the field and appellant is to be reinstated with all back benefit as again
respondent No.2 has not assailed the second judgment of 22-4-2004.

Summing up the case we are of the view that respondents continuous act of humiliating,
harassing and badgering with mala fide intention should be put to an end. Respondents
are directed to implement the judgment of Federal Service Tribunal dated 22-4-2004 with
all its fairness, with no future snag with full consequential, financial and service benefits
as ordered on 22-4-2004.

In view of foregoing reasons, petition of petitioner is allowed with costs.

S.A.K./I-32/K Petition accepted.

Page No. 10 of 10
P L D 2007 Supreme Court 571

Present: Sardar Muhammad Raza Khan, Ch. Ijaz Ahmed and Hamid Ali Mirza, JJ

FAZAL DAD---Appellant

Versus

Col.(Rtd.) GHULAM MUHAMMAD MALIK and others---Respondents

Civil Appeal No.276 of 2001, decided on 23rd April, 2007.

(On appeal from the judgment/order dated 21-2-2000 of the Lahore High Court,
Rawalpindi Bench, Rawalpindi, passed in Writ Petition No.296 of 2000).

(a) Interpretation of statutes---

----Preamble---Scope---Preamble is always a key to interpret the statute.

(b) Anti-Terrorism Act (XXVII of 1997)---

---S. 6 & Preamble---Acts of terrorism---Trial---Object of promulgation of Anti-

Terrorism Act, 1997, was to control acts of terrorism, sectarian violence and other
heinous offences as defined in S.6 of Anti-Terrorism Act, 1997, and their speedy trial---
To bring the offence within the ambit of Anti-Terrorism Act, 1997, it is essential to
examine that offence should have nexus with the object of the Act and is covered by its
relevant provisions.

(c) Interpretation of statutes---

----Provisions of law must be read as a whole in order to determine its true nature, import
and scope.

Mian Muhammad Nawaz Sharif's case PLD 1993 SC 473 rel.

(d) Penal Code (XLV of 1860)---

----Ss. 435/447/427---Anti-Terrorism Act (XXVII of 1997), Ss.6, 7-A & 7-B---Act of

terrorism---Determination---Transfer of case to Special Court---Case registered against
accused was transferred to Special Court but High Court, in exercise of Constitutional
jurisdiction, set aside the transfer order---Validity---Ingredients of offences mentioned in
S.6 of Anti-Terrorism Act, 1997, had' no nexus with the contents of the F.I.R.---Nothing
was brought on record to show that occurrence created terror, panic or sense of insecurity
among people by securing possession of land in question by accused---Case against
accused did not qualify to be a `terrorist act' within contemplation of S.6 of Anti-
Terrorism Act, 1997, or its Schedule---High Court was justified to transfer the case to
ordinary Court---Appeal was dismissed.

Jamat-e-Islami Pakistan's case PLD 2000 SC 111 ref.

(e) Interpretation of statutes---

----Legislative intent---Statutory provisions ought not to be construed in isolation---

Courts always lean towards reasonable interpretation of statute---Legislative intent as a
guide to interpretation of statute should be gathered primarily from words used in statute.

(f) Criminal Procedure Code (V of 1898)---

----Preamble---Special law and general law---Provisions of Criminal Procedure Code,

1898---Applicability---Promulgation of special law by itself is not sufficient to supersede
provisions of law contained in Criminal Procedure Code, 1898---In case, offence has no
nexus with the parameters of special law, then general law applies.

Page No. 1 of 5
Mehram Ali's case PLD 1998 SC 1445 and Jamat-e-Islamic Pakistan's case PLD 2000 SC
111 rel.

Muhammad Munir Peracha, Advocate Supreme Court for Appellant.

M. Ilyas Siddiqui, Advocate Supreme Court for Respondents.

Date of hearing: 23rd April, 2007.

JUDGMENT

CH. IJAZ AHMED, J.---The necessary facts out of which the present appeal arises are
that petitioner/appellant got registered a case against respondent No.1 under sections
435/447/427, P.P.C. at Police Station Basal, District Attock on 14-2-1995. Formal F.I.R.
was recorded under aforesaid sections vide F.I.R. No. 12 dated 14-2-1995 at the said
police station. Respondent was sent to face trial under sections 435/447/427, P.P.C. in the
Court of Magistrate with powers of Section 30, Cr.P.C. Jand District Attock. During the
pendency of the case, the Magistrate after entertaining challan, returned the same to the
S.H.O. for submission before the Special Court established under Anti-Terrorism Act,
1997 with the observation that in the light of sections 7-A and 7-B of the Act, the offence
allegedly committed by the accused could be defined as civil commotion and therefore
was triable by special court vide order dated 30-10-1999. Investigating Officer thereafter
submitted challan before Special Tribunal/Judge Special Court, Islamabad Capital
Territory. Respondent being aggrieved filed an application before the Special Court for
transfer of the case to the ordinary court which was dismissed vide order dated 7-2-2000.
Thereafter, respondent filed Constitution Petition No.296 of 2000 in the Lahore High
Court Rawalpindi Bench which was accepted by the learned High Court vide impugned
judgment dated 21-2-2000. Petitioner/appellant being aggrieved filed C.P. No.865 of
2000 before this Court which was fixed on 14-2-2001 and leave was granted vide order
dated 14-2-2001 out of which the present appeal arises.

2. Learned counsel for the appellant submits that respondent secured impugned .
judgment from the learned High Court without impleading him as respondent in the
Constitution Petition as is evident from the contents of the memo. of parties name in the
constitution petition. He further maintains that the impugned judgment was passed by the
learned High Court in violation of principle of natural justice. He further urges that in
view of section 38 of the Anti-Terrorism Act, 1997, the case was triable by the special
court under the said Act and if the respondent was found guilty he was liable to be
punished under the provision of law which was prevailing at the time when the offence
was committed. He has also submitted legislative history of provisions of Anti-Terrorism
Act, 1997. He sums up his argument that offence is fully covered under section 6 of the
said Act therefore learned High Court erred to transfer the case to ordinary Court for trial
of the respondent.

3. Learned council for respondents has supported the impugned judgment. In support of
his contention he relied upon Jamat-e-lslami Pakistan's case (PLD 2000 SC 111).

4. We have considered the submissions made by learned counsel for the parties and
perused the record. It is better and appropriate to reproduce basic facts, relevant
provisions of Anti-Terrorism Act, amended and unamended provisions of said Act,
contents of F.I.R., to resolve the controversy between the parties:--

F.I.R. was lodged under sections 435, 447, 427, P.P.C. at Police Station Basal, Attock on
14-2-1995 After investigation challan, was submitted before Civil Judge/Magistrate
concerned who directed the Investigating Officer/S.H.O. to submit challan before the
Special Court constituted under Anti-Terrorism Act as offence committed by respondent
fully covered under the provisions of said act vide order dated 30-10-1999. Respondent
filed application before the Special Court for transfer of the case to ordinary Court which
was dismissed vide order dated 7-2-2000. Thereafter constitution petition filed by
respondent No.1 in the High Court which was accepted vide judgment dated 21-2-2000.
Hence present appeal.

Page No. 2 of 5
Anti-Terrorism Act, 1997 came into force on 20th August, 1997. Relevant provisions are
as follows:

"2(h) "terrorist act" has the meaning assigned to it in section 6.

6. Terrorism Act.---Whoever, to strike terror in the people, or any section of the people, or
to alienate any section of the people or to adversely affect harmony among different
sections of the people, does any act or thing by using bombs, dynamite or other explosive
or inflammable substances, or fire-arms, or other lethal weapons or poisons or noxious
gases or chemicals or other substances of a hazhardous nature in such a manner as to
cause, or to be likely to cause the death of, or injury to, any person or persons, or damage
to, or destruction of, property or disruption of any supplied of services essential to the life
of the community or display fire-arms, or threatens with the use of force public servants
in order to prevent them from discharging their lawful duties commits a terrorist act.

38. Punishment for terrorist act committed before this Act.---Where a person has
committed an offence before the commencement of this Act which is committed after the
date on which this Act comes into force would constitute a terrorist act hereunder he shall
be tried under this Act but shall be liable to punishment as authorized by law at the time
the offence was committed."

Anti-Terrorism Amendment Ordinance, 1999 (Ord. IV of 1999) came into force on 27th
April, 1999 wherein section 6 was amended and sections 7-A and 7-B were added which
are to the following effect:--

"5. Amendment of section 6, Act XXVII of 1997.--In the said Act, for section 6, the
following shall be substituted, namely:--

"6. Terrorist Act.--A person is said to commit a terrorist act if he,

(a) in order to, or if the effect of his actions will be to, strike terror or create a sense of
fear and insecurity in the people, or any section of the people does any act or thing by
using bombs, dynamite or other explosive or inflammable substances, or such fire-arms
or other lethal weapons as may be notified, or poison or noxious gases or chemicals, in
such a manner as to cause , or be likely to cause, the death of or injury to any person or
persons, or damage to, or destruction of, property on a large scale, or a widespread
disruption of supplies of services essential to the life of the community, or threatens with
the use of force public servants in order to prevent them from discharging their lawful
duties; or

(b) commits a scheduled offence, the effect of which will be, or be likely to be, to strike
terror, or create a sense of fear and insecurity in the people, or any section of the people
or to adversely affect harmony among different sections of the people; or

(c) commits an act of gang rape, child molestation, or robbery coupled with rape as
specified in the Schedule to this Act; or

(d) commits an act to civil commotion as specified in section 7-A."

7. Insertion of sections 7-A and 7-B, Act XXVII of 1997.--In the said Act, after section 7,
the following new sections shall be inserted, namely:--

"7-A. Creation of civil commotion.--`Civil commotion' means creation of internal

disturbance in violation of law, or intended to violate law, commencement or continuation
of illegal strikes, go-slows, lock-outs, vehicles snatching or lifting, damage to or
destruction of State or private property, random firing to create panic, charging bhatha,
acts of criminal trespass (illegal qabza). Distributing, publishing or pasting of a handbill
or making graffiti or wall chalking intended to create unrest or fear or create a threat to
the security of law and order or to incite the commission of an offence punishable under
Chapter VI of the Pakistan penal Code (Act XLV of 1860).

Page No. 3 of 5
7-B. Punishment for creating civil commotion.---Whoever commits an act of civil
commotion shall be punished with rigorous imprisonment for a term which may extend to
seven years or with fine, or with both."

The said Ordinance was further amended vide Anti-Terrorism (2nd Amendment)
Ordinance, 1999 (Ordinance XIII of 1999) wherein section 6 was amended and sections
7-A and 7-B were also inserted which are to the following effect:

"5. Amendment of section 6, Act XXVII of 1997.---In the said Act for section 6, the
following shall be substituted, namely:--

"6. Terrorist Act.--A person is said to commit a terrorist act if he,

(a) in order to, or if the effect of his actions will be to, strike terror or create a sense of
fear and insecurity in the people, or any section of the people does any act or thing by
using bombs, dynamite or other explosive or inflammable substances, or such fire-arms
or other lethal weapons as may be notified, or poison or noxious gases or chemicals, in
such a manner as to cause , or be likely to cause, the death of or injury to any person or
persons, or damage to, or destruction of, property on a large scale, or a widespread
disruption of supplies of services essential to the life of the community, or threatens with
the use of' force public servants in order to prevent them from discharging their lawful
duties; or'

(b) commits a scheduled offence, the effect of which will be, or be likely to be, to strike
terror, or create a sense of fear and insecurity in the people, or any section of the people
or to adversely affect harmony among different sections of the people; or

(c) commits an act of gang rape, child molestation, or robbery coupled with rape as
specified in the Schedule to this Act; or

(ed) commits an act of civil commotion as specified in section 7-A."

7. Insertion of new sections 7-A and 7-B, Act XXVII of 1997.--In the said Act, after
section 7, the following new sections shall be inserted, namely:-

"7-A. Creation of civil commotion.--`Civil commotion' means creation of internal

disturbance in violation of law, commencement or continuation of illegal strikes, go-
slows, lock-outs, vehicles snatching or lifting, danger to or destruction of State or private
property, random firing to create panic, charging bhatha, acts of criminal trespass (illegal
qabza).

7-B. Punishment for creating civil commotion.---Whoever commits an act of civil

commotion shall be punished with rigorous imprisonment for a term which may extend to
seven years and with fine."

The aforesaid Ordinance was further amended vide Anti-Terrorism (Amendment)

Ordinance, 2000 wherein sections 7-A and 7-B was omitted and section 6 was also
amended which are to the following effect:

"5. Omission of sections 7-A and 7-B, Act XXVII of 1997.--In the said Act, sections 7-A
and 7-B shall be omitted.

"6. Amendment of section 14, Act XXVII of 1997.--In the said Act, in section 14, after
subsection (4) the following new subsection shall be added, namely'--

(5) in case a Judge is on leave, or for any other reasons temporarily unable to perform his
duties, the Government making appointment of such Judge may, after consultation with
the Chief Justice pf. the High Court, authorize the Sessions Judge; having jurisdiction at
the 'principal seat of the Anti-Terrorism Court, to conduct proceedings of urgent nature so
long as such Judge is unable to perform his duties."

Relevant portion of F.I.R.:

Page No. 4 of 5
5. In case the aforesaid provisions and contents of F.I.R. are put in a juxta position then
section 6 of the said ordinance is not attracted. It is a settled law that preamble is always
key to interpret the statute. The very object to promulgate the Anti-Terrorism Act, 1997
was to control the acts of terrorism, sectarian violence and other heinous offences as
defined in section 6 of the Act and their speedy trial to bring the offence within the ambit
of the act, it is essential to examine that the said offence should have nexus with the
object of the act and offences covered by its relevant provisions such as section 6. It is a
settled law that provisions of law must be read as a whole in order to determine its true
nature, import and scope as law laid down by this Court in Main Muhammad Nawaz
Sharif's case PLD 1993 SC 473. It is abundantly clear that in case the provisions of act be
read as a whole with the offence which creates a sense of fear or insecurity in society,
causes of death or endangers a person's life commits an act of vehicle snatching or lifting,
damage to or disturbance of, State or private property failing to create panic charging
bhatta or criminal trespasser (Illegal qabza). As mentioned above, the ingredients of
aforementioned offences have no nexus while reading the aforesaid provisions along with
the contents of the impugned F.I.R. It is pertinent to mention here that nothing was on
record to show that occurrence created terror, 'panic or sense of insecurity among people
by securing possession of the land in question by the respondent. The word illegal Qabza
must be read with the previous words used by the legislature in clause (d) of section 6 of
the Anti-Terrorism Act, 1997 on well-known principle that statutory provisions ought not
to be construed in isolation and courts always to lean towards reasonable interpretation of
statute. The learned High Court was justified to examine the scope of terrorism at the
time of deciding the constitutional petition with regard to the transfer of case from special
court to ordinarily court on the well known maxim that legislative intent as a guide to
interpretation of statute should be gathered primarily from words used in statute. The case
in hand did not qualify to be a terrorist act within the contemplation of section 6 or
schedule of Anti-Terrorism Act and the learned High Court was justified to transfer the
case to the ordinary court. It is settled law that promulgation of special law by itself is not
sufficient to supersede provisions of law contained in Cr.P.C. In case, the offence has no
nexus with the parameters of special law, then general law will apply. The judgment of
the learned High Court is in consonance with the law laid down by this court in various
pronouncements. See Mehram Ali's case PLD 1998 SC 1445 and Jamat-e-Islami
Pakistan's case PLD 2000 SC 111.

6. For what has been discussed above, the appeal has no merit and the same is dismissed
with no order as to costs.

M.H./F-10/S Appeal dismissed.

Page No. 5 of 5
2007 C L D 114

[Lahore]

Before Mian Saqib Nisar and Fazal-e-Miran Chauhan, JJ

ABDUL RAUF---Appellant

Versus

FAROOQ AHMED and another---Respondents

R.F.A. No.209 of 2006, decided on 2nd October, 2006.

(a) Negotiable Instruments Act (XXVI of 1881)---

----Ss.6, 29-C & 35---Civil Procedure Code (V of 1908), O.XXXVII---Qanun-e-Shahadat

(10 of 1984), Art.17(2)(a)---Evidence Act (I of 1872)---Stamp Act (II of 1899), S.2(5)
(b)---Suit for recovery of money on basis of pro note---Promissory note not attested by
marginal witnesses--Article 17(2)(a) of Qanun-e-Shahadat, 1984, applicability to
promissory note---Expression "any special law" mentioned in Art.17(2)(a) of Qanun-e-
Shahadat, 1984---Scope---Plaintiffs filed suit for recovery of money on the basis of pro
note against defendant, asserting therein that defendant had executed pro note along with
receipt and an agreement in favour of plaintiffs---Defendant though denied his liability to
pay amount but admitted his signature/thumb-impression on pro note and receipt which
according to him were obtained by plaintiffs on blank papers---Defendant contended that
pro note had not been witnessed by two marginal witnesses as required under Art.17 of
Qanun-e-Shahadat, 1984 and, therefore, no right to recover "any amount was to be based
on the same---Trial Court decreed the suit and appeal filed thereagainst by defendant was
dismissed by Appellate Court---Validity---Receipt and agreement had been proved by
marginal witnesses---Defendant having admitted his signature and thumb-impression on
pro note, burden of proof had shifted upon him to prove that he had signed and thumb-
marked on blank papers---Statements of marginal witnesses had not been shattered in
cross-examination, nor any motive was attributed to them that they were making false
statements---Qanun-e-Shahadat, 1984, was a general law and expression "any special
law" appearing in Art.17(2)(a) of Qanun-e-Shahadat, 1984, meant special law dealing
with special subjects which were existing at the time of enforcement of the Qanun-e-
Shahadat, 1984---Negotiable Instruments Act, 1881, was also a special law within
meanings of Art.17(2)(a) of Qanun-e-Shahadat, 1984-Under Ss.6 & 29-C of Negotiable
Instruments Act, 1881, promissory note and cheque were negotiable instruments which
could not be attested by witnesses and in case any signature by stranger were appended
thereupon, the signing was to be presumed to have been made as indorser---Under S.35
of Negotiable Instruments Act, 1881, attestation of pro note by witnesses was
impermissible and could only be made by a stranger in capacity and status of an
indorser---Under S.2(5)(b) of Stamp Act, 1899, if an instrument, which otherwise might
be a promissory note, but if attested by witnesses, it attained legal status of a bond and no
more remained a negotiable instrument---One of the important tests to determine whether
an instrument was bond or promissory note, was attestation of witnesses---Promissory
note in question was not required to be attested by any witness and, moreover, when the
same was tendered in evidence by plaintiffs, no objection was raised by defendant---
Promissory note had been proved by two marginal witnesses of receipt---Appeal was-
dismissed.

Ram Narayan Bhagat and another v. Ram Chandra Singh and others AIR 1962 Patna 325;
Haji Hamzo Panhwar. v. Muhammad Ibrahim, and another PLD 1963 (W.P.) Kar. 962 and
Dayal and another v. Bhimma 1925 Oudh 188 rel.

(b) Negotiable Instruments Act (XXVI of 1881)---

----S. 4---Promissory note---Four conditions to qualify as a promissory note enumerated.

Following are the conditions to qualify as a promissory note:--

Page No. 1 of 5
(i) an unconditional undertaking to pay;

(ii) sum should be a sum of money and should be certain;

(iii) payment should be to or to the order of a person who is certain or to bearer of

instrument and

(iv) maker should sign it.

(c) Qanun-e-Shahadat (10 of 1984)---

---Art. 17(2)(a)---Expression "any special law" appearing in Art.17(2)(a) of Qanun-e-

Shahadat, 1984 means special law dealing with special subjects which existed at the time
of enforcement of the Qanun-e-Shahadat, 1984.

(d) Negotiable Instruments Act (XXVI of 1881)---

----Ss.6 & 29-C---Promissory note and cheque were negotiable instruments which could
not be attested by witnesses and in case any signature by stranger were appended
thereupon the signing was to be presumed to have been made as indorser.

(e) Negotiable Instruments Act (XXVI of 1881)---

----S. 35--Attestation of pro note by witnesses was impermissible and could only be made
by a stranger in capacity and status of an indorser.

(f) Stamp Act (II of 1899)---

----S. 2(5)(b)---If an instrument, which otherwise might be a promissory note, but if

attested by witnesses, the same attained legal status of a bond and no more remained a
negotiable instrument---One of the important tests to determine whether an instrument
was bond or promissory note, was attestation of witnesses.

S. M. Masud for Appellant.

Mian Muhammad Aslam Arain for Respondents.

Date of hearing: 2nd October, 2006.

JUDGMENT

MIAN SAQIB NISAR, J.---The respondents/plaintiffs brought a suit for the recovery of
an amount of Rs.3,00,000 against the appellant, under the provisions of Order XXXVII,
C.P.C., on the basis of a pro note dated 28-9-2001; it is stated in the plaint, that there was
some business transaction between the parties, on account of which the latter owed a sum
of Rs.3,00,000 to the plaintiffs and for the purpose of securing the amount, has executed a
pro note Exh.P.15, along with the receipt and also an agreement Exh.P.16 of the even
date; the appellant in the written statement, has denied his liability to pay the amount; but
has admitted his signature/thumb-impression upon the pro note and the receipt; he
however, alleged that those were obtained by the plaintiffs on the blank papers. It is
further his case that on account of supply of certain goods to him, he owed certain
amount to the respondents, which he has paid through the receipts Exh.D-1 to Exh.D-7,
amounting to Rs.4,30,000; thus only Rs.20,000 is outstanding against him, which amount
he has withheld, for the reason that the quality of the goods supplied was inferior. In view
of the pleadings of the parties, the learned trial Court, framed the following issues:--

(1) Whether the plaintiffs have no cause of action and locus standi to file this suit? OPD

(2) Whether the promissory note/receipt in dispute is illegal, void based on fraud and
liable to be set aside? OPD

(3) Whether the suit cannot proceed as the promissory note dated 28-9-2001 is contrary to
the agreement dated 28-9-2001? OPD
Page No. 2 of 5
(4) Whether the plaintiffs are estopped to bring this suit by their words and conduct?
OPD

(5) Whether the suit is false, frivolous and vexatious. If so, whether the defendant is
entitled to recover special cost from the plaintiffs? OPD

(6) Whether the plaintiffs sold cloth of substantial quality to the defendant. If so, its
effect? OPD

(7) Whether the defendant duly executed promissory note/receipt dated 28-9-2001, in
favour of the plaintiffs and received Rs.3,00,000 from them? OPP

(8) Whether the defendant executed agreement dated 28-9-2001, in favour of the
plaintiffs? OPP

(9) Relief.

Parties were put to trial; the plaintiffs examined Waheed-ul-Haq (P.W.1) and Muhammad
Nadeem (P.W-2), the marginal witnesses of the receipt, attached to the pro note to prove
the same; besides, Muhammad Saleem, brother-in-law, of the appellant, also appeared as
P.W.3 and has deposed as under:--

"I was partner in business with the defendant Abdul Rauf in the year 2000-2001. I and
Abdul Rauf, used to purchase cloth from Farooq Ahmed, etc., plaintiffs. When the
plaintiffs closed business with us the plaintiffs had to receive Rs.1,35,000 from me and
Rs.3,00,000 from the defendant. I had paid this amount to the plaintiffs and the defendant
Abdul Rauf, did not pay the amount."

The pro note, the receipt and the agreement were tendered and proved through the
statement of the marginal witnesses as Ex.P-15 and Ex.P-16; the plaintiffs also produced
receipts Ex.P-1 to Ex.P-14, the documents, as has been promised by the
appellant/defendant to pay the amount of Rs.3,00,000 in instalments, as envisaged by the
agreement Exh. P-16. As against the above, the appellant only examined himself as D.W.-
1, and produced receipts Exh.D-1 to Exh.D-7 and after the trial, the learned Court below,
by giving positive finding in favour of the plaintiffs on issues Nos.7 and 8 and against the
defendant/appellant, on issues Nos.1 to 6, has decreed the suit. Hence this appeal.

2. Learned counsel for the appellant contends that the amount of Rs.4,30,000 out of
Rs.4,50,000, has been paid by the appellant to the respondents, through receipt Exh.D-1
to Exh.D-7. It is also submitted that Exh.P-15 and Exh.P-16 were blank at the time, when
the thumb-impression/signature of the appellant were procured by the respondents on
these documents, which were signed etc. as a security for the payment of Rs.4,50,000. It
is further argued that the Court below, has misread the evidence on the record and has not
taken into account the defence propounded by the appellant. It is lastly submitted that the
pro note has not been witnessed by two marginal witnesses as required under Article 17
of the Qanun-e-Shahdat, 1984 and thus no right to recover any amount could be based on
the same.

3. We have heard the learned counsel for the parties. As far as, the proof of the pro note
and the receipt attached thereto, as also the agreement, are concerned, these documents
have been duly proved by the marginal witnesses P.W. and P.W.2; having admitted his
signature and thumb-impression on the pro note, etc., in the written statement, the burden
of proof, has shifted upon the appellant, to establish that he had signed and thumb-
marked on the blank papers and also that the amount of Rs.4,30,000, has been paid to the
respondents in lieu of the pro note.

4. We are afraid, these two important factums have not been proved by the appellant;
there is no corroboration of the statement of the appellant; besides, the receipts Exh. D-1
to Exh. D-7, pertain to the period, prior to 28-9-2000, starting from 27-11-2000 till 18-1-
2001. We are not convinced, if these receipts are regarding the discharge of the
appellant's liability towards the pro note amount. Moreover, the statements of P.W. and
P.W.2, who are the witnesses of the pro note, receipts and also the agreement, have not
Page No. 3 of 5
been shattered in the cross-examination, nor any motive has been imputed to them, that
they were making a false statement. The statement of the appellant's brother-in-law,
reproduced above, who has appeared as P.W.-3, also supports the case of the respondents.

In the light of above, we are of the view that the plaintiffs have proved their case and the
trial Court, has rightly decreed the suit.

5. As regards the argument about the lack of attestation of the pro note by two witnesses,
resulting into the non-compliance of the provisions of Article 17 (2)(a) of the Qanun-e-
Shahadat, 1984, it may be held that the application of the sub-clause ibid is subject to
clause (2) of the Article, which clearly ordains "unless otherwise provided"-------"in any
Special Law." Now the questions which arise for consideration are (i) whether the
Negotiable Instruments Act, 1881 (the Act) is a Special Law (2) and whether the Act
provides for the non-attestation of a promissory note by the witnesses.

6. In order to answer the first question, it may be held that the Order, 1984, came into
force on 26-10-1984; it is the General Law pertaining to the evidence, through which the
Evidence Act of 1872 was repealed and replaced. The expression appearing any Special
Law" in the Article undoubtedly means the Special Law dealing with the Special subject,
which were existing at the time of the enforcement of the Order. As at that time, the
Negotiable Instruments Act, 1881, was duly in force and therefore, for all intents and
purposes, it is the Special Law, within the meaning of the said Article.

For answering the second question, we find expedient to reproduce the definition of the
promissory note given in the Act, which reads as below:--

"4. "Promissory note".---A "Promissory note" is an instrument in writing (not being a

bank-note or a currency-note containing an unconditional undertaking, signed by the
maker, to pay on demand or at a fixed or determinable future time a certain sum of
money only to, or to the order of, a certain person, or to the bearer of the instrument."

It is clear from the above that in order to qualify as a promissory note, the instrument
must fulfil the following four conditions, which must co-exist:

(i) an unconditional undertaking to pay;

(ii) the sum should be a sum of money and should be certain;

(iii) the payment should be to, or to the order of, a person who is certain or to the bearer
of the instrument;

(iv) and the maker should sign it.

From the very nature, the promissory note and the cheque (defined in section 6) which
are negotiable instruments, cannot be attested by the witnesses and in case, any signatures
by the stranger are appended thereupon, the signing shall be presumed to have been made
as an indorser within the contemplation of section 29-C, of the Negotiable Instruments
Act and thus in view of the section 35, "in the absence of a contract to the contrary the
indorser of a negotiable instrument by indorsing it engages that on due presentment, it
shall be accepted and paid according to its tenor and that if it shall be dishonoured, he
will compensate the holder or subsequent indorser, who is compelled to pay any loss or
damage caused to him by such dishonour. Every indorser after dishonour is liable as upon
an endorsement payable on demand". Therefore, in view of the above, the attestation of a
pro note by the witnesses is impermissible and can only be made by a stranger in the
capacity and the status of an indorser.

7. Besides the above, according to the provisions of section 2(5)(b) of the Stamp Act,
1899, if an instrument, which may otherwise be a promissory note, but if attested, by the
witnesses, it attains the legal status of a bond and no more remains a negotiable
instrument; thus one of the important tests to determine whether an instrument is bond or
a promissory note, is the attestation of the witnesses. Reference in this behalf can be
made upon the judgment reported as Ram Narayan Bhagat and another v. Ram Chandra
Singh and others (AIR 1962 Patna 325), Haji Hamzo Panhwar v. Muhammad Ibrahim,
Page No. 4 of 5
and another (PLD 1963 (W.P.) Karachi 962) and Dayal and another v. Bhimma (1925
Oudh 188). In the light of above, we are of the considered view that the promissory note
Exh.P-15 was not required to be attested by any witness. Even otherwise, at the time,
when it was tendered in evidence by the respondent, no objection was raised by the
appellant and the document has been proved by the two marginal witnesses of the receipt.

8. Learned counsel for the appellant has also not been able to convince us, if there is any
misreading and non-reading of the evidence of the Courts below or any legal or factual
infirmity in the impugned judgment and decree, calling for interference in this appeal,
thus the same has no merits and is hereby dismissed.

S.M.B./A-201/L Appeal dismissed.

Page No. 5 of 5
2006 C L D 970

[Lahore]

Before Mian Hamid Farooq and Syed Hamid Ali Shah, JJ

FARRUKH ABBAS---Appellant

Versus

AGRICULTURAL DEVELOPMENT BANK OF PAKISTAN, MANDI BAHAUDDIN

BRANCH---Respondent

Execution First Appeal No. 467 of 2002, heard on 9th March, 2006.

Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss.15 (5) & 19 (5)---Civil Procedure Code (V of 1908), O.XXI, R.72 (1)---Execution
of decree---Purchase of property by decree holder---Permission of Executing Court---
Scope---Provisions of special law and general laws---Distinction and applicability---
Decree holder participated in auction and was the highest bidder---Judgment debtor filed
application for setting aside of auction on the ground that decree holder did not seek
permission of Court under O.XXI, R.72, C.P.C. in participating auction proceedings---
Application was dismissed by Executing Court on the ground that decree holder was not
required under Ss.15 (5) & 19(5) of Financial Institutions (Recovery of Finances)
Ordinance, 2001, to seek any such permission---Validity---When a mortgaged property
was proposed to be sold either with intervention of Court or without intervention of
Court, under the provisions of 5.15 (5) or 19 (5) of Financial Institutions (Recovery of
Finances) Ordinance, 2001, in that case legislature had conferred discretion upon decree
holder to participate in public auction without obtaining permission of Executing Court
and to purchase mortgaged property at the highest bid---In respect of purchase of
property by decree holder under O.XXI, R.72 (1) C.P.C., no holder of decree could,
without express permission of Executing Court, bid for or purchase property, which was
sold in execution of a decree---Provisions of Ss.15 (5) & 19 (5) of Financial Institutions
(Recovery of Finances) Ordinance, 2001, with regard to purchase of property by decree
holder without permission of Executing Court, were contrary to the provisions of O.XXI,
R.72 C.P.C., therefore, the provisions of special enactment would override the provisions
of C.P.C., which would give way to the contrary provisions of special statute---Decree
holder was not under any legal obligation to obtain permission of Executing Court for
purchase of mortgaged property, rather it could in its discretion, participate in public
auction and purchase mortgaged property at highest bid, which discretion was exercised
by decree holder---Order passed by Executing Court was legal and did not call for any
interference by High Court---Appeal was dismissed in circumstances.

Rana Muhammad Shafi and another v. M. Javed Iqbal Siddiqui, Judge Banking Court
No.1, Gujranwala and 2 others 2002 CLD 1269; Agha Attaullah v. Presiding Officer,
Banking Court and others 2002 CLD 1550; Nawazish Latif Bhatti v. Allied Bank of
Pakistan, Ltd. 2004 CLD 92; Messrs Nizamuddin and Company and 4 others v. The Bank
of Khyber 2003 CLD 914 and Muhammad Hassan v. Messrs Muslim Commercial Bank
Ltd. through Branch Manager and 3 others 2003 CLD 1693 distinguished.

Hudaybia Textile Mills Ltd. and others v. Allied Bank of Pakistan Ltd. and others PLD
1987 SC 512 rel.

Muhammad Khalid Sajjad for Appellant.

Nemo for Respondent.

Date of hearing: 9th March, 2006.

JUDGMENT

Page No. 1 of 4
MIAN HAMID FAROOQ, J.---Instant appeal, filed by the appellant/judgment-debtor,
proceeds against order, dated 10-6-2002, whereby the learned Judge, Banking Court,
dismissed his application, under Order XXI, rule 72 read with section 151, C.P.C.

2. Precisely stated facts, relevant for the decision of the present appeal, are that pursuant
to passing the ex parte decree, dated 21-11-2002, for a sum of Rs.13,37,996, by the
learned Judge Banking Court, against the appellant, the decree-holder/respondent
initiated the execution proceedings.

During the execution process, the learned Executing Court appointed the Court
Auctioneer for the sale/auction of appellant's property and, then, the appellant filed the
application, under section 12(2), C.P.C. and an objection petition, however, both the
applications were, statedly, withdrawn by the appellant. At one point of time, the
appellant, reportedly, undertook to deposit a portion of the decretal amount along with
auction expenses, but, he did not stick to his promise and ultimately the property _was
again put to sale/auction. On the date so fixed, no interested bidder participated in the
auction, however, respondent-Bank without obtaining permission from the learned
Executing Court, itself submitted a bid of Rs.18,00,000, as against reserve price of Rs.
12,00,000. Pursuant thereto the Court Auctioneer submitted auction report before the
learned Executing Court, thereby recommending that the sale/auction, in favour of the
respondent-Bank, be confirmed. Thereupon, the appellant filed the application, under
Order XXI, rule 72, C.P.C., submitting that as the decree holder bank participated in
auction proceedings without obtaining express permission from the Court, as required
under Order XXI, rule 72, C.P.C., therefore, the sale is illegal and void. The said
application was opposed by the respondent-Bank and ultimately the learned Executing
Court, after hearing the parties, proceeded to dismiss the said application, vide impugned
order, dated 10-6-2002, hence the present appeal.

3. None has entered appearance on behalf of the respondent-Bank, thus, it is proceeded

ex parte.

4. Learned counsel for the appellant, while referring to the provisions of Order XXI, rule
72, C.P.C. states that since no permission was obtained by the decree-holder bank to
participate in the sale, therefore, the auction conducted by the Court Auctioneer and the
ensuing impugned order be declared as null and void. Learned counsel, when confronted
with the provisions of section 15(5) read with section 19(5) of Financial Institutions
(Recovery of Finances) Ordinance, 2001 (Ordinance 2001), referred to the following
judgments:---

Rana Muhammad Shafi and another v. M. Javed Iqbal Siddiqui, Judge Banking Court
No.1, Gujranwala and 2 others 2002 CLD 1269, Agha Attaullah v. Presiding Officer,
Banking Court and others 2002 CLD 1550, Nawazish Latif Bhatti v. Allied Bank of
Pakistan, Ltd. 2004 CLD 92. Messrs Nizamuddin and Company and 4 others v. The Bank
of Khyber 2003 CLD 914 and Muhammad Hassan v. Messrs Muslim Commercial Bank
Ltd. through Branch Manager and 3 others 2003 CLD 1693.

5. We have heard the learned counsel and examined the available record. Admittedly, the
respondent-Bank sought execution of the decree through intervention of the learned
Banking Court. Section 19(2) of the Ordinance, 2001, inter alia, provides that the decree
of the Banking Court shall be executed in accordance with the provisions of C.P.C. or any
other law for the time being in force. For facility of reference said provision is
reproduced below:--

S.19(2) The decree of the Banking Court shall be executed in accordance with the
provisions of the Code of Civil Procedure, 1908 (Act V of 1908) or any other law for the
time being in farce or in such manner as the Banking Court may at the request of the
decree-holder consider appropriate, including recovery as arrears of land revenue."

Section 15(5) of Ordinance, 2001, which deals with the sale of mortgaged property,
provides that financial institution shall be entitled in its discretion to participate in public
auction and to purchase mortgaged property. which provision of law reads as follows:---

Page No. 2 of 4
S.15(5). "The financial institution shall be entitled, in its discretion to participate in the
public auction, and to purchase the mortgaged property at the highest bid obtained in the
public auction."

Section 19 of the Ordinance, deals with the execution of decree and sale with or without
the intervention of the Banking Court. Section 19(5) provides that provisions of
subsection (5), (6), (7), (8), (9), (10), (11) and (12) of section 15 shall, mutatis mutandis,
apply to sales of mortgaged property. Section 19(5) is reproduced below:

S.19(5). "Provisions of subsections (5), (6), (7), (8), (9), (10), (11) and (12) of section 15
shall. mutatis mutandis, apply to sales of mortgaged, pledged or hypothecated property
by a financial institution in exercise of its powers conferred by subsection (3)."

It flows from the joint reading of the aforenoted two provisions of law that when a
mortgaged property is proposed to be sold either with the intervention of the Court or
without the intervention of the Court, in that case legislature has conferred discretion
upon the decree-holder to participate in the public auction without obtaining the
permission of the learned Executing Court and to purchase the mortgaged property at the
highest bid.

6. Now coming to the provisions of C.P.C. in respect Of the purchase of the property by
the decree-holder. Order XXI, rule 72(1), C.P.C. provides that no holder of a decree shall
without the express permission of the Court, bid for or purchase the property which is
sold in execution of a decree. Provision of Order XXI, rule 72(1), C.P.C. is reproduced as
follows: --

O.XXI, R.72(1) "Decree-holder not to bid for or buy property without permission.---(1)
No holder of a decree in execution of which property is sold shall without the express
permission of the Court, bid for or purchase the property."

It is evident from the narrative of above provisions of Ordinance, 2001 and C.P.C. that
those are in conflict with each other. Now the question arises as to when provisions of
C.P.C. are in conflict with the special statute, i.e. Financial Institutions (Recovery of
Finances) Ordinance, 2001, then whether the provisions of former or latter law would be
applicable. The said legal question was raised, dealt with and decided by the Hon'ble
Supreme Court of Pakistan in the case reported as Hudaybia Textile Mills Ltd. and others
v. Allied Bank of Pakistan Ltd. and others PLD 1987 SC 512, with reference to the
provisions of Banking Companies (Recovery of Loans) Ordinance (XIX of 1979) in
juxtaposition with the provisions of C.P.C. It has, inter alia, been held in the case of
Hudaybia Textile Mills Ltd. and others (ibid) that special Court has to follow the
procedure laid down in regard to the suits in the C.P.C. except to the extent any contrary
provision is made in the special enactment and, therefore, wherever the provisions of
special enactment are repugnant to the provisions of the C.P.C., the procedure provided
under the special statue will override the provisions of C.P.C. It appears appropriate to
reproduce the relevant portion from the aforenoted judgment, which reads as follows:---

"...Reading sections 4(1) and 141, C.P.C. together the position that emerges clearly, is that
while exercising its civil jurisdiction the special Court has to follow the procedure laid
down in regard to the suits in the C.P.C. except to the extent any contrary provision is
made in the special enactment. Therefore, wherever the provisions of the Ordinance are
repugnant to the provisions of the C.P.C., the former will override the latter. To that
extent the general provisions of the C.P.C. will give way to the contrary provisions of the
Ordinance which will take over to the extent of the repugnancy...."

7. In view of the law declared by the Hon'ble Supreme Court of Pakistan, in the case of
Hudaybia Textile Mills Ltd. and others (ibid), which is binding on this Court per force of
Article 189 of Constitution of Islamic Republic of Pakistan as sections 15(5) and 19(5) of
special enactment, i.e. Financial Institutions (Recovery of Finances) Ordinance, 2001,
with regard to the purchase of the property by the decree-holder without the permission
of the Executing Court, are contrary to the provisions of Order XXI, rule 72 C.P.C.
therefore, the aforenoted provisions of special enactment will override the provisions of
C.P.C., which will give way to the contrary provisions of special statute. Being guided by
the aforesaid law declared, we are of the view that the respondent bank, under the
Page No. 3 of 4
circumstances, was not under any legal obligation to obtain permission of the learned
Banking Court for purchase of the mortgaged property, rather it could, in its discretion,
participate in public auction and purchase mortgaged property at highest bid, which
discretion was exercised by the respondent-Bank.

In the instant case, according to the report of the Court Auctioneer, no bidder participated
in the auction and the respondent bank purchased the property at the highest bid of
Rs.18,00,000 as against reserve price of Rs.12,00,000. We feel that the auction was
conducted according to law and thus neither the auction/sale nor the impugned orders
calls for any interference by this Court.

8. As regards the judgments, relied upon by the learned counsel suffice it to say that the
same are not, at all, applicable under the facts and circumstances of the present case,
inasmuch as none of the judgments has dealt with the provisions of Order XXI, rule 72,
C.P.C. with reference to sections 15(5) and 19(5) of Ordinance, 2001. It has been held in
the case of Nawazish Latif Bhatti (supra), relied upon by the learned counsel, that
Executing Court is well within its right to adopt any mode for execution of decree and it
can execute decree either in view of provisions of C.P.C. or in any other mode, which
Court may deem fit.

9. In the above perspective, we have examined the impugned order and find that the same
is legal and does not call for any interference by this Court, therefore, the same is hereby
maintained.

10. Upshot of the above discussion is that the appeal is devoid of merits, thus, the same
stands dismissed with no order as to costs.

M.H./F-22/L Appeal dismissed.

Page No. 4 of 4
P L D 2006 Karachi 331

Before Sabihuddin Ahmed, C. J., Ghulam Rabbani, Mushir Alam, Rahmat Hussain Jafferi
and Khilji Arif Hussain, JJ

QAMAR HUSSAIN SHAH---Applicant

Versus

THE STATE---Respondent

Criminal Transfer Applications Nos.23 of 2005 and C/W Transfer Applications Nos. 32
and 33 of 2005, decided on 15th February, 2006.

Per Sabihuddin Ahmed, C.J.; Ghulam Rabbani and Mushir Alam, JJ agreeing---

(a) General Clauses Act (X of 1897)---

----S. 6---Special law would prevail over the general law and in the event of
inconsistency and wherever the special law is silent on a subject, the provisions of the
general law would continue to apply---Principles.

M. Javed Doulat Zai v. Returning Officer 2002 CLC 198 fol.

(b) Juvenile Justice System Ordinance (XXII of 2000)---

----S. 4---Control of Narcotic Substances Act (XXV of 1997), S.45---Question framed for
the decision of the Full Bench was as to what was the effect of S.4 of the Juvenile Justice
System Ordinance, 2000 on S.45 of the Control of Narcotic Substances Act, 1997 or any
similar provisions of law conferring exclusive jurisdiction to try offences---Held, cases of
persons below the age of 18 years at the time of commission of the offence under Control
of Narcotic Substances Act, 1997 shall stand transferred to the respective Juvenile Courts
comprising Courts of Session and Magistrates in the respective districts where they have
been allegedly committed and will be proceeded in accordance with the procedure
prescribed in Juvenile Justice System Ordinance, 2000---Such Juvenile Courts, however,
will proceed with the cases from the stage at which they were transferred and no recalling
of witnesses or de novo trials will be invoked---Principles.

Ketno v. Judge, Anti-Terrorism Court 2005 MLD 353; M. Alim Ashraf v. State 2005
MLD 1028; Azra Bibi v. State 2004 PCr.LJ 1967; Muhammad Din v. Muhammad
Jahangir PLD 2004 Lah. 779; M. Javed Doulat Zai v. Returnign Officer 2002 CLC 198;
Zia Ullah v. Najibullah and others PLD 2003 SC 656; Benazir Bhutto v. Federation of
Pakistan PLD 1988 SC 416 and Habib Wahabul Khairi v. Choudhry Saeed Ahmed 1979
SCMR 545 ref.

(c) Juvenile Justice System Ordinance (XXII of 2000)---

----S. 4(2)(a)---Anti-Terrorism Act (XXVII of 1997), S.19(14)---Question framed for

decision of the Full Bench was as to what was the effect of S.12 of the Anti-Terrorism
Act, 1997 or any similar provision of law conferring exclusive jurisdiction to try
offences---Held, cases of persons below the age of 18 years at the time of commission of
the acts of terrorism in terms of Items 1 and 3 to the Third Schedule (and not under Item
2 or 4) of Anti-Terrorism Act, 1997 shall stand transferred to the respective Juvenile
Courts comprising Courts of Session and Magistrates in the respective districts where
they have been allegedly committed and will be proceeded in accordance with the
procedure prescribed in Juvenile Justice System Ordinance, 2000---Such Juvenile Courts,
however, will proceed with the cases from the stage at which they were transferred and
no recalling of witnesses or de novo trials will be invoked---Cases where children are
accused of having committed offences created by the Anti-Terrorism Act, 1997 (as
distinguished from acts of terrorism in Item 1 or those added through Item 4 of the Third
Schedule i.e. abduction or Kidnapping for ransom, use of fire-arms or explosives in
places of worships and Courts), will however, continue to remain triable by the Anti-
Terrorism Courts---Anti-Terrorism Courts will not be bound by the rules or procedures
Page No. 1 of 26
required for Juvenile Courts---Nevertheless the substantive protection not inconsistent
with the Act under the Juvenile Justice System Ordinance, 2000 would be accorded by
such Courts while trying children---Principles.

Ketno v. Judge, Anti Terrorism Court 2005 MLD 353; M. Alim Ashraf v. State 2005
MLD 1028; Azra Bibi v. State 2004 PCr.LJ 1967; Muhammad Din v. Muhammad
Jahangir PLD 2004 Lah. 779; M. Javed Doulat Zai v. Returnign Officer 2002 CLC 198;
Zia Ullah v. Najibullah and others PLD 2003 SC 656; Benazir Bhutto v. Federation of
Pakistan PLD 1988 SC 416 and Habib Wahabul Khairi v. Choudhry Saeed Ahmed 1979
SCMR 545 ref.

Per Khilji Arif Hussain, J.--Contra-

Sarwan Singh and another v. Kasturi Lal AIR 1977 SC 267; Shri Ram Narain v. Simla
Banking and Industrial Co. Ltd. 1956 SCR 603 (AIR 1956 SC 614); Ravi Dutt v. Ratan
Lal Bhargave AIR 1984 SC 967; Forbes v. Git and others AIR 1921 PC 209; The Punjab
Province v. (1) L. Sita Ram and others (2) Custodian of Evacuee Property, Punjab PLD
1956 FC 157; Industrial Development Bank of Pakistan v. Modern Poultry Farm Ltd.
1990 CLC 1030; Messrs Shafiq Hanif (Pvt.) Ltd. Karachi v. Bank of Credit and
Commerce International (Overseas) Ltd., Karachi PLD 1993 Kar. 107 and Ashoka
Marketing Ltd. and other v. Punjab National Bank AIR 1991 SC 855 ref.

Per Rehmat Hussain Jafferi, J.-

Interpretation of statutes---

----Special and general law---Maxim: Generalibus speacialia derogant and Generalia

Specialibus non derogant---Applicability.

Maxwell on Interpretation of Statutes 12th Edn. pp.196-198 and Sweard v. Vera Cruse
(1885) AC 59 ref.

Words and phrases---

----"Addition"---Meaning.

Black's Law Dictionary 6th Edn, ref.

Words and phrases---

----"Derogation"---Meaning.

Black's Law Dictionary 6th Edn. ref.

Juvenile Justice System Ordinance (XXII of 2000)----

----Ss. 4 & 15---Analysis.

Amro Jan v. Amir Muhammad 1972 SCMR 639 ref.

Control of Narcotic Substances Act (XXV of 1997)----

---Preamble---Anti-Terrorism Act (XXVII of 1997), Preamble---Trial of all accused

persons including major, minor, young and old---Manner.

Interpretation of statutes---

----Special and general enactment---Avoidance of inconsistency and repugnancy---

Principles.

Principles of Statutory Interpretation 4th Edn. p.85 by Justice G.P. Singh; Vekataramana
Devarus v. State of Mysore AIR 1958 SC 255; Calcutta Gas Co. v. State of W.B. AIR

Page No. 2 of 26
1962 SC 1044; South India Corporation v. Secretary, Board of Revenue AIR 1964 SC
207 and Ajay Kumar v. Union of India AIR 1984 SC 1145 ref.

Juvenile Justice System Ordinance (XXII of 2000)-

----Preamble---Interpretation of Juvenile Justice System Ordinance, 2000---Principles.

Interpretation of Constitution---

----Principles.

President's Reference PLD 1957 SC 219 quoted. Juvenile

Justice System Ordinance (XXII of 2000)---

----Preamble---Control of Narcotic Substances Act (XXV of 1997), Preamble---Anti-

Terrorism Act (XXVII of 1997), Preamble---Provisions of Juvenile Justice System
Ordinance, 2000 to be read with other laws including Control of Narcotic Substances Act,
1997 and Anti-Terrorism Act, 1997---Principles.

Venkateshwar Rao Government of Andhra Pradesh AIR 1966 SC 828; State v. Zia-ur-
Rehman PLD 1973 SC 59 and President's Reference PLD 1957 SC 219 ref.

Juvenile Justice System Ordinance (XXII of 2000)---

----Preamble---Control of Narcotic Substances Act (XXV of 1997), Preamble---Anti-

Terrorism Act (XXVII of 1997), Preamble---Jurisdiction of Courts created under Control
of Narcotic Substances Act, 1997 and Anti-Terrorism Act, 1997 to take cognizance and
try the offences of said Acts in respect of all the accused persons including major and
minor---Scope and extent---Principles.

Maxwell on Interpretation of Statutes 12th Edn. pp.196-198; Sweard v. Vera Cruse (1885)
AC 59; Black's Law Dictionary 6th Edn.; Amro Jan v. Amir Muhammad 1972 SCMR
639; Principles of Statutory Interpretation 4th Edn. p.85 by Justice G.P. Singh;
Vekataramana Devarus v. State of Mysore AIR 1958 SC 255; Calcutta Gas Co. v. State of
W.B. AIR 1962 SC 1044; South India Corporation v. Secretary, Board of Revenue AIR
1964 SC 207; Ajay Kumar v. Union of India AIR 1984 SC 1145; President's Reference
PLD 1957 SC 219; Venkateshwar Rao v. Government of Andhra Pradesh AIR 1966 SC
828; State v. Ziaur-Rehman PLD 1973 SC 59; Abdul Rauf Khan v. Collector, Central
Excise and Land Customs 1980 SCMR 114; Khushbakhtur Rehman v. State 1985 SCMR
1314; Muhammad Rafiq v. State and Abdul Karim Brohi v. State PLD 2005 Kar. 498 and
Yousaf Ali v. Muhammad Aslam Zia PLD 1958 SC 104 ref.

Juvenile Justice System Ordinance (XXII of 2000)---

----S.4(1)---Functions of Provincial Government under S.4(1), Juvenile Justice System

Ordinance, 2000---Scope and extent.

Muhammad Rafiq v. State and Abdul Karim Brohi v. State PLD 2005 Kar. 498 and
Yousaf Ali v. Muhammad Aslam Zia PLD 1958 SC 104 ref.

Abdul Rehman and Ms. Saleha Naeem for Applicant.

Sarwar Khan, Addl. A.-G., Habib Ahmed, Asstt. A.-G., Nadeem Azhar Siddiqui, D.A.-G.,
Mehmood Alam Rizvi, Special Prosecutor for Attorney-General for the State.

Akhtar Hussain, Advocate/President High Court Bar Association on Court Notice.

Date of hearing: 17th October, 2005.

JUDGMENT

Page No. 3 of 26
SABIHUDDIN AHMAD, C.J.---This Full Bench was constituted basically to examine
the question whether children or juvenile offenders i.e. persons below the age of 18 years
accused of offences otherwise triable by Special Court under the Control of Narcotics
Substances Act (C.N.S. Act 1997) and the Anti-Terrorism Act would continue to remain
triable by such Special Courts or were liable to be tried by Juvenile Courts established
under the Juvenile Justice System Ordinance, 2000 (Ordinance). The facts leading to the
constitution of this Bench have been stated in the opening paragraph of the judgment of
my learned brother and need not be repeated. During the course of hearing we also found
that such questions had already cropped up before the superior Courts in the country but
the conclusion recorded (as will be discussed hereinafter) were by no means consistent.
For facility of reference, however, I would reproduce the four specific questions framed
for consideration of the Court.

(1) What is the effect of section 4 of the Juvenile Justice System Ordinance, 2000 on
section 45 of the C.N.S. Act, 1997 and section 12 of the Anti-Terrorism Act, 1997 or any
similar provisions of law conferring exclusive jurisdiction to try offences?

(2) Whether the provisions of section 19(14) of the Anti-Terrorism Act are wide enough
for the purposes of treating the Special Court as Courts of Session for the purpose of
section 4(2)(a) of the Juvenile Justice System Ordinance or whether they are merely
confined to the procedure required to be adopted by Special Court?

(3) Whether the .Notification of the Provincial Government dated 20-8-2005 is legally
sustainable?

(4) Whether the provision of section 14 of Juvenile Justice System Ordinance, 2000 and
under those of section 4 inapplicable to try offences before a Special Court exercising
exclusive jurisdiction?

2. I have read the very lucid draft prepared by my learned brother Rehmat Hussain
Jafferi, J. With profoundest respects to his learning and analytical abilities, however, I
have not been able to persuade myself to subscribe to his lordship's conclusion with
respect to questions Nos. (1), (3) and (4), required to be considered by this Bench. I have,
therefore, proceeded to record my own views.

3. Before doing so, however, it might be proper to refer to the relevant statutory
provisions involved and the respective contentions of the learned counsel for the parties.
The C.N.S. Act was enacted in July, 1997 and section 45 confers exclusive jurisdiction
upon Special Courts appointed under the Act to try offences cognizable under the said
Act. Section 76 stipulates that the provisions of the said Act will have effect
notwithstanding anything contained in any other law for the time being in force.

4. The Anti-Terrorism Act was enacted a month later. Section 6(2) described several acts
otherwise punishable under different laws to be treated as "Acts of Terrorism" for the
purpose of the Act and section 7 laid down punishment for such acts. Moreover, the Act
also created substantive offences and provided for penalties. Section 13 stipulated
establishment of Anti-Terrorism Courts and section 12 conferred exclusive jurisdiction
upon such Courts to try "scheduled offences" i.e. those referred to in the Third Schedule,
namely:

(i) Any Act of Terrorism within the meaning of this Act.

(ii) Any other offence punishable under the Act.

(iii) Any attempt to commit, aid or abet or conspire to commit any of the aforesaid
offences.

Section 32 stipulates that the provisions of the Act shall have effect notwithstanding
anything contained in any law.

5. Against this backdrop the Juvenile Justice System Ordinance (Ordinance) was
promulgated on 1-7-2000 with the object, as is evident from the preamble for protection
of children in criminal litigation, which, inter alia, provides that a child, i.e. a person
Page No. 4 of 26
below the age of 18 years accused of any offence, would be exclusively triable by a
Juvenile Court established under section 4 of the Ordinance.

6. Indeed, it was pointed out by Mr. Sarwar Khan, learned Additional Advocate-General
that after the promulgation of the Ordinance, the Anti-Terrorism Act was extensively
amended in 2001 and the significant aspects of the amendments were that the definition
of a child was incorporated in section 2-D and some new offences stipulating different
punishments for children and adults were created by section 21-C. We have also noticed
that through the same Ordinance section 21-G was incorporated to provide that all
offences under this Act shall be tried by an Anti-Terrorism Court.

7. Ms. Saleha Naeem and Mr. Abdul Rehman, learned counsel appearing for the
applicants, argued that the Ordinance being a Special Law promulgated later in time
would prevail over the two Acts of 1997. They were ably supported by Mr. Akhtar
Hussain, the then President of the High Court Bar Association who relied upon the
judgments of this Court in Ketno v. Judge, Anti-Terrorism Court 2005 MLD 353 and of
the Lahore High Court in M. Alim Ashraf v. State 2005 MLD 1028. On the other hand,
Mr. Sarwar Khan, learned Additional Advocate-General and Mr. Habib Ahmed, Assistant
Advocate-General, placed reliance upon two Division Bench judgments of the Lahore
High Court in Azra Bibi v. State 2004 PCr.LJ 1967 and 'Muhammad Din v. Muhammad
Jahangir PLD 2004 Lah. 779, where their lordships upon taking note of the 2001
amendments, were persuaded to hold that children accused of offences were liable to be
tried by Anti-Terrorism Courts and not Juvenile Courts. Learned counsel urged that the
judgments taking a contrary view ought to be treated as per incurriam as the effect of
2001 amendments was not considered.

8. While fully agreeing with my learned brother that a special law would prevail over a
general law relating to the same subject, I would prefer not to use the expression "repeal"
in the context of the latter. The reason being that section 6 of the General Clauses Act
stipulates that the repeal of a statute would not revive anything not operative at the time
of such repeal. However, the ascendancy of a special law is confined only A to the extent
that as long as it is operative, it would prevail over a general law which lies in a state of
eclipse or suspended animation. However, the moment a special law is repealed the
general law becomes fully applicable. I would, therefore, restrict myself to merely saying
that the special law would prevail over, the general law. In the event of inconsistency and
wherever the special law is silent on a subject the provisions of the general law would
continue to apply as observed by the A Lahore High Court in M. Javed Doulat Zai v.
Returning Officer 2002 CLC 198.

9. Without demurring the general principles of interpretation profoundly elucidated by

my learned brother, I find some difficulty in reconciling with his analysis holding the
Juvenile Justice System Ordinance as a special law in the context of offenders and a
general law in the context of Courts. The difficulty appears to stem from the fact that the
Ordinance itself requires a special kind of offenders, i.e. children to be tried exclusively
by specified Courts, i.e. Juvenile Courts. At the same time the contention of the then
learned Deputy Attorney-General (now Mr. Justice Nadeem Azhar Siddiqui) as to the
practical difficulties which Anti-Terrorism Courts required to conduct trials on a day to
day basis and decide a case within 7 days may confront in holding speedy trial for
juvenile offenders under section 5 and not take up any other case on a day fixed for
evidence of a child accused under sections 5 and 6 of the Ordinance, is not without force.

10. While the remarkable analysis undertaken by my learned brother in attempting to

identify the special and the general provisions of the B C.N.S. Act in para.27 of his
judgment, the Anti-Terrorism Act and the Juvenile Justice System Ordinance seems to
have the merit of logical consistency I find myself unable to subscribe to the conclusion
as reflecting the true intent of the legislature. Indeed, his lordship has held that for the
purpose of trial of the offenders the C.N.S. Act and the A.T. Act are general laws,
whereas for*the purpose of Courts the Ordinance is a general law and the two Acts are
special laws. With profound respects I am unable to share this view inasmuch there seems
to be an inexorable link between the offenders and the Courts inasmuch as Special Courts
under all the three statutes appear to have been established for no other purpose than trial
of offenders. Moreover, it cannot be overlooked that apart from conferring other
substantive and procedural benefits upon children falling under the criminal justice
Page No. 5 of 26
system. Section 4(3) of the Ordinance, referred to by my learned brother in paras. 17 and
18 of the judgment, expressly stipulates that only Juvenile Court shall have exclusive
jurisdiction to try cases in which a child is accused of commission of an offence. Indeed
while High Court has been authorized to confer power of Juvenile Court upon Courts of
Session and Judicial Magistrates under section 4(2)(a) it could also set up specially
designated Courts by making appointments from amongst Advocates having at least 7
years of standing at the bar, as Presiding Officers of such Courts under section 4(2)(e).

11. It also requires to be kept in view that a large number of substantive protections
conferred upon children accused of penal offences also stem from their being exclusively
triable by Juvenile Courts. The protection against joint trial with an adult, which was also
available under the Sindh Children Act contained in section 5(1) of the Ordinance is
effectively re-enforced by section 5(2) whereby a separate trial may be held by a Court
other than the one trying the adult accused so that the evidence against the adult co-
accused does not weigh on the mind of the Juvenile Court. Again the protection against
harassment and defamation of a child accused, benevolent condition for grant of bail,
release on B parole etc. laid down in sections 6, 8, 9, 10 and 11 of the Ordinance, appear
to have been made by way of affirmative action for the protection of special category of
people in terms of Article 25(3), of the Constitution and the U.N. Convention on Rights
of Child (which has been ratified by Pakistan) only stems from the fact of such people
being triable by Juvenile Courts. For these reasons. I am unable to share my learned
brother's view that merely on account of the fact that Juvenile Courts can try all offences,
the provisions establishing them would only be treated as those general law and ought to
give way even to an earlier enacted law even without any express words suggesting so.

12. While agreeing that the language of section 32 of the Anti-Terrorism Act is slightly
different from that of section 45 of the C.N.S. Act, I find it difficult to go to the extent of
holding that the Statute was intended to prevail over future enactments,. With all respects
I am not aware of any constitutional principle whereby a legislature could bind its
successor. On the other hand., the plenary power of the legislature extends even to.
destroy vested rights conferred by its predecessor and is c only subject to limitations
imposed by the Constitution itself. Moreover, in my humble view the use (or omission to
use) the phrase "for the time being in force" makes no substantial difference inasmuch as
a legislative enactment is normally presumed to extend for an indefinite period of time
(till it is repealed) and such expression is referable not to the tine when it is enacted but
only to one when it is sought to be invoked.

13. The contention that the jurisdiction of Anti-Terrorism Courts is not affected by the
promulgation of the Juvenile Justice Ordinance is also not sustainable in view of the
pronouncement of the Honourable Supreme Court in Ziaullah v. Najibullah and others
(PLD 2003 656) announced on 17th April, 2003. In this case, the respondent, accused of
offences under section 302/34 PPC., was convicted and sentenced to death by the Anti-
Terrorism Court, Sargodha Division, vide Judgment dated 17th March, 1999, which was
maintained in appeal by the High Court through judgment dated 18th October, 1999, i.e.
prior to the enforcement of the Ordinance. Before the sentence could be executed,
however, the President granted special remission to condemned prisoners who at the time
of the commission of the offence were below 18 years of age and a Medical Board was
constituted by the provincial government to determine the age of the respondent at the
time of commission of the offence but upon the matter having been taken to the Supreme
Court, their lordships held that such age ought to be determined judicially under section 7
of the Ordinance and referred the matter to the Sessions Judge/Juvenile Court Mianwali,
for doing so. It needs to be kept in view that the conviction of the respondent had taken
place before the enforcement of the Ordinance and could not be questioned thereafter.
However, the fact that matter was referred to the Juvenile Court and not to the Anti-
Terrorism Court clearly indicates that their lordships considered the provisions of the
Ordinance to apply to matters which earlier fell within the jurisdiction of Anti-Terrorism
Courts.

14. I am in complete agreement with the observations of my learned brother in Para. 23

of the Judgment to the effect that the legislature is always presumed to have complete
knowledge of all existing laws pertaining to a subject. Nevertheless what I conclude from
the above principle is that after the enforcement of the Ordinance the legislature did
realize that exclusive jurisdiction to try children accused of any offences (including
Page No. 6 of 26
offences under Special Laws) i.e. Anti Terrorism Act came to be vested in Juvenile
courts. Therefore, while effecting amendments in the Act in 2001, section 21-G was
incorporated to re-vest such jurisdiction in Anti-Terrorism Courts in respect of certain
types of offences chosen by the legislature in its own wisdom. It is equally important to
keep in view that . section 12 already being on the Statute book, there would have been
no need to incorporate section 21-G and indeed redundancy could not be attributed to
legislative enactment. This leads me to the irresistible conclusion that such Courts can
only try children falling under item 2 of the Third Schedule, i.e. those accused of offences
under the Act but not under item 1 or item 3.

15. With all respects I also find it difficult to reconcile his lordship's in paras. 32 and 34
of the proposed judgment. In the former, it has been observed that section 32 of the Act
will have an overriding effect over the provisions of the Ordinance. Indeed, if that be so,
it would be difficult to comprehend the observations in the latter paragraph to the effect
that the Courts created under the Anti-Terrorism Act while trying juvenile accused
persons will follow the procedure prescribed under the Ordinance. It also needs to be
seen that a variety of substantive p protection to juvenile offenders under sections 6, 8, 9
and 10 emerges from their amenability to be tried by Juvenile Courts. There is also force
in the contention of Mr. Nadeem Azhar Siddiqui, Deputy Attorney General (as his
lordship then was) that it might be practically impossible for Anti-Terrorism Court to
comply with the requirement of section 19(7) of the Act in complying with the
requirements of separate trial under section 5 and the procedure under section 6 of the
Ordinance. It may also be observed that separate trial of children from adult accused who
could otherwise be tried jointly is an essential principle of Juvenile Justice System and
similar provisions were available in the Sindh Children Act, 1955 and Punjab Youthful
Offenders Ordinance, 1983.

16. I fully subscribe to my learned brother's view in respect of question No.2 to the effect
that though an Anti-Terrorism Court is required to follow the procedure of a Court of
Session, it would not E follow that such Court can be treated as a Sessions Court for all
purposes including section 4(2) of the Ordinance. In respect of question No.3, too I agree
with my learned brother's formulation in respect of the functions of the provincial
government. With respect to his conclusions as regards the effect of the Notification
dated 20-8-2005, however, I have a different view.

17. It is axiomatic that a notification can be legally sustainable if it is intra vires the
powers of the authority issuing it and is not inconsistent with the provisions of the parent
statute under which it is issued. As rightly observed in Para. 41 of the proposed judgment
the function of the provincial government is confined only to establishment of Juvenile
Courts and prescribing a territorial area for exercise of its jurisdiction. The power to
appoint Presiding Officers of Juvenile Courts has been conferred upon the High Court
under section 4(2), which has also been authorized to confer powers of Juvenile courts
upon certain functioning judicial officers i.e. Courts of Session and Magistrates of the
First Class. Therefore, in the first instance the provincial government has no authority to
confer the powers of a Juvenile Court upon any existing court or to appoint any person as
Presiding Officer of a Juvenile Court. F Moreover, even the High Court could not confer
the powers of a Juvenile Court upon an Anti-Terrorism Court, which is not a Court of
Session as observed by my learned brother. As such it seems to be patently ultra vires the
Statues and in my humble opinion it is idle to look into the intention of its draftsman.
Even the learned Additional Advocate-General did not attempt to defend the validity of
the said notification but confined himself to merely contending that cases triable by Anti-
Terrorism Courts were not affected by the Ordinance.

18. I would also like to clarify that though the notification purports to say that it was
issued with the concurrence of the High Court, our records do not reveal any such
concurrence being accorded in any event without going into the factual controversy, even
if such concurrence was given on the administrative side. I have no hesitation in holding
upon judicial examination of the matter, that it was ultra vires the powers of the Court
under section 4(2)(a) of the Ordinance and, therefore, of no legal effect.

19. With respect to question No.4 a great deal has already been discussed herein above. I
may add that if one were to accept the contention of learned Additional Advocate-General
that section 14 of the Ordinance had to be so construed as not to affect any existing law
Page No. 7 of 26
the entire Ordinance itself might have to be read as a dead letter. It could be conceivably
argued that the procedure contained in the Criminal Procedure Code would also continue
to apply. Indeed the view that the Ordinance must be read as subject to all existing laws
cannot be upheld in the face of Article 35 of the Constitution which, inter alia, speaks of
the States obligation to protect the child occurring in the principle of policy in Chapter 2
of Part-II of the Constitution though not directly enforceable have been stated to be the
conscience of the Constitution by the Full Supreme Court in Benazir Bhutto v.'
Federation of Pakistan, PLD 1988 SC 416.

20. On the other hand. Mr. Akhtar Hussain appeared nearer the mark in contending that
the expression "in addition to and not in derogation of" only meant that the existing
protection available to children will not be affected by the Ordinance. Indeed, the view
appears to have the support of the authority of the Supreme Court in Habib H Wahabul
Khairi v. Choudhry Saeed Ahmed, 1979 SCMR 545. Such a view appears to have been
perfectly consistent with Article 41 of the U.N. Convention on the rights of child, which
states that the rights so guaranteed shall not affect any provision of existing law in a
State, which is more conducive to the rights of the child.

21. From the foregoing discussions, I have arrived at the following conclusions:

(i) Cases of persons below the age of 18 years at the time of commission of the offence
under the C.N.S. Act shall stand transferred to the respective Juvenile Courts comprising
Courts of Session and Magistrates in the respective districts where they I have been
allegedly committed and will be proceeded in accordance with the procedure prescribed
in the Juvenile Justice System Ordinance, 2000. However, such Juvenile Courts will
proceed from the stage at which they were transferred and no recalling of witnesses or de
novo trials will be invoked.

(ii) Cases of such persons accused of having committed acts of j terrorism in terms of
Items 1 and 3 to the Third Schedule (and not under Item 2 or 4) shall also stand similarly
transferred.'

(iii) Cases where children are accused of having committed offences created by the Anti-
Terrorism. Act (as distinguished from acts of terrorism in Item 1 or those added through
Item 4 K of the Third Schedule i.e. abduction or kidnap for ransom, use of fire-arms or
explosives in places of worships and courts), will, however, continue to remain triable by
the Anti-Terrorism Courts.

(iv) The Anti-Terrorism Courts will not be bound by the rules or procedures required for
Juvenile Courts. Nevertheless the L substantive protection not inconsistent with the Act
under the Juvenile Justice System Ordinance would be accorded by such Courts while
trying children.

22. The legal questions having been decided, the transfer m applications may now be
heard and decided by the appropriate Benches in accordance with law.

(Sd.)

SABIHUDDIN AHMAD, C.J.

I agree.

(Sd.)

GHULAM RABBANI, J

I agree

(Sd.)

MUSHIR ALAM, J.

Page No. 8 of 26
KHILJI ARIF HUSSAIN, J.---I have the honuor to go through the draft Judgments of the
Hon'ble Chief Justice and of my learned brother Rehmat Hussain Jafferi, J. With
profound respect of learned Judges, I do not agree with the view expressed by the learned
Judges on question Nos. 1 and 4 framed for consideration of the Court. To answer these
questions referred to Full Bench first of all it is to be examined whether the juvenile in
respect of offence triable by the Special Court under Control of Narcotic Act, 1997 and
Anti-Terrorism Act, 1997 remained triable by the Special Court created under the
aforesaid Acts or is to be prosecuted only by the Court established under the Juvenile N
Justice System Ordinance, 2000. The Hon'ble Judges have dealt with the provisions in all
the 'statutes in detail and I am not reproducing the same to avoid repetition. The Anti-
Terrorism Act was brought into force for the prevention of terrorism, sectarian violence,
and for speedy trial of heinous offences and the matters connected incidentally therewith.
Likewise Control of Narcotic Substances Act, 1997 was enforced to consolidate and
amend the law relevant to narcotic drugs etc.

Section 6 of A.T.C. defines "Terrorism". Section 13 provided establishment of Anti-

Terrorism Court. Section 14 provided composition and appointment of Presiding Officers
of Anti-Terrorism Court. Section 7 defines punishment for acts of terrorism. Section 8
provided prohibition of acts intended or likely to stir up sectarian levelled, section 9
provided punishment for offences. Sections 8 and 11 provided power to order forfeiture.
Section 12 provided jurisdiction of Anti-Terrorism Court. Section 13 provided
establishment of Anti-Terrorism Court by Ordinance (XXXIX of 2001) dated 14th
August, 2001. Anti-Terrorism Act was amended by incorporation of new clauses and by
deleting certain sections of its. For the first time definition of "child" has been given in
the Ordinance as a person who at the time of commission of offence has not attained the
age of 18 years. Sections 6 and 7 was substituted by new sections 6 and 7. Section 11(a)
to 11(x) were inserted which provided organization concerned in terrorism, their
prosecution, raid and review measures to be taken against , the prescribed organizations,
money laundering, disclosure of information, punishments, seizures, detentions, etc.
Section 21 was substituted by new subsection (21) and section 21(a) to section 21(m)
were inserted.

From the perusal of various amendments made from time to time in Anti-Terrorism Act,
it appears that by incorporating and amending sections 11 and 21 certain new offences
were created under the Act.

Juvenile Justice System Ordinance, 2000 was promulgated on 1-7-2000 (i.e. before the
amendment in A.T.C. Act) to provide protection of the children in criminal litigation,
their rehabilitation in N society, reorganization of juvenile courts and matter connected
therewith and incidentally thereto. Subsection (3) of section 4 of the Ordinance provided
that Juvenile Court shall have exclusive jurisdiction to try the cases for which a child is
accused of commission of an offence. Subsection (4) provided that subject to subsection
(3) on commencement of the Ordinance all cases pending before the Trial Court only a
child accused of an offence stand transferred to Juvenile Court having jurisdiction.
Section 5 of the Act provided that notwithstanding anything contained in section 239 of
the Code, or any other law for the time being in force, no child shall be charged with or
tried with an offence together with an adult. Subsection (2) of section 5 provided that if a
child is charged with commission of an offence for which under section 239 of the Code,
or any other law for the time being in force such child could be tried together with an
adult, the Court taking cognizance of the offence shall direct separate trial of the child by
the Juvenile Court. In exercise of powers under section 15 of the Ordinance Government
of Sindh framed Juvenile Justice Rules, 2002, which provided rules how to keep a child
in custody about their diet, welfare, discipline etc. Rule 21 provided that juvenile should
be produced before a competent Court through police escort arranged from the local
police headquarters in-charge and rank of A.S.I. Section 14 of the Ordinance, 2000
provided that provision of the Ordinance shall be in addition to and not in derogation of,
any other laws for the time being in force.

Anti-Terrorism Acts, Narcotics Acts provided for establishment of Special Courts to deal
with the offences triable under the Acts, whereas Juvenile Justice System 2000 provided
for establishment of Courts dealing with the case of juvenile offenders irrespective nature
of offence committed by them.

Page No. 9 of 26
The question sometimes arises when there is conflict between two Special Acts each of
which may described as Special in some particular sense as to how far later Act should
prevail over the earlier Act. In such cases, it would seem that the rule is that the Court
should lean against repeal of earlier Act by implication and unless it is N absolutely clear
that the operation of first Act has to be curtailed by the later Act, the previous Act should
be held to continue and in force, even though later Act may be regarded as special in
some other sense. Sometimes one find two or more enactments in the same field each
containing non obstante clause, stating that provisions will have effect notwithstanding
anything inconsistent therewith contained in any other law for the time being in force.
Conflict in such cases has to be resolved on consideration of purpose and policy of the
Act. The problem of interpretation is a problem as meaning of words and their
effectiveness and medium of expression to communicate particular thought.

In the case of Sarwan Singh' and another v, Kasturi Lal AIR 1977 SC 267, it was held
that:

"Speaking generally, the object and purpose of a legislation assume greater relevance if
the language of law is obscure and ambiguous. But, it must be stated that we have
referred to the object of the provisions newly-introduced into the Delhi Rent Act in 1975
not for seeking light from it for resolving an ambiguity, for there is none, but for a
different purpose altogether. When two more law operate in the same field and each
contains a non obstante clause stating that its provision will override those of any other
law, stimulating and inscisive problems of interpretation arise. Since statutory
interpretation has no conventional protocol, cases of such conflict have to be decided in
reference to the object and purpose of the laws under consideration. A piquant situation,
like the one before us, arose in Shri Ram Narain v. Simla Banking and Industrial Co.
Ltd.,1956 SCR 603 (AIR 1956 SC 614) the competing statutes being the Banking
Companies Act, 1949 as amended by Act 52 of 1953 and the Displaced Persons (Debts
Adjustment) Act, which was introduced by the amending Act of 1953, and section 3 of
the Displaced Persons Act, 1951 contained such a non obstante clause, providing that
certain provisions would have effect "notwithstanding, anything inconsistent therewith
contained in any other law for the time being in force………………" This Court resolved
the conflict by considering the object and purpose of two laws and giving precedence to
the Banking Companies Act by observing: "It is therefore, desirable to determine the
overriding effect of one or the other of the relevant provisions in these two Acts, in a
given case, on much broader considerations of the purpose and policy underlying the two
Acts and the clear intendment conveyed by the language of the relevant provisions
therein." (p.615). As indicated by us, the special and specific purpose which motivated
the enactment of section 14A and Chapter IIIA of the Delhi Rent Act would be wholly
frustrated if the provisions of Slum Clearance Act requiring permission of the competent
authority were to prevail over them. Therefore. The newly introduced provisions of the
Dehli Rent Act must hold the field and be given full effect despite anything to the
contrary contained in the Slum Clearance Act."

In the case of Ravi Dutt v. Ratan Lal Bhargave, AIR 1984 SC 967, it was held:

"An analysis of the aforesaid decision clearly reveals that the new sections 14(A), 25(A),
25(B) and 25(C) had been introduced for the purpose of meeting a particular contingency
as spelt out in the objects and reasons behind the new provisions. Once it is recognized
that the newly-added sections are in the nature of a special law intended to apply to
classes of landlords, the inevitable conclusion would be that the application of the Slum
Act stands withdrawn to that extent and any suit falling within the scope of the aforesaid
section 14(1)(e) and 14(A) would not be governed or controlled by S.19(1)(a) of the
Slum Act."

In the case of Forbes v. Git and others, AIR 1921 PC 209, it was held that:

"If in a deed an earlier clause is followed by a later clause which destroys altogether the
obligation created by the earlier clause is to be rejected as repugnant and the earlier
clause prevails. But if he later clause does not destroy but only qualifies the earlier, then
the two are to be read together and effect is to be given to the intention of the parties as
disclosed by the deed as a whole."

Page No. 10 of 26
In the case of the Punjab Province v. (1) L. Sita Ram and others (2) Custodian of Evacuee
Property, Punjab PLD 1956 FC 157, it was held that:

"subsequent statute in general terms does not repeal previous particular statute and where
two statutes covered common field then in case of conflict with each other the later will
have to be prevailed". But in the instant case it is very difficult to say that A.T.C.,
Narcotic Courts and Juvenile Courts covered the same field.

In the case of Industrial Development Bank of Pakistan v. Modern Poultry Farm Ltd,
1990 CLC 1030, while dealing with the Industrial Development Bank of Pakistan
Ordinance, 1961, and Companies Ordinance 1984, learned Single Judge of this Court
held:

"No doubt, the bank, in order to recover its debt from an industrial concern etc. can have
resort to any of the remedies referred to in sections 38, 39, 40 or 41 of the IDBP
Ordinance, which by no means are less effective, but nothing can be spelt out from the
said provisions to suggest that they are in derogation of the provisions of the Ordinance.
The Ordinance itself is a special enactment, which has provided for special remedies in
the form of section 309 thereof. Since no intention has been expressed either in the IDBP
Ordinance or in the Companies Ordinance that the provisions contained therein are in
derogation of any other law."

In the case of Messrs Shafiq Hanif (Pvt.) Ltd. Karachi v. Bank of Credit and Commerce
International (Overseas) Ltd., Karachi PLD 1993 Kar. 107, it was held that:

"At the same time, where a right or duty has existed before the statute has come to
occupy the field, the ouster, even where explicit, was conditional and dependent upon the
functioning of the forum introduced by the Statute."

In the case of Ashoka Marketing Ltd. and others v. Punjab National Bank AIR 1991 SC
855, the Supreme Court of India held that:

"In the case of inconsistency between the provisions of two enactments, both of which
can be regarded as special in nature, the conflict to be resolved by reference to the
purpose and policy underlining the two enactments and the clear intendment conveyed by
the language of the relevant provisions therein."

However, in the instant case, it is very difficult to say Anti-Terrorism Act, Narcotic Act,
and Juvenile Courts Ordinance covered the same field. The difference between A.T.C.,
C.N.S. and Juvenile Acts is that in the earlier statutes Courts acquired jurisdiction if the
offence is triable by them whereas as in later Courts acquired jurisdiction if the offenders
is juvenile irrespective of nature of offence committed by him.

By an amendment on 15-8-2001 section 21(g) was incorporated in Anti-Terrorism Act,'

1997 which provided that all offences under this Act shall be tried by the Anti-Terrorism
Court established under this Act.

It is one of the settled principles of interpretation that legislator had before him all the law
at the time of legislation and amendment made in any statute and should be given due
weight, as the same speak not only about the intention of law-maker, but also that
legislator feels it necessary to make necessary amendment in law either to fill lacuna in
the statute or to provide additional 'remedy. On reading section 21(g) along with section
12 of the Act one arrives at a conclusion that after the enforcement of Juvenile Justice
Ordinance, 2000 it has been felt by the legislator that juvenile offenders had to be tried by
the Juvenile Court under the Ordinance, 2000 and Anti-Terrorism Court cannot try them
and to meet the object of the Anti-Terrorism Act, 1997 for prevention of terrorism,
sectarian violence, and for speedy trial for heinous offences, section 21(g) has been
incorporated and Anit-Terrorism Court has been authorized and given jurisdiction to try
all offences under the Act meaning thereby the ouster of the jurisdiction of all other
Courts including Juvenile Courts to try offenders in respect of offence under the Act.

The Hon'ble Chief Justice in his judgment at page 9 observed that:

Page No. 11 of 26
"Neither the less but I conclude on the above that after enforcement of the Ordinance
legislator did realize that the exclusive jurisdiction to. try children accused of a offence
(including offence under special law i.e. Anti-Terrorism Court) came to be vested in
Juvenile Court. Therefore, while affecting amendment in the Act, 2001, section 21(g) to
be re-vest such jurisdiction in Anti-Terrorism Court in respect of such type of offence
chosen by the legislator in its own wisdom."

From the above passage of his Lordship in the draft Judgment, it appears that the learned
Chief Justice came to the conclusion that after enforcement of Juvenile Ordinance, 2000
prior to incorporating section 21-G apparently Anti-Terrorism Court had no jurisdiction
to try juvenile involved in any offence under the Act, 1997 and therefore legislator in his
wisdom decided to amend the Act by Ordinance-VI of 2001. Indeed section 12 of the Act
and section 21(g) incorporated subsequently to some extent are overlapping but as
observed by the Hon'ble Chief Justice that "indeed redundancy could not be attributed to
the legislative enactment" effort has to be made to harmonize both the sections and to
give due, effects which legislator intends to achieve by amendment. Section 21(g)
provided "all offences under this Act" shall be tried by the Anti-Terrorism Court
established under this Act. The phrase "all offences" has to be given proper meaning.
Offences created by the Act under section 21(c) pertaining to the training given to the
person or taken by the person including child in respect of fire-arms, explosive chemical
biological or other weapon. Section 21(c) provided different sentences to a "child
offenders" that to "adult offenders". If the intention of the legislator was that Anti-
Terrorism Court has exclusive jurisdiction to try "child offenders" in respect of offences
created only under the Act than instead of using the phrase "all offences" it was very easy
for the legislator to say that the "offences under the Act" shall be tried by the Anti-
Terrorism Court established under this Act instead of using word "all". The word "all" has
been defined in Chambers 20th Century Dictionary as compromising every individual
(e.g. all men, all roads, as instances, (as many as there are, or as much as there is). The
word "all" connotes that the legislator intended, keeping in view the Juvenile Ordinance
in the field, that Anti-Terrorism Court should have exclusive jurisdiction to try all
offences under this Act including child offenders and I cannot subscribe, with all respect,
to the views expressed by his lordship that under section 21(g) of Anti-Terrorism Act,
Anti-Terrorism Court can exercise jurisdiction in respect of child offenders only to the
extent of offences created by the Act itself and not in respect of offences on which
otherwise Anti-Terrorism Court have exclusive jurisdiction.

Section 7 of the Anti-Terrorism Act was amended by the Act II of 2005 (i.e. after
enforcement of Juvenile Ordinance, 2000) enhancing the sentence up to life
imprisonment without making any difference whether the offender is juvenile or not.
Whereas section 21A to 21 M were inserted in August, 2001. Section 21 provides
different sentences to "child offender" than to "adult offenders". As regards the question
of jurisdiction to ATC Court under the Act section 12 provided that only Anti-Terrorism
Court has jurisdiction in respect of schedule of offences committed in an area in a
province notwithstanding anything contained in the Code or in any law. Subsection (2) of
section 21D provided that "all offences" under this Act punishable with death or
exceeding three years shall be non-bailable means all the offences under the Act, which
created by Act or other are non-bailable. Can we say that any offence created by the Act
are non-bailable other offences triable by the A.T. Court are bailable. Section 21G
provided all offences under this Act shall be tried by the Anti-Terrorism Court established
under this Act was further amended by Act II of 2005 on 10th January, 2005. Now it will
be read as, "All offences under this Act shall be tried exclusively by the A.T.C.
established under this Act. Section 21M provided that while trying any offence under this
Act", a Court may also try any other offence with which an accused may, under the Code
of Criminal Procedure, be charged, at the same trial if, the offence is connected with such
other offences. Section 32 of the Act gave overriding effect to Act and provided that the
provision' of this Act shall have, notwithstanding anything contained in the Code or any
other law, shall apply to the proceedings before the A.T.C. Third Schedule of the Act was
further amended and following new items are added by Act II of 2005:

"Without prejudice to the generality of the above paragraphs, the Anti-Terrorism Court to
the exclusion of any other Court shall try the offences relating to the following namely:--

(i) Abduction or kidnapping for ransom;

Page No. 12 of 26
(ii) Use of the arms or explosives by any device including bomb blast in a mosque,
imambargah, church, temple or any other place of worship, whether or not any hurt or
damage is caused thereby; or

(iii) Firing or use of explosive by any device, including bomb blast in the court
premises."

Reading of the above quoted sections and particularly amendments made after
enforcement of Juvenile Ordinance, 2000, keeping in view object of law my humble view
if a juvenile committed any offence provided under the Schedule of Anti-Terrorism Act,
then A.T.C. (Special Courts) have exclusive jurisdiction to try such juvenile and to follow
the procedure prescribed under the Act.

Section 45 of C.N.S. Act, 1997 provides that Special Court appointed under the Act shall
have exclusive jurisdiction to try and offence cognizable under the Act where section 4(3)
of the Juvenile Justice Ordinance, 2000, provides that the Juvenile Court shall have the
exclusive jurisdiction to try cases in which a child is accused of commission of an
offence. The legislature have authority to put restriction under what circumstances a
Court has to exercise the jurisdiction the legislature intentionally have not given
overriding effect to Ordinance, 2000 on other laws, as against C.N.S. and A.T.C. Act.
Section 32 of A.T.C. and section 76 of C.N.S. contain a non abstante clause i.e.
"notwithstanding anything contained in any other law" loudly speak of legislative
intention that if an offence is triabe under A.T.C. and CNS Act then only Special Court
constituted under these Acts can deal with the matter irrespective whether the offender is
juvenile or not.

For the foregoing reasons in my humble opinion Special Court established under A.T.C.
and C.N.S. Act have excessive jurisdiction to try an offence irrespective whether offender
is minor or not.

It is advisable to prove protection to juvenile offenders in criminal litigation, their

rehabilitation in Society, necessary amendments be made in the Juvenile Justice System
Ordinance, 2000 to give it overriding effect on all other laws and to matters relating to
their bail during trial and further that child should not be arrested without taking 0
permission from the Juvenile Court. The Court Officer and police dealing with the
juveniles should be given specialized training, how to deal with juveniles during trial so
as to rehabilitate them in Society to meet the guarantee given to child under Act 35 of the
Constitution.

(Sd.)

KHILJI ARIF HUSSAIN, J

RAHMAT HUSSAIN JAFFERI, J.---This Judgment will dispose of above two

references/transfer applications as common questions of facts and law are involved.

2. On 28-7-2005 the learned Judge Special Court, II (C.N.S.) Karachi sent a

reference/letter for transfer of Special case State v. Ghani Mullah bearing No.72 of 2005,
F.I.R. No. 250 of 2004 involving offences punishable under sections 6, 9 (b), Control of
Narcotic Substances Act, 1997 (hereinafter referred to as " the C.N.S. Act"). The ground
for the transfer of the case is that the accused is a juvenile offender and the Court has not
been declared as Juvenile Court within the meaning of Juvenile Justice System
Ordinance, 2000 (hereinafter referred to as the Ordinance, 2000) therefore lacks
jurisdiction to proceed with the matter. The transfer application was placed before
Division Bench. On 30-8-2005, the learned judges of the Bench passed the following
order.

"Heard Miss Saleha Naeem for applicant and Mr. Habib Ahmed A.A.-G. for State.

It is gathered from the arguments of both the learned counsel and also after going through
the relevant provisions of section 4 of the Juvenile Justice System Ordinance, 2000 and
Page No. 13 of 26
provision of section 46(5) of the Control of Narcotic Substances Act, 1997 that no powers
have been conferred upon the Special Judge Narcotic to act as Juvenile Court. We will
therefore like to observe that necessary steps may be taken in this behalf to see that power
of Juvenile Court are conferred on the Special Judge Narcotics within the terms of
subsection (5) of section 46 of the Control of Narcotic Substances Act, 1997. A copy of
this order be sent to the Registrar for appropriate action. Hearing of the cases is adjourned
sine die."

3. The Registrar placed the matter before the Hon'ble Chief Justice who ordered for
examining the question on the judicial side of the Court therefore formed a Full Bench to
examine the following questions.

(1) What is the effect of section 4 of the Juvenile Justice System Ordinance, 2000 on
section 45 of the C.N.S. Act, 1997 and section 12 of the Anti-Terrorism Act, 1997 or any
similar provisions of law conferring exclusive jurisdiction to try offences?

(2) Whether the provisions of section 19(14) of the Anti-Terrorism Act, are wide enough
for the purposes of treating the Special Court as Courts of Session for the purpose of
section 4(2)(a) of the Juvenile Justice System Ordinance or whether they are merely
confined to the procedure required to be adopted by Special Court?

(3) Whether the Notification of the Provincial Government dated 20-8-2005 is legally
sustainable?

(4) Whether the provision of section 14, of Juvenile Justice System Ordinance, 2000 and
under those of section 4 in applicable to try offences before a Special Courts exercising
exclusive jurisdiction?

4. The same Court sent another transfer application to transfer the case No.171/2005,
F.I.R. No.158 of Police Station Taimoria on the same ground.

5. On the above questions, we have heard Miss Saleha Naeem, Abdul Rehman Advocates
for the accused, Mr. Sarwar Khan, A.A.-G. assisted by Mr. Habib Ahmed Asst., A.-G.,
Mr. Nadeem Azhar D.A.-G., Mr. Mehmood A. Rizvi, Special Prosecutor Narcotics and
Mr.Akhtar Hussain, President High Court Bar Association as Amicus Curiae.

6. The learned Advocates for the accused, D.A.G, Special Prosecutor Narcotics and
President High Court Bar Association took the view that the Juvenile Court created under
section 4 of Ordinance, 2000 has exclusive jurisdiction to try the cases of juvenile
offenders, as the Ordinance, 2000 is a special enactment, which will override the
provisions of other laws; that the Provincial Government has established Juvenile Courts
under section 4(1) of the Ordinance, 2000 and that the High Court has conferred powers
of such Courts on the Courts of Session and Judicial Magistrates First Class therefore the
said Courts are competent to try the cases of all offences punishable under any law. They
have further argued that the powers of Juvenile Courts cannot be conferred upon the
Courts created under C.N.S. Act and Anti-Terrorism Act, 1997 (hereinafter referred to as
"the A.T. Act") therefore they have no jurisdiction to try the cases of juvenile offenders.

7. The learned A.A.-G. took a contrary view by arguing that the offences of C.N.S. Act
and A.T. Act are exclusively triable by the Courts created under the said enactments
therefore they have exclusive jurisdiction to try the said offences. He has further
contended that under section 32 of A.T. Act the provisions of said Act have overriding
effect on all other laws therefore the provisions of Ordinance, 2000 cannot override the
provisions of A.T. Act as such the Juvenile Courts created under the Ordinance, 2000
cannot try the offences of such Acts. He has further stated that the Courts created under
C.N.S. Act and A.T. Act can adopt the procedure of Ordinance, 2000 while trying
juvenile offenders.

8. I have given due consideration to the arguments , gone through the material available
on the record, relevant provisions of enactments and found that the questions can be
resolved by interpreting various provisions of the enactments in the light of well-
established principles of interpretation of statute. The problem revolves around the
interpretation of general and special enactments. First of all the status of the enactments
Page No. 14 of 26
has to be established as to which one of the enactments is general or which one of them is
special enactment.

9. When Ordinance, 2000 was enacted at that time, the A.T. Act and the C.N.S. Act were
already operating. The said Acts were also Special Acts in. comparison to other laws on
the subject mentioned thereunder. However, they are general Acts in relation to the rights
and liabilities of accused persons involved in the acts and omissions, which have been
made offences under the said Acts. Under the said Acts, there is a uniform procedure for
the trial of all the accused persons involved in the offences punishable under the said
Acts. It is immaterial whether accused persons are major, minor, male, female, young or
old. All the accused persons are required to be tried by the Courts created .under the P
said Acts. A rule of general law is that it applies to all persons and localities within its
jurisdiction and scope as distinguished from a special one, which in its operation is
confined to a particular person or class or persons or locality. Nevertheless, under the
Ordinance, 2000, the case of minor or juvenile accused is to be dealt with separately from
the major accused. As such the Ordinance, 2000 is a Special Act concerning the trial of
juvenile offender in comparison to the C.N.S. Act and the A.T. Act.

10. It is well-settled that special Act or subsequent Act would derogate override the
general Act on the same subject-matter irrespective of the fact whether or not derogatory,
repealing or overriding provision is available in the special or subsequent Act, because it
is the latest will and wish of the Parliament. The said principle is based upon maxim
"Generalibus Specialia derogant" which means that special thing derogate from general
thing and maxim "Generalia specialibus non derogant" that means: general thing do not
derogate from a special thing. Nevertheless, there is exception to the above rule that it is
applicable P only, in the absence of provision to the contrary and of a clear inconsistency
that a Special law will remain wholly unaffected by later general law. Reference is invited
to Maxwell on "Interpretation of Statutes" 12th Edition pages 196-198, and Seward v.
Vera Cruse (1885) AC 59, wherein it has been observed as under:

"that where there are general words in a later Act capable of reasonable and sensible
application without extending them to subjects especially dealt with by earlier legislation,
you are not to hold that earlier and special legislation indirectly repealed, altered, or
derogated from merely by force of such general words, without any indication of a
particular intention to do so."

11. In the Ordinance, 2000 there is no specific provision for overriding the provisions of
other laws. Thus the principle of maxim "Generalibus specialia derogant" does not apply
to the present case Q because different intention of the Legislature appears in the
Ordinance, 2000 in the shape of section 14, that reads as under:--

"14. Ordinance not to derogate from other laws.--- The provisions of this Ordinance shall
be in addition to and not in derogation of, any other law for the time being in force."

12. In the above provision, words "addition" and "derogation" have been used. Black's
Law Dictionary 6th Edition defines these words as under;--

"Addition.--This term embraces the idea of joining or uniting one thing to another, so as
thereby to form one aggregate. Implies physical contact, something added to another."

Derogation.--The partial repeal not abrogating of a law, as by a R subsequent act which

limits its scope or impairs its utility and force. Distinguished from abrogation, which
means the entire repeal and annulment of a law."

13. Thus, the provisions of Ordinance, 2000 do not repeal, abrogate, partially repeal, or
partially abrogate the other laws for the time being in force i.e. on the date of its
enforcement viz. 1-7-2000. But they are to be read in addition, or attached to, or prefixed
or part and parcel of the laws which were in force on the date when the Ordinance, 2000
was enacted, so as to make them one aggregate law because, the Legislature have used
the words "for the time being in force". The Honourable Supreme Court of Pakistan in
the case of Amro Jan v. Amir Muhammad, 1972 SCMR 639 has interpreted these words
as" "any other law subsisting at that time." Therefore, the provisions of Ordinance, R
2000 are deemed to be attached, connected or pre-fixed to the C.N.S. Act and A.T Act to
Page No. 15 of 26
make them one aggregate law as they were in force on the date when the Ordinance, 2000
was promulgated.

14. The Ordinance, 2000 has in all 15 sections. Section 1 deals with the short title and
commencement. Section 2 deals with definitions, under section 2(e) Juvenile Court,
means the court established under section 4. Under section 2(f) Offence, means an
offence punishable under any law for the time being in force. Under this provision all the
offences punishable under any law in force on the date of promulgation of the Ordinance,
2000 have been made triable by the Juvenile Court. s Section 3 deals with legal assistance
to be provided to juvenile offenders. Under its subsection (1), every child accused or the
victim is required to be provided legal assistance at the expense of the State. Under
subsection (2) a legal practitioner having at least five years standing at the Bar is to be
appointed to provide legal assistance. Section 4 deals with creation and jurisdiction of
Juvenile Courts. The said section is an important one for the purpose of present
proceedings therefore, the same is reproduced:--

"4. Juvenile Courts.---The provincial government shall in consultation with the Chief
Justice of High Court, by notification in the official Gazette, establish one or more
Juvenile Courts for any local area within its jurisdiction.

(2) The High Court may----

(a) confer powers of Juvenile Court on-

(i) Court of Session; or

(ii) Judicial Magistrate of the First Class; and

(b) appoint, from amongst practising Advocates having at least seven years standing at
the Bar, presiding officers of Juvenile Courts with powers of the Judicial Magistrate of
First Class for the purpose of this Ordinance on such terms and conditions as the High
Court may determine.

(3) The Juvenile Court shall have the exclusive jurisdiction to try cases in which a child is
accused of commission of an offence.

(4) Subject to subsection (3), on commencement of this Ordinance, all cases pending
before trial Court in which a child is accused of an offence shall stand transferred to the
Juvenile Court having jurisdiction.

(5) Juvenile Court shall not, merely by reasons of a change in its composition, or transfer
of the case under subsection (4), be bound to recall or rehear any witness who has given
evidence and may act on the evidence already recorded.

(6) On taking cognizance of an offence, the Juvenile Court shall decide the case within
four months."

15. A perusal of above provisions reveal that under subsection (1) Provincial Government
has been empowered to establish a Juvenile Court or more Courts in any local area within
its jurisdiction subject to condition that before establishing such Courts the Provincial
Government shall consult with the Chief Justice of the High Court. The words "any local
area within its jurisdiction" demonstrate the intention of the Legislature that Provincial
Government may assign any territorial jurisdiction to any Juvenile Court but it should be
within the Province. Thus under the above provision the Provincial Government has,
been empowered firstly to establish one or more Juvenile Courts (number of Courts) in
consultation with the Chief Justice of the High Court and secondly assigned territorial
jurisdiction to the said Courts where they exercise their powers. No other power has been
given to the Provincial Government under the subsection (1) except specifically
mentioned T above. Under subsection (2), the High Court has been authorized firstly, to
confer powers of Juvenile Court on Court of Session and secondly on the Judicial
Magistrate of First Class. Under this provision, the High Court has not been given powers
to confer powers of Juvenile Court on any other Court whatever its nomenclature may be
or any other officer except Judicial Magistrate of First Class. The High Court has further
Page No. 16 of 26
been given power to appoint a practising Advocate having at least seven years standing at
the Bar to be the Presiding Officer of Juvenile Court with powers of Judicial Magistrate
First Class. The terms and conditions of the appointment of such Advocate are also to be
determined by the High Court alone. In these matters, the Provincial Government has not
been given any authority to interfere in the exercise of such powers of the High Court.
Under subsection (3) exclusive jurisdiction to try the cases of juvenile offenders of
commission of any offence under any law in force on the day of promulgation of the
Ordinance, 2000 has been conferred upon the Juvenile Court only. Under subsection (4)
all the cases pending on the date of commencement of' this Ordinance i.e. 1-7-2000
before any Court in which a child is an accused of any offence have been transferred to
the Juvenile Court having jurisdiction but it has been made subject to the provisions of
subsection (3). Under sub-section (5) Juvenile Court has been given power to act on the
evidence already recorded, without recalling or rehearing any witness who had already
given evidence before the transferee Court because of change in its composition or
transfer of the case under subsection (4). Under subsection (6) Juvenile Court is required
to decide the case within four months after taking cognizance of the offence.

16. Under section 5, a child accused is not required to be tried along with adult accused
even if the child accused could be tried along with other accused under the provisions of
section 239 of Cr.P.C. or any other law for the time being in force. Under section 6
Juvenile Court is required to follow the procedure of Cr.P.C. unless provided otherwise
by the Ordinance. Juvenile Court should not ordinarily take up any other case on the date
when the case of a child accused is fixed for evidence on such date. At the time of trial no
other person shall be present, at the sitting of the Juvenile Court except members and
officers of the Court, parties of the case, such other persons who are directly concerned
with the proceedings including the police officers, person permitted by the Court and
guardian of the child. The court can order any person to leave the Court on the grounds
mentioned in subsection (4). Juvenile Court can also dispense with the attendance of the
child and proceed with the trial T in his absence if the Court is satisfied that the presence
of the child is not essential for the purpose of the trial. If the child becomes seriously ill
then the Court can send the child to a hospital or a medical institution for treatment at the
expense of the State. Under section 7 Juvenile Court is required to determine the age of
the child if a question arises about his age. For that purpose, Juvenile Court can hold any
inquiry, which shall include the medical report for determining the age of the child.
Under section 8 without the permission of the Court proceedings cannot be published in
any newspaper, magazine or journal in any form which may disclose the name, address,
school or any identification or particulars to lead directly and indirectly to the
identification of such child nor the picture of the child can be published. Section 9 deals
with the probation officer to assist the Court. Section 10 deals with the arrest and bail of
the juvenile offender. Section 11 deals with the release of child on probation on his
conviction. Under section 12, a child cannot be awarded punishment of death or order to
Labour during the time spent in any Borstal or such other institution. He is not required to
be handcuffed, put in fetters or given any corporal punishment at any time while in
custody except in the case where there is reasonable apprehension of his escape from the
custody then he can be handcuffed only. Under section .13 a child on conviction has.
been given right to file appeal. The Provincial Government and any person aggrieved of
the order of acquittal passed by the Juvenile Court can file appeal as provided under
section 417 of Cr.P.C. Under section 14, the provisions of the Ordinance have been made
in addition to and not in derogation of any other law for the time being in force i.e. 1-7-
2000. Under section 15, the Provincial Government has been given powers to make rules
for carrying out the purposes of the Ordinance by notification in the official Gazette.

17. It will be noticed that under C.N.S. Act and A.T. Act, trial of all accused persons,
including major, minor, young and old is to be conducted in a uniform manner. However,
a departure has been made in the Ordinance, 2000 by providing provisions by which a
juvenile offender is to be tried and punished differently from the trial and punishment
provided under both the above Acts. Such provisions of both Acts have not been repealed
or abrogated, therefore, they are intact for all intents and purposes. Such provisions of
both the Acts are to be read with the Ordinance, 2000. If both these sets of provisions are
read together, then there is conflict between them. In such a situation, one set of
provisions has to give way to the other set of provisions by overriding the other set of
provisions.

Page No. 17 of 26
18. It is one of the basic principles of interpretation of the statute that inconsistency and
repugnancy is to be avoided while interpreting the statutes, but harmonious construction
is to be given. For that purpose, the statute must be read as a whole and one provision of
the Act should be construed with reference to other provisions in the same Act, if the
inconsistency is in the same Act, so as to make consistent enactment of the whole statute.
Same principle is to be applied to the case in hand, as the provisions of Ordinance, 2000
are in addition to the provisions of the other laws. As such, it is the duty of the Court to
avoid a head on clash between the inconsistent provisions of the Act and interpret them in
such a manner so that they harmonize. This rule is known as Rule of harmonize
construction. Reference is invited to "Principles of Statutory V Interpretation" By Justice
G.P. Singh Fourth Edition page 85 and a case of Vekataramana Devarus v. State of
Mysore, AIR 1958 SC 255. The construction that reduces one of the provisions to a
useless lumber or a dead letter is not harmonious construction. Calcutta Gas Co. v. State
of W.B. AIR 1962 SC 1044. A familiar approach in all such cases is to be found out
which of the two apparently conflicting provisions is more general and which is more
specific and to construe the more general one as to exclude the more specific: South India
Corporation v. Secretary, Board of Revenue AIR 1964 SC 207. Such principle is
expressed in the above referred two maxims. Thus if a special provision is made on a
certain matter, then that matter is excluded from the general provision. In other words, the
special provision would exclude from the general provision, unless a different intention
appears in the special or general provision, because that is the ultimate wish and will of
the Legislature, which has to be implemented.

19. Apparently, the above principle is applicable in the case of conflict between
provisions of one Act or a special Act covering a single and particular statute. There will
be no difficulty in applying the said principle in such a situation. However, the question
will be if a special Act is made applicable and coverable to various acts, whether or not
the same principle will be applicable. In such a situation if different intention appears in
any of the statutes covered by the special Act then the principle will be subject to clear,
unambiguous, specific provision appearing in that statute so as to convey a different
intention of the legislature. While dealing with the special and general laws the Supreme
Court of India in a case of Ajay Kumar v. Union of India AIR 1984 SC 1145, after
examining various authorities in para. 39 at page 1144 concluded as under:--

"From the text and the decisions, four tests are deducible and these are: (i) the Legislature
has undoubted right to alter a law already promulgated through subsequent legislation,
(ii) A special law may be altered, abrogated or repealed by later general law by an express
provision, (iii) a later general law will override a prior special law if the two or so
repugnant to each V other that they cannot co-exist even though no express provision in
that behalf is found in the general law, and (iv) it is only, in the absence of a provision to
the contrary and of a clear inconsistency that a Special law will remain wholly unaffected
by later General Law."

20. It is pertinent to point out that the Legislature enact laws with a complete knowledge
of all existing laws pertaining to the same subject, the failure to add a repealing clause
indicates that the intent was not to repeal existing legislation. Legislature while enacting a
law covering various and large number of laws have also complete knowledge that in any
of such laws there is a provision, by which the special law could not affect or repeal,
override or abrogate the provisions of such law in spite of the fact of conflict in
provisions of both the laws and with that knowledge the special law was enacted.
Therefore, such intention of the Legislature has to be implemented in that particular law.
Thus when the special law is enacted covering numerous laws, unless contrary intention
appears in any of the other laws, the rule will be applicable.

21. It will be noticed that the provisions of Ordinance, 2000 have been added to
numerous Acts, which were in force on 1-7-2000. Therefore while interpreting any of
such laws the provisions of Ordinance, 2000 and provisions of that particular laws are to
be w examined together to gather the intention of the legislature: Because every law has
been enacted keeping in view certain conditions, circumstances, trend, behaviour of
people, locality, persons and gravity of situations. To overcome such gravity and other
related matters special provisions are made and sometimes provisions are also made to
make them applicable to future situations also and protect them from past, present and
subsequent enactments by providing special provisions in that behalf in the shape of
Page No. 18 of 26
provisions to give overriding effect to all past, present, future laws so as to protect the
provisions from repeal, abrogation or addition through other laws except making
amendment or repeal in the law itself. Therefore, the Legislature's intention to enact w
such law has also to be preserved and keeping in view such intention, the provisions of
Ordinance, 2000 are to be interpreted. Thus, the basic and foremost consideration while
interpreting a law is to preserve the intention of the Legislature in making such law and it
should be kept paramount consideration from any other consideration. Therefore,
whenever the provisions of Ordinance, 2000 are made applicable to any of the laws, then
both the laws should be kept together and legislation intention should be find out,
gathered and implemented.

22. A Full Bench of the Honourable Supreme Court of Pakistan in the Reference of
President PLD 1957 SC 219 has summarized the rules for interpretation of a statute
applicable to interpret Constitution and Statutes in the following manner:---

"One general rule that emerges, and it is ancient rule, from discussion on. the subject is
that in the interpretation of written instruments, whether they are constitutional or
ordinary statute or other documents, the first object of the Court is to discover the
intention of the author and that such intention is to be gathered from the words used in
the statute or document.---

The second rule is that the intention of the Legislature in enacting a statute ought to be
derived from a consideration of the whole enactment in order to arrive at a consistent
plan.---

The third rule is that statute may not be extended to meet a case for which provision has
clearly and undoubtedly not been made.

And the fourth rule is that whenever there is a particular enactment and the general
enactment in the same statute, and the latter, taken in its more comprehensive sense,
would overrule the former, the particular enactment must be operative, and the general
enactment must be taken to affect only the other parts of the statute to which it may
properly apply .........

Another elementary rule of construction of the constitutional instrument is that effect

should be given to every part and every word of the Constitution. Hence, as a general rule
the Court should avoid the construction which renders any provision meaningless or
inoperative and must lean in favour of a construction which will render every word
operative rather than one which makes some words idle and nugatory……….

The next rule in construing a constitutional provision is that it is the duty of the courts to
have recourse to the whole instrument, if necessary, to ascertain the true intent and
meaning of any particular provision ………..

And the last rule which needs statement for the purposes of this case is that if there be
any apparent redundancy between different provisions, the Court should harmonize them
if possible. The rules of construction of constitutional law requires that two sections be so
construed, if possible, as not to create to repugnancy, but that both be allowed to stand,
and that effect be given to each. Cases may, however, arise where it is impossible to
harmonize and reconcile portions of the Constitution. In such a case, if there is a conflict
between a general and special provision, the special provision must prevail in respect of
its subject matter, as it will be regarded as a limitation on the general grant."

23. Keeping in view the above rules and principles of interpretation of statute, I have
examined the questions involved in the matter.

24. A perusal of Ordinance, 2000 shows that it covers mainly five fields (1) Substantive
Law (2) Adjective or Procedural Law (3) Offender (4) Offence and (5) Court. I have
already observed that the provisions of Ordinance, 2000 are to be read with other laws
including the provisions of C.N.S. Act and A.T. Act so as to make each of them one
aggregate law. It will also be noticed that after making each of them one aggregate law I
found provisions, on the above subjects and fields conflicting with each other. Therefore,
it is to be found out which of the two apparently conflicting provisions appearing in the
Page No. 19 of 26
laws are more general and which y are more specific one to construe more general one as
to exclude the more special one. Now I will deal with the above five subjects or fields
separately.

(1) Substantive Law.-Some of the offences under C.N.S. Act and A.T. Act are carrying
punishment of death to all accused persons whether male, female, major or minor. Under
Ordinance, 2000 minor or juvenile offenders cannot be sentenced to death for such
offences. As such, the provisions of both the Acts are general provisions whereas such
provisions of Ordinance, 2000, are special provisions.

(2) Adjective or Procedural law.--Under C.N.S. Act and A.T. Act uniform procedure has
been provided for trial of major and minor offenders. Whereas under Ordinance, 2000
special procedure has been provided for the trial of juvenile offenders. As such, adjective
or procedural provisions of C.N.S. Act and A.T. Act are general provisions. The
procedural provisions of Ordinance, 2000 are special provisions to the extent of trial of
juvenile offender.

(3) Offender.--Under C.N.S. Act and A.T. Act all offenders including major and minor are
to be tried together. Whereas under Ordinance, 2000 only minor or juvenile offender is to
be tried. As such C.N.S. Act and A.T. Act are general laws in respect of trial of offenders.
The Ordinance, 2000 deals with only special kind of offender viz. juvenile therefore the
Ordinance, 2000 is a special law on the said subject.

(4) Offence.--Under C.N.S. Act specified offences mentioned under Chapter II of the Act
and under A.T., Act specified offences mentioned in the third schedule attached to the Act
are to be tried. Whereas under Ordinance, 2000 offence as defined under section 2(0, i.e.
"offence. Means an offence punishable under any law for the time being in force" is to be
tried. A comparison of the laws shows that offences triable under C.N.S. Act and A.T. Act
are specified and limited to the scope of the Acts. However, the Ordinance, 2000 covers
all y offences punishable under any law in force on the date of promulgation of the
Ordinance 2000 including offences of the C.N.S. Act and the A.T. Act. Thus, the
provisions relating to offence in the C.N.S. Act and A.T. Act comes within the definition
of special provisions whereas such provisions in Ordinance, 2000 are general provisions
covering all offences punishable under any law.

(5) Court. Under C.N.S. Act and A.T. Act Special Courts have been created to take
cognizance and try specified offences of the Acts. Their jurisdiction has been restricted to
take cognizance and trial only such offences committed under the said Acts. Whereas
under the Ordinance, 2000 Special Court has been created to take cognizance and try all
offences of any law in force on the date of promulgation of the Ordinance, 2000. As such,
the Special Court created, under Ordinance, 2000 can take cognizance of all offences of
all laws including the offences committed under C.N.S. Act and A.T. Act. Thus the Court
created under Ordinance, 2000 is the Court having general jurisdiction to take cognizance
and try all offences committed under any law. However, the Courts created under C.N.S.
Act and A.T. Act are the Courts having special jurisdiction to take cognizance and try
offence punishable under the said Acts.

25. It is well-settled law that a special provision should be given effect to the extent of its
scope, leaving the general provision to control cases where the special provision does not
apply. It has been held in the case of Venkateshawar Rao v. Govt. of Andhra Pradesh, AIR
1966 SC 828 that if a special provision is made on a certain matter, that matter is
excluded from the general provision. In the case of State v. Zia-ur-Rehman PLD 1973 SC
59 it has been observed that it is a well-established rule of interpretation that where in a
statute there are two general provisions as well as special provisions for making a
particular situation, then it is the special provisions which must be applied to that
particular case or situation instead of the general provisions. As already observed that a
five member bench of the Hon'ble Supreme Court of Pakistan in the Reference filed by
the President, PLD 1957 SC 219 has observed that if there is a conflict between a general
and special provision, the special provision must prevail in respect of its subject matter,
as it will be regarded as a limitation on the general grant. It has further been observed in
the same authority that whenever there is a particular enactment and the general
enactment in the same statute, and that the latter, taken its most comprehensive sense,
would overrule the former, the particular, enactment must be operative, and the general
Page No. 20 of 26
enactment must be taken to affect only the other parts of the statute to which it may
properly apply.

26. Keeping in view, the above-mentioned rule laid down by the honorable Supreme
Court of Pakistan it is held that the special provisions enacted in the C.N.S. Act and A.T.
Act by the legislature on the above-mentioned matters, are excluded from the general
provisions of Ordinance, 2000 on the same subject matters and vice versa. Special
provisions appearing in any of the above two Acts or Ordinance, 2000 will be qualifying
provisions or exceptions to the general provisions appearing in any of the provisions of
both the Acts and Ordinance, 2000. Thus, all the provisions of the Acts and Ordinance,
2000 are harmonized and they can co-exist together.

27. The basic principle and object of the interpretation of a statute is to determine what
intention is conveyed, either expressly or impliedly by the legislature. A perusal of
Ordinance, 2000 shows that the basic intention of the Legislature in enacting the
Ordinance, 2000, is that the different treatment be given to the juvenile offender, in
respect of procedure of trial, bail, confinement in judicial custody, sentence and
execution. Its preamble reads "An Ordinance to provide for protection of the rights of
children involved in criminal litigation". The above interpretation on the rule of
harmonize construction has nexus and fulfils the basic and latest intention of the
Legislature in enacting the Ordinance, 2000. The forum of trial under the Ordinance,
2000 is not of that much importance in view of the peculiar circumstances and various
provisions appearing in the enactments, which also convey the clear and unambiguous
intention of the Legislature while enacting such laws. Even otherwise, an accused person
cannot claim any right of trial by a particular Court, except that his rights and liabilities
should be decided in accordance with law. According to the preamble of the Ordinance,
2000 rights of the children are required to be protected, which have been protected by
interpreting the various provisions of the Acts and Ordinance, 2000 on the rule of
hamonize construction and by making all the provisions of Acts and Ordinance 2000 to
co-exist together. As such the intention of legislature has been implemented.

28. It has been emphasized that the provisions of A.T. Act have overriding effect on all
laws as provided under section 32(1), A.T. Act. The said provision reads as under:

"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, insofar as they are riot inconsistent
with the provisions of this Act, apply to the proceedings before the Anti-Terrorism Court,
and for the purpose of the said provision of the Code, the Anti-Terrorism Court shall be Y
deemed to be a Court of Session."

29. It is not out of place to mention here that all laws are enacted to cover the situations
prevailing at the time of enactment and to future situations mentioned in the law subject
to repeal or amendment if any by the Parliament itself.

30. No doubt under the above section, the provisions of the A.T. Act have overriding
effect on all laws. In the said section, a phrase "any other law" has been used. It is
pertinent to point out that the Legislature have used another phrase "any other law for the
time being in force" in Ordinance, 2000. Both the phrases carry different meanings in
respect of period of time. It is well-settled that if parliament use two different words or
phrases then both words and phrases carry different meanings. The latter phrase pertains
to a 'definite point of time and it finishes on the date of promulgation of the enactment. In
other words, it covers past and present enactments, which are in force on the date of the
promulgation of the law. Whereas the former phrase deals with an indefinite point of
time, as n6 cut off date has been fixed in it. In other words it encompasses past, present
and future enactments. However it is subject to repeal or amendment, if any, by the
Parliament itself. Reference is invited to Abdur Rauf 'Khan v. Collector, Central Excise
and Land Customs (1980 SCMR 114). If we read section 32 in this perspective then it
will be clear that all provisions of the A.T. Act have been given overriding effect to all
past, present and future laws subject to repeal or amendment if any. As such, the
provisions of A.T. Act would be having overriding effect on the provisions of Ordinance,
2000. In such a situation, a juvenile offender can be sentenced to death, tried with major
accused and so on so forth that is against the latest wish of the Parliament. We cannot
Page No. 21 of 26
apply section 32 in piecemeal by giving some of its provisions overriding effect over the
Ordinance, 2000 for the simple reason that section 32 is to be applied in its entire effect
under which all the provisions have been given overriding effect on all laws. Hence such
piecemeal interpretation is neither permissible nor can be given. The Legislature while
enacting Ordinance, 2000 knew that A.T. Act contained such provision because
Legislature knows all the laws previously enacted. To meet with this situation the
Legislature have provided section 14 in the Ordinance, 2000 by which the provisions of
the Ordinance 2000 have been added to all laws in force on the date of promulgation of
Ordinance, 2000. If the provisions of Ordinance, 2000 are added to the A.T. Act then they
become provisions of one aggregate law. The provisions of Ordinance, 2000 have been
made part and parcel, attached, or merged in A.T. Act by virtue of section 14. In such a
situation the Ordinance, 2000 will loses its different entity in comparison to A.T. Act.
However, it will retain its different entity in respect of all other laws. If the provisions of
Ordinance, 2000 are merged in the provisions of A.T. Act and the Ordinance loses its
different entity in respect of the A.T. Act then it will come out from the ambit of phrase
"any other law" of section 32 of A.T. Act. We have to harmonize the various provisions of
enactments on the rule of harmonize construction so as to give effect to the intention of
the Legislature in enacting Ordinance, 2000 because that is the first, foremost and
paramount consideration in interpreting any law than any other consideration. In such a
situation the provisions' to A.T. Act would not override the provisions, of Ordinance,
2000 but on the contrary they will co-exist together.

31. In the light of what has been discussed above, I am of the considered view that the
courts created under the C.N.S. Act A.T. Act have jurisdiction to take cognizance and try
the offences of said Acts in respect of all the accused persons including major and minor
but subject to above. Nevertheless, that trial and other related matters of the minor or
juvenile accused persons and their rights guaranteed by the Ordinance, 2000 shall be
decided in accordance with the procedure prescribed under the Ordinance, 2000.

32. Now I will deal with the questions formulated for the decision of this Bench.

33. Question No.1. This question deals with the jurisdiction of A courts created under
Ordinance, 2000, C.N.S. Act, and A.T. Act. The A relevant provisions of the Acts and
Ordinance are as under:

"Section 4(3) and (6) of Ordinance, 2000.

4(3). "The Juvenile Court shall have the exclusive jurisdiction to try cases in which a
child is accused of commission of an offence."

4(6). On taking cognizance of an offence, the Juvenile Court shall decide the case within
four months.

Sections 12(1), 13(3), 19(3) and 21-G of A.T. Act.

12(1). "Notwithstanding anything contained in the Code or in any other law, a schedule
offence committed in an area in the Province shall be triable only by the Anti-Terrorism
Court exercising territorial jurisdiction in relation to such area."

13(3). "Where more Anti-Terrorism Courts than one have been established in any area,
the Government in consultation with the Chief Justice of the High Court shall designate a
Judge of any such Court to be an administrative Judge and all cases triable under this Act
pertaining to the said area shall be filed before the said court and such judge may either
try the case himself or, A assign any case, or cases, for trial to any other Anti-Terrorism A
Court at any time prior to the framing of the charge. The cases shall be assigned to a court
one case at a time:

Provided that in order to ensure that the time of the court is not wasted if for some reason
a given case cannot proceed more than one case can be assigned to it at any time or from
time to time.

Page No. 22 of 26
In respect of a case assigned to a court under subsection (2), all orders made or
proceedings taken before the assignment shall be deemed to have been made or taken by
the court to which the case has been assigned."

21-G. Trial of offences.---All offences under this Act shall be tried exclusively by the
Anti-Terrorism Court established under this Act.

19(3) The Anti-Terrorism 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.

Section 45 of C.N.S. Act.

45. The Special Court appointed under this Act shall have the exclusive
jurisdiction to try an offence cognizable under this Act".

34. Section 4(3) of Ordinance, 2000 talks about the trial of cases in which child is
accused of an offence. The cases are prepared after commission of offences and the
question of trial of offenders starts afterward. As such there will be first offence and then
offender it cannot be vice versa. Thus, the basic question will revolve around the offence.
It is well-settled that only such Court can try an accused person if the court has
jurisdiction to take cognizance of an offence and that the Court can take cognizance in
respect of offence and not in respect of accused person. Khushbakhtur Rehman. v. State
(1985 SCMR 1314). Under subsection 6 Juvenile Court has been given powers to take
cognizance of offence. The offence under Ordinance, 2000 means all offences punishable
under any law. Whereas under sections 12(1), 19(3) read with section 21-G of AT. Act
and section 45 of C.N.S. Act, exclusive jurisdiction has been conferred upon the Anti-
Terrorism Court, and C.N.S. Court to take cognizance and try schedule offences which
are of a limited number and covering particular law. I have already observed that the
provisions of offence of C.N.S. Act and A.T. Act are special provisions in comparison to
the similar provisions of Ordinance 2000, therefore, the provisions of C.N.S. Act and- Act
will be exceptions to the general provisions of Ordinance 2000. Further the section 21-G
of A.T. Act has been inserted in the year, 2001 after the enactment of Ordinance, A 2000
under which exclusive jurisdiction has been assigned to Anti- A Terrorism Court to try all
offences (without any exception) under the A.T. Act.

35. Before the insertion of section 21.G, section 12(1) was already in existence. The
difference between both the sections is that section 12(1) deals with territorial jurisdiction
of Court, that is to say, the place of trial whereas section 21.G deals with the powers of
Court, that is to say, description of offences triable by various Courts. There is absolutely
no conflict between both the sections nor they are overlapping with each other for the
simple reason that each section deals with different subject. These two separate
jurisdictions are not alien to the criminal jurisdiction but on the contrary they are in
accord with the scheme of criminal law because similar provisions are available in the
Criminal Procedure Code in the shape of sections 28 and 177. Section 28 deals with the
description of offences cognizable by various Courts under the heading "Powers of
Court" of Chapter. III. Whereas section 177 deals with place of inquiry and- trial under
the heading of "The Jurisdiction of the Criminal Courts in Inquiries and Trials" of
Chapter XV. It will be noticed that the language of sections 28 and 177 of Cr.P.C. is more
or less similar to the language of sections 21-G and 12(1) of A.T. Act. Not only in
Criminal Law but similar previsions are also available in Civil Law in the shape of
Territorial Jurisdiction of Civil Court and its Pecuniary Jurisdiction whereby the powers
have been given to various Courts created at different places to try Civil Cases at
particular place and of particular amount. Thus both the provisions can co-exist together
and are in accordance with the scheme of Criminal Law.

36. A confusion may arise in the words "Schedule Offences" appearing in section 12(1)
and "all offences under this Act" appearing in section 21.G. There is no difference
between both the phrases as all offences under the Act are scheduled offences. The
Parliament have given power to the Federal Government to amend the schedule without
referring the matter to it as provided under section 34 of A.T. Act. The Government can
make amendment or add any offence in the schedule to be tried by A.T. Court. Once the
offence is added or amended in accordance with the provisions of section 34, then it is
triable by the A.T.C. Under section 19(3) the Court has been given powers to take direct
Page No. 23 of 26
cognizance of cases triable by the court without being sent up to it under section 190, Cr.
P.C. As already pointed out that cases are made from commission of offences. Thus all
offences defined under the A.T. Act and other offences included through section 34 are
triable by the Anti-Terrorism Court. It is further pointed out that in schedule to the A.T.
Act two kinds of offences are mentioned: (i) Act of Terrorism (ii) Offences under the Act.
In this connection it is pointed out that by virtue of section 6(6) A.T. Act, offences under
the Act have also been made as A act of terrorism. The subsection (6) reads as under:--

"A person who commits an offence under this section or any other provision of
this Act, shall be guilty of an act of terrorism".

37. Thus if a person commits any offence under any provision of this Act, then he will be
guilty of act of terrorism. Hence it seems that all the offences under the provisions of
S.A.T. Act comes within the ambit of act of terrorism.

38. Now it is to be seen as to why a necessity had arisen in enacting section 21-G in A.T.
Act. As already observed, that before Ordinance 2000, the A.T. Act had jurisdiction to try
offences committed by any accused either major or minor. After promulgation of
Ordinance 2000, situation was changed. The Parliament realized that offences of act of
terrorism might be tried under the Ordinance, 2000, therefore, a necessity arose before
the Parliament to describe which offence shall be tried by which Court. Therefore, section
21-G was enacted in the year 2001 describing the jurisdiction and powers of A.T. Court.
Not only that, in the year 2005 the word "exclusive" has further been added in the section
21-G to make it more clear that all the offences under the A.T. Act are exclusively triable
by the Anti-Terrorism Court only. It will be noticed that no exception has been made
while using the words "all offences under the Act." In section 21-G all offences mean
whatever the acts and omissions have been made offences under A.T. Act, including the
offence of act of terrorism will encompass within the meaning of "all offences under the
Act" covered by the section 21-G, therefore, the Anti-Terrorism Court has exclusive
jurisdiction to try the offences under the Act whether they are covered by the definition of
act of terrorism as defined under section 6 including its subsection (6) or any other
offence under the Act or added under section 34 by virtue of Item-I of the Schedule read
with sections 6(6) and 7(i) of A.T. Act.

39. I have already observed that Juvenile Court created under Ordinance, 2000 is the
Court of general jurisdiction for taking cognizance and trial of all offences .under any
law. Whereas the courts created under the C.N.S. Act and A.T. Act are the Courts of
special jurisdiction to take cognizance and try offences mentioned under the said Acts
therefore the provisions of both the Act are special provisions in comparison to such
provisions of the Ordinance 2000. Hence, the provisions of sections 12(1), 21-G of A.T.
Act and section 45 of C.N.S. Act will be qualifying provisions and exceptions to section 4
of Ordinance, 2000 as discussed above. On the rule of harmonize A construction, if the
provisions of both the Acts and Ordinance are read A together, then the Juvenile Court
will be having jurisdiction to try cases of offences of all laws, but subject to above except
the cases concerning the offences of C.N.S. Act and A.T. Act. The Courts created under
C.N.S. Act and A.T. Act will be having jurisdiction to try offences under the Acts
concerning major or minor accused. The question is answered accordingly.

40. Question No.2. The section 19(14) of A.T. Act reads:

"Subject to other provisions of this Act, the Anti-Terrorism Court shall, for the purpose of
trial of any offence, have all the powers of the Court of Session 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."

41. A bare reading of the above provision would reveal that Anti-Terrorism Court has
been invested with all the powers of Sessions Court for trial of offences in accordance
with the procedure prescribed in the Code for the trial before a Court of Session. As such,
the Anti-Terrorism Court while trying the offence under the Act is required to follow the
procedure prescribed in the Code for the trial of the Court of Session. For that purpose,
all the powers of Court of Session whether provided under Code or conferred upon it
under any other law have been invested upon the Anti-Terrorism Court. This provision by
itself will not make the Anti-Terrorism Court as the Court of Session but its entity as
Page No. 24 of 26
Anti-Terrorism Court created under the Act will be retained because the cognizance of
offence can only be taken by the Court created under section 13 of A.T. Act. Thus the
Anti-Terrorism Court cannot be termed as Court of Session. However Anti-Terrorism
Court can exercise all the powers of Court of Session either given to it under the Code or
conferred upon it under any law including the powers of Juvenile Court, if conferred
upon the Court of Session. Thus A.T. Court has jurisdiction to exercise all the powers of
Court of Session including the powers of Juvenile Court if conferred upon it under
section 4(2) (a) of the Ordinance 2000 in its individual capacity as Anti-Terrorism Court.
The question is answered accordingly.

42. Question No.3. Notification dated 20-8-2005 issued by the Provincial Government is
as under:--

"In exercise of powers conferred by section 4 of the Juvenile Justice System Ordinance,
2000 and in consultation with the Chief Justice, High Court of Sindh the Government of
Sindh is pleased to establish Juvenile Courts consisting of all the Sessions Judges,
Judicial Magistrates and Special Judges of Anti-Terrorism Courts of the Province."

43. I have already observed that the Provincial Government under section 4(1) of
Ordinance, 2000 have two functions to perform. Firstly to establish a Juvenile Court or
more Courts and confer territorial jurisdiction upon them, However, subject to condition
that before issuing such notification, the Chief Justice of High Court shall be consulted.
Beyond that the Provincial Government has no other functions to perform. In the above
Notification, only Juvenile Courts have been established without showing their numbers
or territorial jurisdictions. It will be noticed that Notification has not been happy worded.
Nevertheless, intention of the drafter is to be drawn from the wording of the Notification.
In the light of section 4(1) of Ordinance, 2000, such inference can be drawn from the
words:" establish Juvenile Courts consisting of all the Sessions Judges, Judicial
Magistrates and Special Judges of Anti-Terrorism Courts of the Province." Through these
words message is being conveyed that the number of the Courts will be equal to the
number of Sessions Judges, Judicial Magistrates and Special Judges of Anti-Terrorism
Courts of the Province. There are 24 Sessions Judges, 214 Judicial Magistrates and 9
Special Judges Anti-Terrorism Courts. The total number of the said officers comes to 247.
Furthermore, territorial jurisdictions of above mentioned Judges and Magistrates have
already been given to them. Therefore, 247 Juvenile Courts having territorial jurisdictions
assigned to such officers have been established in the Province. Thus, the reference to
Sessions Judges, Judicial Magistrates and Special Judges of Anti-Terrorism Courts of the
Province would be treated as the total number of all these officers and the Juvenile Courts
to equal number of such officers have been created. The jurisdiction assigned to the said
officers shall be treated as territorial jurisdiction of each Court. Hence the above
Notification shall be read as creating and establishing 247 Juvenile Courts, being equal
number of the above mentioned Officers having territorial jurisdiction assigned to each
such Court.

44. The important question is whether the Chief Justice of High Court was consulted
before issuing such. notification? The Hon'ble Chief Justice has informed that the
Government of Sindh had not consulted him before issuing the notification, though it has
been mentioned in the notification that such consultation was made with the Chief
Justice. As B the Chief Justice was not consulted before issuing such notification, B
therefore, the notification is illegal. Reference is invited to an unreported decision of a
Division Bench of this Court delivered in Criminal Transfer Application No.D-8/2004
Muhammad Rafiq v. State and Abdul Karim Brohi v. State PLD 2005 Kar. 498. It is
further pointed out that on the basis of above illegal notification, the High Court has
conferred the powers of Juvenile Courts upon the Courts of Session and Judicial
Magistrates. It is well settled that if the foundation, order and basis is illegal then all
orders, actions or superstructure on such basis, order or foundation will also be illegal as
held in the case of Yousaf Ali v. Muhammad Aslant. Zia PLD 1958 SC 104. Thus the
Notification No.GAZ/Misc/2000(133)/JCO, Karachi, dated 20-11-2004 issued by the
High Court conferring the powers of section 4(2)(a) of Ordinance, 2000 upon Courts of
Session and Judicial Magistrates in the Province of Sindh is also illegal. Therefore,
presently there is no Juvenile Court nor any powers of Juvenile Court can be conferred
upon the Courts of Sessiol and Judicial Magistrate unless the Provincial Government

Page No. 25 of 26
establishes the Juvenile Courts in consultation with the Hon'ble Chief Justice of High
Court of Sindh. Thus the notification is not legally sustainable.

45. Question No.4. A detailed discussion has already been made on the above subject and
question. I have formed the opinion that the combined effect of section 14 and section 4
of Ordinance, 2000 and other C relevant provisions of C.N.S. Act and A.T. Act is that the
Juvenile Court created under the Ordinance, 2000 has no jurisdiction to take cognizance
and try the offences of C.N.S. Act and A.T. Act. The question is replied accordingly.

46. In the light of what has been discussed above, the transfer applications may be
decided by the appropriate Benches in accordance with law.

(Sd.)

REHMAT HUSSAIN JAFFERI, J

M.B.A./Q-2/K Order accordingly.

Page No. 26 of 26
2005 P L C (C.S.) 586

[N.-W.F.P. Subordinate Judiciary Service Tribunal]

Before Justice Shahzad Akbar Khan, Chairman and Justice Ijaz-ul-Hassan Khan, Member

Syed KAMAL HUSSAIN SHAH

versus

ADMINISTRATION COMMITTEE PESHAWAR HIGH COURT PESHAWAR through

Registrar

Service Tribunal Appeals Nos.4 of 2002, and 3 of 2003 decided on 26th November, 2004.

(a) Interpretation of statutes---

----Special law vis-a-vis general law---Special law is exhaustive of subject it enacted---

Special law must be taken as exhaustive in the subject it enacted---Rights not expressly
conferred by special law could not be allowed to be spelt out by means of analogy nor
could consideration of exigency and convenience unwarranted by terms of statute be
called in aid to enlarge the scope of its provisions---If there was a special Act and a
general Act, dealing with same matter, special Act would override general Act---
Legislature, while enacting a law was expected to be mindful of its earlier legislation and
when a subsequent special Law was enacted in a manner somewhat different from the
earlier law, difference if any would be regarded as intentional and not unintentional---
General provisions would not derogate from special provisions, but latter (special
provisions) would derogate from former (general provisions)---To what extent provisions
of a Special enactment would override provisions of a general enactment, must depend
upon the language of special Act.

Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui and others 1991 SCMR 1129 ref.

(b) North-West Frontier Province Subordinate Judiciary Service Tribunal Act (VIII of
1991)---

----S.5 (b)(i)---North-West Frontier Province Service Tribunal Act (I of 1974), S. 4(b)

(i)---Appeal---Competency of---Appellant had called in question the decision of
Administration Committee of High Court, whereby he was superseded and some other
Judicial Officers were promoted to the rank of Additional District and Sessions Judges
(BPS-19)---Provisions of North-West Frontier Province Subordinate Judiciary Service
Tribunal Act, 1991 which was special Act would override provisions of North-West
Frontier Province Service Tribunals Act, 1974 which was general Act---Language of
S.5(b)(i) of North-West Frontier Province Subordinate Judiciary Service Tribunal Act,
1991, had clearly spelled out intention that no appeal would lie to Service Tribunal
against the decision of a Departmental Authority determining fitness or otherwise of a
person to be appointed to or hold a particular post or to be promoted to a higher post,
whereas prayer of appellant was for promotion to a higher post---Case of appellant was
considered by Administration Committee, but he was not found fit for promotion, it was
only the fitness of appellant which was determined and not his eligibility---Appeals
in view of their subject-matter i.e. soliciting promotion, were not competent before
Service Tribunal.

Rustam Khan Kundi for Appellant.

Nemo for Respondent.

Date of hearing: 26th November, 2004.

JUDGMENT

JUSTICE SHAHZAD AKBAR KHAN (CHAIRMAN).---The appellant Syed Kamal

Hussain Shah Senior Civil Judge (BPS-18) filed this appeal calling in question the
Page No. 1 of 3
decision of the Administration Committee of High Court whereby, on superseding him,
some other Judicial Officers were promoted to the rank of Additional District and
Sessions Judges (BPS-19), The prayer of the appellant was to the following effect:--

“On acceptance of this appeal order may kindly be passed for the promotion of the
appellant to the rank of Additional District and Sessions Judge with all back-benefits.”

2. Subsequently another Appeal bearing No.3/2003 was also filed by the appellant with
a similar prayer. Since the matter pertains to the promotion of the appellant and
involves identical question of law, therefore, our this order shall govern the
disposal of both the appeals.

3. On 5-11-2004 through an order recorded in Appeal No.3/2003 this appeal was also
adjourned for the purpose of considering the question of its maintainability in view of
section 5 (b) (i) of the N.-W.F.P. Subordinate Judiciary Service Tribunal Act, 1991
which shall hereinafter be referred to as the Act. Owing to its relevancy the relevant
provision of section 5 of the Act is reproduced hereunder:

“(b) No appeal shall lie to the Tribunal against an order or decision of a departmental
authority determining--

(i) the fitness or otherwise of a person to be appointed to or hold a particular post or

to be promoted to a higher post.”

4. The learned counsel appearing on behalf of the appellant has argued that the above
quoted provisions should not come into the way of the appellant as the question of
promotion stems out of the terms and conditions of his service, therefore, he can seek his
remedy through the instant appeal. The second limb of his argument was that as the
above quoted provision is not in conformity with the N.W.F.P. Service Tribunals Act,
1974 therefore it cannot take away the vested right of the appellant. On this feature of
the argument he made reference to clause (b) (i) of section 4 of the ibid Act of 1974
which is in the following manner:--

“(b) No appeal shall lie to a Tribunal against an order decision of a departmental

authority determining--

(i) the fitness or otherwise of a person to be appointed to a higher post or grade.”

As an endeavour to make benefit of the ibid Act of 1974 he urged that in clause (b) (i) the
words “or to be promoted to higher post” have been omitted, therefore, such words
appearing in section 5 (b) (i) of the Act which impede the way of the appellant should be
taken out of consideration. The learned counsel has placed reliance on the judgment of
the Honourable Supreme Court of Pakistan reported as Mian Abdul Malik v. Dr.
Sabir Zameer Siddiqui and others (1991 SCMR 1129).

5. We have anxiously considered the arguments of the learned counsel for the appellant.
Admittedly, the instant appeals are filed under section 5 of the Act which is a special
enactment and this Tribunal is also created under the same Statute. As per its Preamble
the Act covers the matters relating to the terms and conditions of service of members of
Subordinate Judiciary of the N.-W.F.P. and for matters connected therewith or ancillary
thereto. The law is familiar on this point that a special law must be taken as exhaustive in
the subject it enacts. Rights not expressly conferred by it cannot be allowed to be spelt
out by means of analogy nor can consideration of exigency and convenience unwarranted
by the terms of Statute be called in aid to enlarge the scope of its provisions. If there is a
Special Act and a General Act that has been called in aid by the learned counsel for
the appellant being N.-W.F.P. Service Tribunals Act, 1974, dealing with the same
matters, the Special Act shall override the General Act. The Legislature while enacting a
law is expected to be mindful of its earlier legislation and when a subsequent Special
Law is enacted in a manner somewhat different to the earlier law, the difference if any
shall be regarded as intentional and not unconscious. The known rule of the Interpretation
of Statute is that the general provisions do not derogate from the special provisions but
the latter do derogate from the former. To what extent the provisions of a special

Page No. 2 of 3
enactment override the provisions of a general enactment must depend upon the
language of the Special Act.

6. Proceedings upon the above legal principle there remains no doubt to hold that the
provisions of the Special Act shall override the provisions of the General Act, i.e. the
N.-W.F.P. Service Tribunals Act, 1974. The language of the Act is plain and clear which
spells out the clear intention that no appeal shall lie to this Tribunal against the decision
of a departmental authority determining the fitness or otherwise of a person to be
appointed to or hold a particular post or to be promoted to a higher post. Obviously, the
prayer of the appellant is for promotion to a higher post. The judgment of the Honourable
Supreme Court of Pakistan cited at the bar is also of no help to the appellant. It is clearly
held therein that what is barred from the jurisdiction of Service Tribunal is the question of
fitness of a civil servant for promotion not the question of eligibility to promotion. In
other words, if we are not erring in properly appreciating the ratio, the Service Tribunal is
vested with the jurisdiction to determine the eligibility of a civil servant for his promotion
but the determination of fitness is out of its domain. Admittedly, the case of the appellant
was considered by the learned Administration Committee but he was not found fit for
promotion. Thus it was only the fitness of the appellant which was determined and not his
eligibility.

7. On the foregoing statement of law and facts we see no force in the arguments of the
learned counsel for the appellant. Resultantly, it is held that the instant appeals in view of
their subject-matter i.e. the solicited promotion, are not competent before this Tribunal.
Both the appeals are, therefore, dismissed in limine.

H.B.T./314/P Appeals dismissed.

Page No. 3 of 3
P L D 2004 Quetta 1

Before Amanullah Khan and Fazal-ur-Rehman, JJ

Haji BISMILLAH---Petitioner

Versus

GOVERNMENT OF BALOCHISTAN through Secretary, Home Department, Civil

Secretariat, Quetta and 5 others---Respondents

Constitutional Petition No.617 of 2001, decided on 12th May, 2003.

(a) Constitution of Pakistan (1973)-----

----Arts. 45 & 2A---President's power to grant pardon etc.---Scope--President in exercise

of his powers under Art.45 of the Constitution can grant remissions or pardon to any
prisoner who has been convicted and sentenced under any offence contained in general
law or in special law--Article 45 of the Constitution overrides the provisions of the Penal
Code and the Code of Criminal Procedure---Article 2A was not a supra Constitutional
measure.

Hakim Khan and 3 others v. Government of Pakistan and others P L D 1992 SC 593 and
Eid Muhammad and another v. The State PLD 1992 SC 14 ref.

(b) Constitution of Pakistan (1973)-----

----Arts. 45 & 48(2)---President's power to grant pardon etc.---Scope and powers of the
President under Art. 45 of the Constitution are discretionary in view of the provisions of
Art. 48(2) of the Constitution and no embargo whatsoever has been placed on them---
Exercise of such discretion cannot be assailed before any forum including a Court of law.

1999 Y L R 1596 ref.

(c) Constitution of Pakistan (1973)---

----Art. 45---Remission Rules, 1965---Prisons Rules, R.217(1)--President's power to

grant pardon etc.---Grant of remissions--Remissions granted by the President under Art.
45 of the Constitutions can neither be curtailed nor affected by Prison Rules read with
Remission Rules, 1965.

1979 S C M R 302 ref.

(d) Penal Code (XLV of 1860)-----

----S. 302(b)---Criminal Procedure Code (V of 1898), Ss.401 & 402(c)--Constitution of

Pakistan (1973), Arts. 45, 55 & 199---Constitutional petition---Remissions granted to
accused---Validity---Remission granted to accused through Notifications issued prior to
the conviction of accused were not admissible in case of accused as he was not convicted
and undergoing sentence on those days and the benefit of said Notifications could not be
extended to him by way of reduction from his term of imprisonment as the sentence was
always preceded by conviction--Benefit of remissions extended to accused through
Notifications issued during the period they remained as under trial prisoners were also
not admissible as they were not convicted persons and were not undergoing sentences---
Amendments brought about in Chap. XVI, S.55, P.P.C. and S.402-C. Cr.P.C had put a bar
on grant of remission without the consent of the victim or his heirs and the Provincial
Government in view of S.402-C, Cr.P.C. had no authority to exercise its powers under
S.401, Cr.P.C. provisions of which were repugnant to Injunctions of Islam---Benefit of
the Notifications granting remissions mentioned above was not available to accused in
the given circumstances and grant of the same to the accused was declared to be contrary
to law and without lawful authority---Constitutional petition was accepted accordingly.

Page No. 1 of 13
Hakim Khan and 3 others v. Government of Pakistan and others PLD 1992 SC 593; Eid
Muhammad and another v. The State PLO 1992 SC 14; 1999 YLR 1596; 1979 SCMR
302; 1999 PCr.LJ 1507; 2001 PCr.LJ 1453; 1998 PCr.LJ 921 and Habib-ul-Wahab
Alkhairi and others v. Federation of Pakistan PLD 1991 FSC 236 ref.

(e) Penal Code (XLV of 1860)---

---S. 55---Criminal Procedure Code (V of 1898), S.402-C---Bar on grant of remissions---

Amendments brought about in Chap. XVI, S.55, P.P.C. sand S.402-C, Cr.P.C. have put a
bar against grant of remission without the consent of the victim or as the case may be, of
his heirs.

Shakil Ahmed and Ayaz Zahoor for Petitioner.

Ghulam Mustafa Mengal Addl. A.-G.

Zahid Malik for Respondent No.2.

Sh. Ghulam Ahmed for Respondent No.4.

Muhammad Aslam Chishti for Respondents Nos. 5 and 6.

Date of hearing: 3rd December, 2002.

JUDGMENT

FAZAL-UR-REHMAN, J.---This Constitutional petition under Article 199, of the

Constitution of Islamic Republic of Pakistan has been filed by the petitioner with the
following prayers:--

"(a) That the action of the official respondents, whereby remissions have been granted
to the private respondents, is illegal, void, without lawful authority and of no legal effect.

(b) That the private respondents are not entitled to any, remissions under any
provision of law and the remissions given to them by the Jail Authorities may be declared
as of no legal effect.

(c) That the official respondents be directed to apprehend respondents Abdul Zahir
and Gul Baran and remanded them to jail custody for serving out the remaining sentence.

(d) The respondent No.4 be directed to serve entire sentence.

(e) That the Jail Authorities may be directed to exclude the remssions from the ticket
of the private respondent and they may be directed to serve the remaining sentence
imprisonment for life.

(f) Any other relief as may be deemed fit and proper in the circumstances of the case
may also be awarded."

2. Briefly stated, the facts of the case are that the petitioner lodged a report with Police
Station, Chaman under sections 302/324/148/149/365/511, P.P.C. read with section 17(3)
of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 on 7th May,
1994 at about 8-15 a.m. wherein; it was alleged that at 7-30 a.m., he left his house in his
vehicle alongwith his four brothers namely; Dawood Shah, Muhammad Raza, Ahmed
Shah and Ubaidullah towards College Colony to gee off Hajjis. At about 8-00 am., when
they reached Telephone Exchange, Abdul Ali, Muhammad Khan, Musa, Waris, Abdul
Hakeem, Zahir alongwith six other persons, whose names were not known to him,
however, he could recognize them, on seeing, signaled them to stop and on stopping,
Abdul Ali alongwith other companions tried to kidnap them by force and Abdul Ali, who
was holding a Kalashnikov and other companions were armed with pistols, started firing
at them, due to Which, Dawood Shah received injuries on his chest and died on the spot.
Muhammad Raza was injured, he succumbed to injuries in the hospital and Ahmed Shah
received injuries on his leg and accused persons while leaving the place after incident,
Page No. 2 of 13
took away the Land Cruiser of the petitioner. The motive stated for the occurrence was,
that last year deceased Dawood Shah had fought with Muhammad Shah, nephew of
Abdul Ali and had injured him. To take revenge of the said incident, the accused persons
attacked the complainant party on, the day of incident. It is stated that the accused
persons could not be arrested. Only Abdul Zahir, Gul Baran and Haji Allah Dad were
arrested and sent up to face their trial and on conclusion of the trial, Abdul Zahir and Gul
Baran were convicted and sentenced to suffer R.I. for fourteen years by the learned
Sessions Judge, Pishin, while Allah Dad was acquitted of the charge, vide judgment dated
22nd June, 1996.

It is stated that this Court on 24th April, 1997 upheld the judgment of the trial Court
while disposing of Criminal Revision No.38 of 1996 for enhancement of sentence of
Abdul Zahir and Gul Baran, Criminal Acquittal Appeal No. 161 of 1996 against acquittal
of Allah Dad, Criminal Appeal No. 131 of 1996 filed by Abdul Zahir and Gul Baran. It is
stated that the aforesaid parties filed criminal petitions for leave to appeal, before the
Hon'ble Supreme Court in which, leave was granted on 19th November, 1997. It is
maintained that during the pendency of the appeal before the Hon'ble Supreme Court,
accused/respondent Abdul Ali was arrested and challaned before the learned Sessions
Judge, Pishin, who was acquitted of the charge by the trial Court on 19th October, 1998.
This Court, however, reversed the judgment and convicted Abdul Ali under section
302(b), P.P.C. and sentenced to suffer R.I. for life, The benefit of section 382-B, Cr.P.C.,
was also extended to him vide judgment dated 5th October, 1999. It is stated that the
appeal filed by Abdul Zahir and Baran, came up for hearing before the Hon'ble Supreme
October, 1999 and the same were disposed of in the manner, whereby; the order of
acquittal of Haji Allah Dad was upheld whereas; the convictions of Abdul Zahir and Gul
Baran recorded by the trial Court under section 302(c), P.P,C. were set aside and they
were convicted under section 302(b), P.P.C. and sentenced them for life imprisonment.
The sentence of fine of Rs.1,00,000 was also maintained and in default whereof, they
have to further undergo for one year. The conviction under section 324, P.P.C. was
maintained and their sentences to seven years' rigorous imprisonment and a fine of
Rs.5,000 each and in default thereof, to further undergo six months' simple imprisonment.
It is stated that the benefit of section 382 B, Cr.P.C. was not extended in the judgment
reported in 2000 SCMR 406. It is stated that the Hon'ble Supreme Court dismissed the
appeal, which was filed by Abdul Ali and also criminal petition filed by the petitioner
regarding enhancement of sentence from life imprisonment to death, was dismissed. The
Hon'ble Supreme Court was, however, pleased to direct Abdul Ali to pay Rs.1,00,000 as
compensation in terms of section 544-A, Cr.P.C. to the legal heirs of 'Dawood Shah
deceased or to suffer in default R.I. for a period of six months. It is stated that Abdul
Zahir and Gul Baran have since been released from jail on or about 13th August, 2001 by
giving them remissions of 6753 days and 6700 days respectively as per their tickets.
Respondent Abdul Ali is stated to have earned remission of 5747 days as per his ticket
allowed by the Jail Authorities on the basis of relevant notifications. It is the case of the
petitioner that the private respondent have been convicted under section 302(b), P.P.C.
(Qisas and Diyat), therefore, the respondents Nos. 1 to 3 could not grant any remission
under the provisions of Article 45 of the Constitution, section 401, Cr.P.C. or under the
Prisons Rules without the consent of legal heirs of the deceased. It is also stated that even
otherwise, the notifications on the basis whereof, remissions have been granted to the
private respondents are unlawful being beyond the scope of such notifications. According
to petitioner, he has no other alternate efficacious and. speedy remedy available to him
except by filing this petition, which he has filed under Article 199 of the Constitution of
Islamic Republic of Pakistan. Parawise comments have been filed on behalf of
respondents Nos. 1, 2 and 3.

3. We have heard Messrs H. Shakeel Ahmed and Muhammad Ayaz Khan Sawati, learned
counsel for the petitioner and Messrs Ghulam Mustafa Mengal, learned Additional
Advocate-General and Zahid Malik, Advocate for official respondents, Shaikh Ghulam
Ahmed, Advocate for respondent No.4, while Mr, Muhammad Aslam Chishti, Advocate
for respondents Nos. 5 and 6.

4. The main contentions put forth on behalf of petitioners are as under:--

"(A) That the remissions granted to the respondents Nos. 4 to 6 are patently illegal, in
excess of authority and violation of law.
Page No. 3 of 13
(B) That in respect of cases, registered under Qisas and Diyat Ordinance, the
Government or any other authority does not enjoy any power to reduce the sentence in
any manner without the consent of the legal heirs of the deceased persons, therefore, the
remissions counted in favour of the accused person on the basis of various notifications,
are illegal, void and devoid of lawful authority and liable to be declared as of no legal
effect.

(C) That benefit of section 382-B, Cr.P.C. was not extended to Abdul Zahir and Gul
Baran by the Hon'ble Supreme Court while converting the sentence.

(D) That since the Courts have awarded life imprisonment to the accused persons,
therefore, as a necessary consequence, they have to be imprisoned for their lifetime and
no remissions or exemptions can be given to them in any manner whatsoever. The action
of the official respondents to grant remissions to the accused persons is contrary to the
spirit of law as well as Injunction of Islam, therefore, the impugned action being in
violation of law is liable to be declared as of no legal effect.

(E) That Jail Authorities by totally misinterpreting the various notifications have
counted remissions in their favour, which is not permissible under the law and even under
the said notifications, no remission can be granted.

(F) That a person, who hag been sentenced for life is not entitled to any remission.

(G) That the provisions of Cr.P.C. as well as Prisons Rules are un Constitutional
inasmuch as, it affects the rights of the legal heirs of the deceased persons, where a case
has been registered under Qisas and Diyat Ordinance, therefore, the notifications issued
by the official respondents from time to time are liable to be declared as o no legal effect.

(H) That the exercise of authority under Article 45 of the Constitution is not
unbridled, but would be subject to the rights of the legal heirs of the deceased persons.
Any remission granted in exercise of such authority would be subject to such rights and
the notifications on account of which any accused person is granted remission in Qisas
and Diyat matter is unlawful.

The remissions awarded to private respondents were prayed to be declared as illegal, void
and ab initio.

5. Leaned counsel for the respondents have contended that the President while exercising
his powers under Article 45 of the Constitution of Islamic Republic of Pakistan, 1973,
can grant remission in cases punishable by way of `Tazir', and the same could not be
made a subject matter of challenge in writ jurisdiction. It has been argued that the powers
of President Pakistan under Article 45 of the Constitution of the Islamic Republic of
Pakistan could not be questioned, because as Head of the State, he had been invested with
such powers and exercise thereof could not be questioned in any manner whatsoever.

6. There is no cavil with the proposition that the President in exercise of his powers under
Article 45 of the Islamic Republic of Pakistan can grant remissions or pardon to any
prisoner, who has been convicted and sentenced under any offence contained in general
law or in special law. The said Article of the Constitution overrides the provisions of
Pakistan Penal Code or the Code of Criminal Procedure. The Hon'ble Supreme Court in
the case of Hakim Khan and 3 others v. Government or Pakistan and others PLD 1992 SC
593, has held that Article 2A was not a supra-Constitutional measure. The scope of the
powers of President under Article 45 of the Constitution has also been discussed in case
titled Eid Muhammad and another v. The State PLD 1992 SC 14.

7. A Full Bench of this Court in a case reported in 1999 YLR 1596, relying on the
aforesaid authority has also held that the scope and powers of the President under Article
45 of the Constitution, is discretionary in view of the provisions as contained under
Article 48(2) of the Constitution and no embargo whatsoever, has been imposed on it. It
was further held that exercise of such discretion cannot be assailed before any forum
including a Court of law. Reference was made to the authority reported in 1979 SCMR
302. In the aforesaid case, Full Bench of this Court also held I that the remissions granted
Page No. 4 of 13
under Article 45 of the Constitution can neither be curtailed or effected by Prisons Rules
read with Remission Rules, 1965.

8. Learned counsel for the private respondents Nos. 5 and 6 has raised a preliminary
objection that this petition is not competent as the same has not been filed by the legal
heirs and petitioner Haji Bismillah is not an aggrieved person. Reliance has been placed
on the authority reported in 1999 PCr.LJ 1507 (Quetta). We see no force in the contention
and the authority relied upon is not helpful to him, as in the instant case even the
Criminal Acquittal Appeal No.320 of 1998 filed by Haji Bismillah, and the acquittal
order in respect of respondent Abdul Ali was set aside by this Court and the said
respondent was convicted under section 302(b), P.P.C. The objection is accordingly
overruled.

9. The questions, as to whether respondents were or were not entitled for the remission
granted by the Inspector-General and Superintendent Jail for their good conduct, donation
of blood, education, observing regular prayers Ramazan, protecting a prison officer,
special assistance etc. in the absence of any material and amendments in the rules, being
question of fact, could not be examined by the High Court in its Constitutional
jurisdiction. Even otherwise, these jail remissions granted by the jail authorities other
than the notification, hereinbelow mentioned, were neither seriously pressed, nor material
brought on record, nor the same can be made subject-matter of the writ petition. The
concerned authorities are, however, required to suitably amend the relevant provisions of
the Prisons Rules in respect of prisoners, convicted under Chapter XVI of Pakistan Penal
Code.

10. As far the objection of learned counsel for the petitioner that the Jail Authorities by
misinterpreting the various notifications, have counted remissions in favour of
respondents, which were not permissible and even under the said notification, no
remissions can be granted, is not without substance.

11. Respondents Abdul Zahir and Gul Baran are stated to have been arrested' on 24th
November, 1994 and 7th May, 1994, respectively. Both of them were convicted on 3rd
June, 1996 under section 302(c), P.P.C. and sentenced to suffer R.I. for fourteen years
each with fine of Rs.1,00,000 each, they wire also convicted under section 324, P.P.C. and
sentenced to suffer R.I. for seven years each with fine amounting to Rs.50,000 each The
Hon'ble Supreme Court on 15th October, 1999, set aside the convictions and sentences
awarded to respondents and convicted them under section 302(b), P.P.C. and sentenced to
imprisonment for life. The sentence of fine was, however, maintained, the convictions
and sentences of fine under section 324, P.P.C. were also maintained.

The details of remissions awarded to the prisoners/respondents on different occasions

through notifications are as under:--

Remissions awarded to respondents Abdul Zahir and Gul Baran

S.No
DATE
DAYS
AUTHORITY
UNDER
REMARKS

01
1-3-1995
60
Government of Balochistan (Eid ul-Fitr)
216, PPR
(i) Awarded without lawful authority.

(ii) Not admissible as U.T.P.

02
15-2-1996
Page No. 5 of 13
30
Government of Balochistan (Eid-ul-Fitr)
216, PPR
(i) Awarded without lawful authority.

(ii) Wrongly extended to prisoner, convicted under Chapter 16, P.P.C.

03
20-2-1996
90
President of Pakistan (Eid-ul-Fitr)
Article 45 of Constitution
wrongly extended to U.T.P.

04
15-8-1996
90
Government of Pakistan Ministry of Interior

Not clear as to whether under section 401, Cr.P.C. or otherwise?

05
20-8-1996
30
Government of Balochistan (Independence day).
216, PPR
Awarded without lawful authority

06
6-2-1997
30
Government of Balochistan (Eid-ul-Fitr)
216, PPR
Awarded without lawful authority

07
24-2-1997
30
Government of Balochistan (Installation of New Provincial Government)
401,

Cr.P.C
Wrongly extended to prisoner, convicted under Chapter XVI, P.P.C.

08
15-4-1997
15
Government of Balochistan (Eid-ul-Azha)
216, PPR
Awarded without lawful authority.

09
30-5-1997
15
Government of Balochistan
216, PPR
Awarded without lawful authority.

10
14-8-1997
1/5th of whole sentence
President of Pakistan (Golden Jubilee, (Independence day)
Article 45 of Constitution
Page No. 6 of 13
11
4-2-1998.
90
President of Pakistan (Eid-ul-Fitr)
Article 45 of Constitution

12
23-3-1998
60
President of Pakistan (Pakistan Day)
Article 45 of Constitution

13
6-1-1999
30
Government of Balochistan
401, Cr.P.C.
Wrongly extended to convict prisoners under Chapter XVI, P.P.C.

14
16-1-1999
360 days for lifer and 180 for others
President of Pakistan (Eid-ul-Fitr)
Article 45 of the Constitution

15
1-4-1999
360 days for lifer and 180 for others
President of Pakistan (Eid-ul-Azha)
Article 45 of the Constitution

16
29-5-1999
180 for lifer and 90 for others
President of Pakistan (Yaume-Takbir)
Article 45 of the Constitution

17
5-1-2000
60
Government of Balochistan
401, Cr.P.C.
Wrongly extended to convict prisoner under Chapter XVI, P.P.C.

18
6-1-2000
360 days for lifer and 180 for others
President of Pakistan (Eid-ul-Fitr)
Article 45 Of the Constitution
Jail Authorities wrongly extended remission of Federal Government under Rule 216 for
60 days to prisoners under Chapter 16.

19
15-3-2000
360 days for lifer and 180 for others
President of Pakistan (Eid-ul-Azha)
Article 45

Of the Constitution

20
24-6-2000
Page No. 7 of 13
180 for lifer and 90 for others
President of Pakistan (Eid-e-Milad-un-Nabi)
President of Pakistan (Eid-e-Milad-un-Nabi)

Constitution

21
14-8-2000
360 days for lifer and 180 for others
President of Pakistan (Independence Day)
Article 45 of the Constitution

22
24-12-2000
360 days for lifer and 180 for others
President of Pakistan (Eid-ul-Fitr)
Article 45 of the Constitution

23
3-3-2001
360 days for lifer and 180 for others
President of Pakistan (Eid-ul-Azha)
Article 45 of the Constitution

24
2-6-2001
360 days for lifer and 180 for others

Article 45 of the Constitution

Remissions awarded to respondent Abdul Ali

S.No
DATE
DAYS
AUTORITY
UNDER
REMARKS

01
14-8-1997
1/5th of whole sentence
President of Pakistan (Golden Jubilee, Independence Day)
Article 45 of Constitution
Not admissible as U.T.P.

02
4-2-1998
90
President of Pakistan (Eid-ul-Fitr)
Article 45 of Constitution
Not admissible as U.T.P.

03
23-3-1998
60
President of Pakistan (Pakistan Day)
Article 45 of the Constitution
Not admissible as U.T.P.

04
16-1-1999
30
Page No. 8 of 13
Government of Balochistan
401, Cr.P.C.
Wrongly extended to convict -prisoners under Chapter XVI, P.P.C.

05
16-1-1999
360 days for lifer and 180 for others
President of Pakistan (Eid-ul-Fitr)
Article 45 of the

Constitution
Not admissible as U.T.P.

06
1-4-1999
360 days for lifer
President of

Pakistan (Eid-ul-Azha)
Article 45 of the and 180 for others
Not admissible as U.T.P.

07
29-5-1999
180 for lifer and 90 for others
President of Pakistan (Yaum-e-Takbir)
Article 45 of the Constitution
Not admissible as U.T.P.

08
5-1-2000
60
Government of Balochistan
401, Cr.P.C
Wrongly extended to convict prisoners under Chapter XVI P.P.C

09
6-1-2000
360 days for lifer
President of Pakistan (Eid ul Fitr)
Article 45 of the Constitution
The Jail Authorities wrongly extended remission of Federal Government under Rule 216
for 60 days to prisoner under Chapter 16

10
15-3-2000
360 days for lifer and 180 for others
President of Pakistan (Eid ul Azha)
Article 45 of Constitution

11
24-6-2000
180 days for lifer and 90 for others
President of Pakistan (Eid-e-Milad-un-Nabi)
Article 45 of Constitution

12
14-8-2000
360 days for lifer and 180 for others
President of Pakistan (Independence day)
Article 45 of Constitution

13
Page No. 9 of 13
24-12-2000
360 days for lifer and 180 for others
President of Pakistan (Eid-ul-Fitr)
Article 45 of Constitution

14
3-3-2001
360 days for lifer and 180 for others
President of Pakistan (Eid-ul-Azha)
Article 45 of Constitution

15
2-6-2001
360 days for lifer and 180 for others
President of Pakistan (Eid-e-Milad-un-Nabi)
Article 45 of Constitution

12. Respondent Abdul Ali son of Muhammad Ramazan is stated to have been arrested on
24th July, 1997, he was tried by the learned Sessions Judge, Pishin and after conclusion
of the trial, he was acquitted of the charge on 19th October, 1998. This Court has,
however, by accepting the appeals, which were filed against his acquittal, convicted him
under section 302(b), P.P.C. and sentenced to suffer R.I. for life, vide judgment dated 5th
October, 1999. The benefit of section 382-B, Cr.P.C. was also extended to him. The
appeal, which was filed by respondent against his conviction, was dismissed by the
Hon'ble Supreme Court. The Hon'ble Supreme Court also directed the respondent Abdul
Ali to pay Rs.1,00,000, as compensation to the legal heirs of deceased or to suffer in
default, six months' R.I.

13. In view of 'above position, the remissions granted through notifications issued on
14th August, 1997, 4th February, 1998, 23rd March, 1998, 16th January, 1999, 1st April,
1999, 29th May, 1999, were not admissible to respondent, as he was not convicted and
undergoing sentence on the days, when the notifications were issued. As stated above, the
respondent was convicted on 5th October, 1999, therefore, the benefit of notifications
cannot be extended to him by way of reduction from his term of imprisonment. The
sentence is always preceded by conviction.

14. We also concur with the views, expressed in the authority relied upon by the learned
counsel for the petitioner and reported in 2001 PCr.LJ 1453 (Lahore), relevant portion of
which is reproduced below, for the sake of facility:--

"8 . ... ..The universal rule in construing is that the grammatical and ordinary sense of the
words is to be adhered to unless that would lead to some absurdity, or some repugnancy
or inconsistency with the rest of the enactment. Where the meaning of an enactment is
clear, to apply that meaning is to give it a literal construction. If the language of a
provision is clear and unambiguous, it should be accepted as such without hesitation or
demur. Words themselves alone in such a case best declare intention of the Legislature.
Importing any remissions granted, by any authority competent under the law to do so, to
the provisions of section 382-B, Cr.P.C. would be doing violence to the said provisions.
Permission granted by the President derives its origin under Article 45 of the Constitution
whereas counting the period of detention before conviction is contained in section 382-B,
Cr.P.C. There is no clash whatsoever between two provisions of law, each are
independent provisions, conferring powers on independent authority to grant benefit to
convicts in the matter of their sentences, therefore, the argument that since the substantive
sentence commenced from the date of arrest as such benefit of the remission through the
Notification dated 28-8-1997 be extended to respondents Nos.1 and 2, is devoid of force,
as provision of section 382-B, Cr.P.C. only comes into being once conviction takes place
followed by sentence to be awarded. Same discussion applies to the remission of three
months granted by the President vide Notification, dated 14-8-1996.

9. As regards the remission granted by the Provincial Government on 28-4-1996 for two
months and again on 27-2-1997 for two months, this is clearly violative of the provisions
of sections 54 and 55 of the Pakistan Penal Code and sections 410. 402, 402-A and 402-B
of the Code of Criminal Procedure alongwith relevant parts of its Schedule and have to
Page No. 10 of 13
be struck down being repugnant to the amendments made in the referred to provisions of
law on 13-8-1990. Reference is made to the case of Muhammad Ameer and another
(supra).

15. Similarly, the benefit of remissi6ns extended to respondents Abdul Zahir and Gul
Baran through notifications issued during the period they remained as under trial
prisoner, were also not admissible, as they E were not convicted persons and undergoing
sentences. Even otherwise, they were convicted for imprisonment for life by the Hon'ble
Supreme Court. The benefit of notification issued on 1st March 1995, 15th February,
1996 and 20th February, 1996 cannot be extended to them by way of reduction from their
terms of imprisonments for the reasons hereinabove mentioned. There is, however,
nothing in the judgment, which can indicate that the benefit as section 382-B, Cr.P.C. has
beers declined.

16. The sentences of convicts, who were convicted under Chapter XVI of the Pakistan
Penal Code could not be remitted under the orders of Provincial and Federal Government,
issued either under Rule 216 of Prisons Rules or 401, Criminal Procedure Code on
occasions of public rejoicing. Certain notifications had been issued by Provincial
Government under Rule 216 of Prisons Rules on the occasions of Eid etc. without lawful
authority and against the relevant provisions of Prisons Rules. According to Rule 218,
special remission is awarded by the Government on occasion of public rejoicing. It is
granted unconditionally under section 401 of the Criminal Procedure Code and has not
covered by these Rules. The amendments brought about in Chapter XVI, section 55 of
Pakistan Penal Code and section 402-C, Cr.P.C put a bar regarding grant of remission
without the consent of victim or as the case may be of his heirs. The amendments had
been brought about through Ordinances and thereafter, through Criminal Law
(Amendment) Act, 1997, which Act received the assent of the President on 10th April,
1997.

17. According to section 55, in every case, in which sentence of imprisonment for life
shall have been passed, the Provincial Government of the Province within which,
offender shall have been sentenced, may, without the consent of the offender, commute
the punishment for imprisonment of either description for a term not exceeding fourteen
years. According to proviso added to the said section in a case, which sentence of
imprisonment for life shall have been passed against an offender, convicted for an offence
punishable under Chapter XVI, such punishment shall not be commuted without the
consent of the victim, or, as the case may be, of his heirs. According to section, 57 P.P.C.,
in calculating fractions of terms of punishment imprisonment for life shall be reckoned as
equivalent to imprisonment for twenty-five years.

18. According to Rule 198(b) of Prisons Rules, life means a prisoner sentenced to
imprisonment for life, such sentence means twenty-five years' rigorous imprisonment.
According to Rule 217 (i), total remissions, both ordinary and special awarded to a
prisoner under this rule (other than remission for donating blood, awarded under Rule
212, surgical sterilization under Rule 213 arid for passing examination Rule 215, shall not
exceed 1/3rd of his sentence. According to sub-rule (ii). remissions, both ordinary and
special, earned by a lifer shall be so much that a sentence of imprisonment for life is not
shortened to a period of imprisonment, less than fifteen years.

19. As discussed above, remissions granted under Article 45 of the Constitution, can
neither be curtailed or effected by Prisons Rules.

20. Section 402-C, Cr.P.C., also bars remission or commutation of any sentence passed
under any of the sections under Chapter XVI of the Pakistan Penal Code, without the
consent of the victim or, as the case may be, of his heirs.

21. A Division Bench of this Court in 1998 PCr.LJ 921 has held that the Provincial
Government has no authority to exercise its powers under section 401, Cr.P.C. in view of
section 402-C, Cr.P.C. Relevant paras. of the said authority are reproduced hereinbelow:

"6. A bare perusal would reveal that the provisions as contained in section 401, Cr.P.C,
repugnant to Injunction of Islam cannot be exercised by the Provincial Government We
have not been able to persuade with the main contention of Syed Ayaz Zahoor, Advocate
Page No. 11 of 13
that the date of commission of offence is 13-1-1990 while the Islamic Laws i.e. Qisas and
Diyat Ordinance came into being on 13th August, 1990, hence it could not be applied
retrospectively for the reasons that crucial date would be the promulgation of Qisas and
Diyat Ordinance which admittedly is 13th August, 1990 and thereafter, the Provincial
Government had no authority to exercise its power under section 401, Cr.P.C. In this
regard if any reference is required section 402-C, Cr.P.C., could be referred which runs as
follows:---

"402-C. Remission or commutation of certain sentences not to be Without Constitution

----Notwithstanding anything contained in section 401, section 402, or section 402-A, the
Provincial Government or the President shall not, without the consent of the victim or as
the case may be, of his heirs, suspend, remit or commute any sentence passed under any
of the sections of the Pakistan Penal Code hereinafter specified that is to say, 302, 30.3,
304, 304-A, 305, 306, 307, 308, 323, 324, 325, 326, 327, 328, 329, 330, 331, 332, 333,
334, 335, 33.7 and 338."

7. It is prominent feature of the case that on 13-8-1990 the Provincial Government

had absolutely no- powers to exercise in view of the provisions as enshrined in new
inserted section of 402, Cr.P.C. It reflects from scrutiny of record that the complainant
was never consulted before granting remission and as such, the said remission by no
stretch of imagination can be termed as valid or lawful. Certainly on 26-5-1997
Provincial Government could not have exercised such powers. We would like to refer the
dictum of Honorable Federal Shariat Court in case titled Habib-ul-Wahab Alkhairi and
others v. Federation of Pakistan reported in PLD 1991 FSC 236 wherein it was observed
as follows:--

"The above said Provisions of sections 401, 402, 402-A, 402-B, 494 and 495, Cr.P.C and
section 10(4) of Pakistan Criminal Law Amendment Act, 1958 unless amended or altered
so as to bring them in conformity with the Injunctions of Islam as laid down in the Holy
Qur'an and Sunnah as discussed above, shall be void and cases to be effective as on 1st of
January, 1992.

8. In our view the valuable rights of the parties neither can be curtailed nor
infringed, on flimsy grounds. No order could have been passed adversely affecting
complainant and that too without proper opportunity of hearing. It has not been
considered by the Provincial Government that conviction was awarded by learned
Sessions Judge and upheld by this Court and Honourable Supreme Court refused to grant
Leave to Appeal. In such-like cases the mechanical exercise without proper appreciation
of factual and legal position is not desirable. In such view of the matter, the order, dated
26-5-1997 passed by Government of Balochistan Home and Tribal Affairs Department
granting remission of 11 months and 3 days in favour of convict Abdul Qadir (respondent
No. 1) is hereby set aside. The convict Abdul Qadir be taken into custody and sent to
Central Jail, Machh for completion of un expired period of sentence awarded by learned
Sessions Judge, Quetta, vide order, dated 11-3-1994. The petition is accordingly
accepted"

22. Keeping in view the aforesaid legal position, it can, be conducted firstly; that the
benefit of notifications enumerated at paras. Nos.13 and 15, shall not be extended to the
respondents, who were convicted on 23rd June, 1996 and 5th October, 1999 respectively
under Chapter XVI of the Pakistan Penal Code, secondly; the issuance of notifications
under Rule-216 of the Pakistan Prisons Rules on the eve of Eid etc. were without lawful
authority and the sentences of the respondents, who were convicted under Chapter XVI
of the Pakistan Penal Code should not have been remitted on the basis of these
notifications, therefore, those are declared to be without jurisdiction and of no legal
effect, and thirdly; the grant of remissions to the respondents, who were convicted under
Chapter XVI of Pakistan Penal Code, by the Government under section 401, Cr.P.C.
without the consent of victim or, legal heirs of deceased are declared to be contrary to law
and without lawful authority.

23. The Constitutional petition stands disposed of, in the above terms with no order as to
costs.

N.H.Q./192/Q Petition accepted.

Page No. 12 of 13
2004 P Cr. L J 1194

[Peshawar]

Before Shah Jehan Khan and Ijaz-ul-Hassan Khan, JJ

AKBAR KHAN---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeal No. 111 of 2003, decided on 1st April, 2004.

(a) Control of Narcotic Substances Act (XXV of 1997)---

----S.9---Appreciation of evidence---Chemical Examiner's report was in positive---

Recovery of Charas from the accused had been proved by the S.H.O. and a police
constable who had no enmity or malice against him for his false implication and had fully
supported the prosecution case--Presence of the accused at the spot was not denied---
Defence plea was not impressive---Section 103, Cr.P.C. being not applicable to the
provisions under the Control of Narcotic Substances Act, 1997, noncompliance thereof
had not made the trial of accused bad in the eye of law---Discrepancies pointed' out it
prosecution evidence were insignificant--Functioning of the Investigating Officer as the
complainant and as a witness in the case had not cast any doubt on the prosecution case---
Conviction and sentence of accused were upheld in circumstances.

Abdul Waheed v. The State 1999 PCr.LJ 1595; Budho Malghani v. The State 2002 MLD
1293; Muhammad Khan v. The State 1994 SCMR 1543; Buner Gul v. The State 1999
PCr.LJ 728; Fida Jan v. The State 2001 SCMR 36 and State through Advocate-General
Sindh v. Bashir and others PLD 1997 SC 408 ref.

(b) Interpretation of statutes---

----Special and general law---When in an enactment a special procedure has been laid
down and a special provision has been made on a particular subject, then general
provision does not apply to the subject.

(c) Control of Narcotic Substances Act (XXV of 1997)---

----S. 9---Appreciation of evidence---Recovery---Police witnesses--Principle---Official

witnesses are as good as private witnesses---Police officials are competent witnesses to
attest a recovery memo and their testimony cannot be discarded on the ground that they
belong to police Department.

Fida Jan v. The State 2001 SCMR 36 ref.

Khawaja Nawaz Khan for Appellant.

Muhammad Sharif Chaudhry, D.A.-G. for the State.

Date of hearing: 1st April, 2004.

JUDGMENT

IJAZ-UL-HASSAN KHAN, J.---The appellant namely Akbar Khan through instant

Criminal Appeal No. III of 2003 has challenged judgment, dated 25-10-2003 passed by
learned Additional Sessions Judge-III, Bannu whereby he was convicted under section 9
of the Control of Narcotic Substances Act, 1997 and sentenced to suffer five years' R.I.
and fine of Rs.20,000 or in default of payment of fine, to undergo further six months' S.I.
Benefit of section 382-B, Cr.P.C. was also extended to the appellant.

Page No. 1 of 1
2. Shortly narrated facts of the case are that on 4-10-2002 at 11-00 hours Nazif Shah,
S.H.O., Police Station, Saddar alongwith police party was on routine `Gasht'. When he
reached General Bus Stand, he found a person carrying 5 buckets (Balties). The bottoms
of the buckets were found heavy. On opening, Charas weighing 1100, 1200, 900, 1250
and 1300 grams respectively total weighing 5750 grams was recovered from the bottoms
of the buckets. Four grams from each bucket were separated for chemical analysis while
the remaining quantity was sealed into parcel. On asking, .the accused disclosed his name
as Akbar Khan son of Pir Ghulam Caste Awan, resident of Kotka Mustajab Dakhli Sokari
Karim Khan, District Bannu. Accused was arrested. Murasila (Exh.P.W.2/1) was drafted
by complainant Nazif Shah, S.H.O. under section 9 of the Control of Narcotics
Substances Act, 1997 which was sent to police station for registration of the case where
its contents were correctly incorporated into F.I.R. by Murad Ali A.S.H.O. (P.W.1).

3. The appellant was charged under section 9 of the Control of Narcotic Substances Act,
1997 to which he pleaded not guilty and claimed trial. The prosecution in order to prove
its case against the appellant, examined three witnesses in all. Appellant was examined
under section 342, Cr.P.C. wherein he denied the prosecution allegations and professed
innocence. He neither appeared as his own witness on oath as required under section
340(2), Cr.P.C. nor produced defence.

4. Upon consideration of the material available on file, the learned trial Court convicted
and sentenced the appellant as mentioned above.

5. Mr. Khawaja Nawaz Khan, Advocate for the appellant submitted that the recovery was
made in a clandestine manner and it had also not been witnessed by any independent
person; that the complainant of the case has combined in himself the functions of
complainant, Investigating Officer and a witness which makes the case of prosecution
doubtful and that the learned trial Court has not appreciated and evaluated the
prosecution evidence in its true perspective and committed an error while passing the
order of conviction and that the prosecution evidence is vague and self-contradictory
which cannot be relied upon. He placed reliance on Abdul Waheed v. The State 1999
PCr.LJ 1595 and Budho Malghani v. The State 2002 MLD 1293.

6. On the contrary, Muhammad Sharif Chaudhary, learned Deputy Advocate-General for

the State controverted the arguments raised by learned counsel for the appellant,
maintaining that the appeal is liable to be dismissed because the conviction was based on
solid evidence; that the prosecution has proved its case beyond any shadow of doubt and
the minor discrepancies appearing in the prosecution evidence do not damage the case of
prosecution on its material points. To substantiate the pleas, he relied on Muhammad
Khan v. The State 1994 SCMR 1543.

7. We have heard at length the arguments of learned counsel for the parties in the light of
available record.

8. The case of the prosecution is that on 4-12-2002 complainant Nazif Shah was on
routine `Gasht' when he apprehended accused Akbar Khan roaming in suspicious
condition at General Bus Stand, Bannu. The accused was carrying five steel buckets tied
with each other. The bottoms of the buckets were found heavy. On opening the bottoms
of the buckets, Charas weighing 5750 grams was recovered. Memo. to this effect was
prepared at the spot., A small quantity of Charas was separated out of the bulk and sent to
Chemical Examiner, F.S.L. Peshawar for analysis. The report of the Chemical Examiner
(Exh.P.W.2/5) is in positive. To prove the factum of recovery, the prosecution has
produced two witnesses namely Nazif Shah S.H.O. (P.W.2) and Karim Khan constable
(P.W.3). They have fully supported the prosecution case. They were subjected to lengthy
and searching cross-examination but nothing material could be elicited to shake their
credibility. The presence of the appellant at the spot has not been denied. Stance of the
appellant is that he had no hand in the offence and that the Charas was planted. The
submission of the appellant has not impressed us. Police has no enmity, motive or any
other malice against use appellant to have falsely implicated him in the present case. The
appellant was examined under section 342, Cr.P.C. could not explain as to why the
complainant Nazif Shah S.H.O. and Karim Khan constable deposed against him. Mere
assertion that it was a false case and he was involved due to enmity, does not in any

Page No. 2 of 1
manner explain or absolve the appellant at least from pointing out the reason or
circumstance due to which he was implicated.

9. The submission that compliance of the provisions of section 103, Cr.P.C. was not made
in the case as no two respectable persons of the locality were associated, has no force
firstly for the reason that provision of section 103, Cr.P.C. has been excluded under the
provision of section 25 of the Control of Narcotic Substances Act, 1997 and the
provisions of section 20 of the Act are directory in nature; therefore, its non-compliance
cannot be considered as a strong ground for holding that the, trial of the appellant is bad
in the eye of law as held in Buner Gul v. They State 1999 PCr.LJ 728.

10. It is a settled principle of the construction of statutes that when in an enactment a

special procedure has been laid down and a special provision has been made on a
particular subject then a general provision does not apply to the subject.

11. It needs no reiteration that the main aim and object of enacting of section 103, Cr.P.C.
is to ensure that the search and recovery was conducted honestly and fairly and to
exclude any possibility of concoction and transgression. It never meant to disbelieve the
statements of official witnesses in any other circumstance. Testimony of a police official
cannot be discarded only on the ground that he is a police official. Official witnesses are
as good as private witnesses. In this context, there is a wealth of case-law on the point
that police officials are competent witnesses to attest a recovery memo. There is
consistent opinion, of the superior Courts that police officials are competent witnesses of
recovery memo. and thus, contention of the learned counsel would not cut much ice to
absolve the appellant from the circumstance of recovery of Charas from his possession.
Fida Jan v. the State 2001 SCMR 36.

12. The argument of learned counsel for the appellant regarding various hats
simultaneously worn by the Investigating Officer has also failed to impress us. In State
through Advocate-General, Sindh v. Bashir and others PLD 1997, SC 408 it was held,

"There is no legal prohibition for a Police Officer to be a complainant if he is a witness to

the commission of an offence and also to be an Investigating Officer so long as it does
not, in any way, prejudice the accused person. The Court will have to appraise the
evidence produced by the prosecution as a whole and will have to form the opinion after
evaluating the same."

13. It was also contended by learned counsel for the appellant that on material particulars,
prosecution evidence is inconsistent, contradictory and doubtful, therefore, the same even
in absence of defence evidence cannot result into conviction of appellant. This
submission is also without force. The discrepancies pointed out by the learned counsel
are of no significance. Anyhow, they do not go to the root of the case.

14. So far as the cases cited by learned counsel for the appellant are concerned, each
criminal case stands on its own footings. The facts and circumstances in one case may not
be quite similar on all fours to the other. There may be circumstances so as to give benefit
of doubt to the accused. But in the instant case, we are fully, satisfied that the prosecution
has been successful in. proving its case against the appellant and no exception can be
taken to the judgment of the trial Court.

15 Resultantly, the appeal being meritless is dismissed. Conviction and sentences

recorded by the trial Court are maintained. The appellant shad be entitled to benefit of
section 382-B, Cr.P.C.

16. We had, by our short order dated 1-4-2004, dismissed the appeal and maintained the
conviction and sentence of the appellant for reasons to be recorded later. Above are the
detailed reasons.

N.H.Q./91/P Appeal dismissed.

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