Basheer etc vs Muhammad Iltaf Khan

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

PESHAWAR

(Judicial Department)

Cr.R. 66-P of 2015 with Cr. Misc. No.189-P/2016.

Date of hearing: 20.04.2016

Petitioners (Basheer etc) by Mr. Ghulam Mohy-ud- Din Malik, advocate.

Respondent No.1 (Muhammad Iltaf Khan) by Mr.Muhammad Tariq Khan Hoti, advocate.

State by Mr. Muhammad Rahim Shah, A.A.G

JUDGMENT

MUSARRAT HILALI, J.- Impugned herein is the order recorded by learned Additional Sessions Judge-VIII, Mardan dated 18.5.2015, whereby he took cognizance of the complaint filed by respondent No.1 u/s 500 PPC and processed the same for trial on merits.

2.Background of the case is that respondent No.1 filed a complaint against the petitioners u/s 500 PPC before the Sessions Court with a prayer for prosecution and trial of petitioners. It is stated in the complaint that some days ago due to altercation

among the petitioners with his brothers-in-law on the matrimonial issue of their married sister, occurred in their house, the father of petitioners being old man died due to heart attack because of shock. The petitioners registered FIR No.74 dated 26.2.2015 u/s 302/34 PPC at Police Station Par Hoti, Mardan against their said brothers-in-law. Petitioners addressed a written complaint to the Commandant Station Headquarter, Risalpur etc with the allegation that respondent No.1 had harboured the aforesaid accused in his quarter at Risalpur. The Commandant inquired into the matter, summoned respondent No.1 and also involved the concerned military and other departmental authorities but ultimately the same was found to be baseless and unfounded, therefore, petitioners were liable to be prosecuted and tried as per law.

Petitioners were put on notice and after hearing the parties, the learned Additional Sessions Judge-VIII, Mardan vide order dated 18.5.2015 took cognizance of the complaint and thereby turned down the preliminary objection raised qua procedure Sadiq Shah PS

and jurisdiction and processed the same for trial to be decided on merits, hence this petition.

3.Learned counsel for petitioners contended that the defamation complaint filed in the court of learned Sessions Judge bypassing the mandatory provision of Criminal Procedure Code is not maintainable.

Referring to Section 193 Cr.P.C., learned counsel contended that as far as the Sessions Court is concerned, it cannot ordinarily take cognizance of an offence mentioned in Chapter XXI of Pakistan Penal Code as a court of original jurisdiction unless the same is sent to it by a Magistrate duly empowered in this regard. Learned counsel added that Section 193 Cr.P.C. imposes embargo upon the Sessions Court to take cognizance of an offence relating to Chapter XXI of Pakistan Penal Code. He argued that under the amendment made in Section 502-A Cr.P.C., the learned Sessions Judge would have exclusive jurisdiction to try the offence under Chapter XXI of PPC but the cognizance is still to be taken by the Magistrate for preliminary inquiry of the complaint.

He added that the impugned order is one without jurisdiction and vitiated by manifest error of law Sadiq Shah PS

warranting interference of this court. In support of his contentions, the learned counsel placed reliance on case law reported as “Awal Khan Vs. The Superintendent of Police Attock and others (1989 P.Cr.L.J. 909), Anwar Ali Khan and others Vs.

Wahid Bux and others (1991 SCMR 1608), Roshan Ali Vs. Amir Bux and others (PLD 2002 Karachi

4.Per contra, learned counsel for respondent No.1 vehemently opposed the instant petition and contended that after the amendment in Section 502-A PPC, the Session Court has the exclusive jurisdiction to try the offences under Chapter XXI of the Code;

that with the amendment the offences under Chapter XXI of PPC have acquired the status of special law, therefore. the provision of Criminal Procedure Code are not applicable to the offences under the said Chapter, that the non obstante clause mentioned in the amended Section shall be interpreted according to the statutory principles laid down by the august Supreme Court in cases reported in 2006 SCMR 562 and 1993 SCMR 941. He, thus, prayed for dismissal of revision petition with costs being meritless. In Sadiq Shah PS

support of his contentions, the learned counsel placed reliance on judgments reported in PLD 2010 Karachi

328, 2002 MLD 209, 2006 SCMR 562, 2009

P.Cr.L.J. 405, 2012 P.Cr.L.J. 1560, PLD 2010 Lahore 300 and 1993 SCMR 941.

5.Learned A.A.G supported the arguments of learned counsel for the petitioners.

6.Arguments heard, record of the case alongwith the judgments referred by counsel for the parties have been gone through.

7.The only question which arises for consideration is as to whether under Section 502-A of Pakistan Penal Code, the learned Sessions Judge was empowered to take cognizance of the complaint under Section 500 P.P.C ?

8.The criminal law consists of two branches known as Substantive Law and Procedural Law. The Substantive law defines offences and punishment to be given while the procedural law provides mechanism for the enforcement of substantive laws.

Chapter XXI of Pakistan Penal Code deals with defamation cases.

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9.Defamation is defined in Section 499 of PPC and is made punishable under Section 500 thereof.

The procedure for enforcement of the offences under Chapter XXI of PPC has been given in the Code of Criminal Procedure.

10.Under Section 190 of the Code any District Magistrate or Sub-Divisional Magistrate or any other Magistrate specifically empowered in this behalf may take cognizance of any offence;

(a)Upon a complaint

(b)Upon Police report

(c)Upon information received by himself.

Under subsection (2) of the said Section, the Provincial Government may empower any Magistrate to take cognizance under subsection (i) clause (a) or clause (b) of the offences for which he may try or send to the Court of Sessions for trial.

This was pre amendment legal position.

11.In 2004 by virtue of an amendment, Section 502-A was inserted in Pakistan Penal Code which reads as follow:

502-A. Trial of offence under this Chapter. Notwithstanding anything

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contained in the Code of Criminal Procedure, 1898 (Act-V of 1898), the Court of Sessions shall have the jurisdiction to try an offence under this Chapter and decided within a period of 90 days.

12.Learned counsel for the respondent No.1 was of the view that the very purpose of non obstante clause incorporated in Section 502-A PPC is to cloth the Sessions Court with the authority to take cognizance of an offence under this Chapter without the aid of the provisions of Criminal Procedure Code.

I am afraid this contention of the counsel for the respondent is not well founded. The non obstante clause, as mentioned in Section 502-A PPC has been incorporated in the Section only to the extent of “trial” of a case and not its cognizance. The power to take cognizance of an offence may not be confused with the power to try a case as taking cognizance and commencement of trial are two different terms of criminal jurisdiction. Cognizance in its broad and literal sense means taking notice of, becoming aware of or getting the knowledge of an offence. It is a basic step taken in a criminal case at a very initial Sadiq Shah PS

stage. In case titled “Khush Bakht-ur-Rehman and another Vs The State” reported in (1985 SCMR 1314), the august Supreme Court defined the term cognizance in the following words.

“Cognizance is a term of art implying application of mind to the facts of the case in order to determine whether facts disclosed constituted an offence triable exclusively by the Court of Sessions in which case Magistrate is bound to send case of Court of Sessions for trial”.

13.Similarly, trial means determination of issues judging the guilt or innocence of a person. The trial in criminal cases commences only when charge is framed. In case titled “Haqnawaz Vs State” reported in 2000 SCMR (785) while discussing the provisions of the Code of Criminal Procedure which is the subject matter of the petition in hand, it was held in the following manner:-

“From the review of the above provisions of the Code, it is quite clear to us that taking of cognizance of a case by a Court is not synonymous with the commencement

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of the trial in a case. Taking of cognizance of a case by the Court is the first step, which may or may not culminate into the trial of the accused.”

In the above quoted judgment, their lordships were of the view that trial commences on framing of charge against the accused.

14.In view of the above discussion and from the perusal of said provision of Section 502-A of Pakistan Penal Code as amended, it is evident that the language used therein is absolutely plain and unambiguous hence when the statutory amendment is clear and expressive, words cannot be interpolated.

15.For convenience sake, the second schedule of the Criminal Procedure Code before the above mentioned amendment, wherein the offences under Chapter XXI have been listed, is reproduced as under:

Section Offence Whether Whether a Whether Whether Punishment By what the police warrant or a bailable compound under the Court may summons or not able or not PPC triable arrest shall without ordinarily warrant or issue in the not instance 500 Defamatio Shall not Warrant Bailable Compoun Simple Magistrate n arrest dable imprisonme of the without nt for two First Class warrant years, or

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fines, or both

After the amendment of Schedule 2 of the P.P.C in the year 2004, the same Schedule now reads as under:

Section Offence Whether Whether a Whether Whether Punishment By what Court the police warrant or a bailable compoun under the triable may arrest summons or not dable or PPC without shall not warrant or ordinarily not issue in the instance 500 Defamatio Shall not Warrant Bailable Compoun Imprisonme Court of Session n arrest dable nt for two without years or warrant fines, or both, and in case of originator imprisonme nt of either description for five years, or fine, or both

16.In view of the above discussion it can safely be held that the offences under Chapter XXI of P.P.C shall be tried only by Court of Sessions, however, cognizance is to be taken by the Magistrate under Section 190 Cr.P.C. No Court of Sessions shall take cognizance of any offence as a Court of original jurisdiction unless the case is sent to it by a Magistrate under Section 193 subsection (1) of the Code of Criminal Procedure. The judgments referred to and relied upon by counsel for respondent No.1 Sadiq Shah PS

have no relevance or applicability to the legal question raised in this case.

As a result of above discussion, this petition is allowed, the impugned order of learned Additional Sessions Judge-VIII, Mardan dated 18.05.2015 is set aside. Cr. Misc. No.189-P of 2016 also stands disposed of.

JUDGE

Announced

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