P L D 1993 Lahore 21

P L D 1993 Lahore 21
Before Sh. Muhammad Zubair, J
Mst. REHMAT BIBI --- Petitioner
versus
INSPECTOR-GENERAL OF POLICE, PUNJAB

and 12 others --- Respondents
Writ Petition No.3109 of 1992, heard on 17th October, 1992
(a) Suppression of Terrorist Activities (Special Courts) Act (XV of 1975)---
---- S.5 --- Penal Code (XLV of 1860), S-365/365-A/452/342/218/109/34---

Constitution of Pakistan (1973), Art.199 --- Trial Court while agreeing with the report
of Investigating Officer and after hearing Special Public Prosecutor discharged the
accused from the case registered against them on the direction of High Court --- Trial
Court, held, could not pass such order after taking cognizance of the case unless it had
recorded same evidence and then on the
move of some accused persons, could competently decide whether the charge was
groundless or not --- Trial Court, thus, appeared to have passed the said order in haste
without proper application of mind simply to oblige the accused who were police
personnel --- Police Officer also was not supposed to appreciate the evidence in the
manner as done in the case as it is the prerogative of the Court to decide the case ---
Impugned order, therefore, suffered from lack of jurisdiction, tainted with malice and
coram non judice and was set aside as having been passed without lawful authority and
being of no legal effect--- Writ petition was accepted accordingly and the case was
remanded to Special Court for decision in accordance with law
PLD 1976 Lah. 574 ref.
PLD 1973 Lah. 304; PLD 1965 SC 68 and PLD 1976 SC 37 rel
(b) Constitution of Pakistan (1973)---
---- Art.199 --- A party against whom an order without jurisdiction has been made may
ignore it and may not have it formally set aside in appeal or revision under the statute
under which it was purportedly made and this fact will no disentitle him from
challenging the same in collateral proceedings.
PLD 1965 SC 68 and PLD 1976 SC 37 rel.
Mansoor-ur-Rehman Khan Afridi for Petitioner.

Rana Muhammad Arshad Khan, A.A.-G. for Respondents Nos to 5
Muhammad Astain Malik for Respondent No.6.
Ch. Muhammad Afzal Wahllah for Respondent No.10
Date of hearing: 17th October, 1992.
JUDGMENT
Through this Constitutional petition, the petitioner Mst. Rehmat Bibi has
assailed the order, dated 16-3-1992, of Mr. Muhammad Aslarn ShamL Judge, Special
Court, Lahore, constituted under the Suppression of Terrorist Activities (Special
Courts) Act, 1975, whereby while agreeing with the report of the Investigating Officer
and after hearing the Special Public Prosecutor he discharged respondents 6 to 13 from
the case registered against them vide A F.I.R. No. 287/91, dated 2-10-1991, under
section 365/365-A/452/342/218/ 109/34 P.P.C., on the direction of this Court.
2. Brief facts relevant for the decision of this writ petition are that the petitioner
filed Writ Petition No.7622 of 1991, for the recovery of her two sons, namely,
Muhammad Rafiq and Muhammad Sharif, from the illegal detention of S.H.O. P.S.
Samanabad and Saadat Mehdi S.I. of the same police station. Vide order dated 8-9-
1991, two bailiffs were deputed to recover the said detenus. In pursuance of the
aforesaid order, the two detenus, were recovered and produced before this Court on 9-
9-1991. After recording the statements of the two detenus and the respondents, this
Court directed that a case should be registered against the delinquent police -officers
and others; hence the aforementioned F.I.R. was registered on 2-10-1991.
2. As the case was exclusively triable by the Judge of Special Court, therefore, the
challan , was submitted in his Court as required under section 5(l) of Suppression of
Terrorist Activities Act, 1975. Section 5 of the Act is reproduced in extenso for facility
of reference:-
"25. Taking of cognizance.-(I) The officer-in-charge of a police station shall complete

the investigation and forward directly to the Special Court a report under section 173
of the Code within fourteen days in respect of a case triable by such Court:
Provided that the Special Court may extend the time within which such report is to be
forwarded in a case where good reasons are shown for not doing so within the time
specified in this subsection.
(2) Any default on the part of an officer-in-charge of a police station, an investigating

officer or any other person required by law to perform any functions in connection
with the investigation, which results in, or has the effect of delaying the investigation
or the submission of the. report under subsection (1), shall be deemed to be a wilful
disobedience of the order of the Special Court and dealt with under the law
accordingly.
(3) The Special Court may directly take cognizance of a case triable by such Court
without the case being sent to it under section 190 of the Code."
In this case on 16-12-1991, the challan was submitted in the Special Court against the
accused persons. As some of the accused were not arrested; hence the words
"incomplete challan" were used. The learned Judge' on 8-1-1992, took cognizance of
the matter and started with the proceeding of the case Thereafter on 24m2-1992, a
report was made for the discharge of the accused and the learned Judge agreeing with
the report passed the impugned order referred to above.
3. This petition was admitted to regular hearing on 5-5-1992 and notice was issued -
to the respondents. Respondent No.6 filed a detailed written statement in this case.
4. Learned counsel for the petitioner has contended that the learned Judge, Special
Court in haste passed the order which is contrary to the record, as the High Court while
directing the registration of the case passed that order after recording the statements of
numerous persons and the learned trial Judge did not consider even any part of the
statements before passing the impugned order. He further urged that the learned Judge,
Special Court took cognizance on 8-1-1992, as contemplated under section 5(1) of the
Act and the report submitted by the police' after the taking of cognizance by the Court
would not result into discharge of the accused persons and has placed reliance on PLD
1976 Lah. 574, wherein the learned Judges placing reliance on PLD 1973 Lah.304,
held that once the final report is submitted under section 113 of the Code, then the
evidence collected by the police after that would be taken into consideration by the
Court under section 540 of the Code and not otherwise.
In the end, learned counsel submitted that as police personnel were involved in
this case, the 1.0. wilfully twisted the facts and evidence collected during the
investigation and by an elaborate report which amounts to decision of the case
submitted report for the discharge of the accused persons to the Special Judge, Special
Court. The 1.0. by critically examining the evidence collected during the investigation
has assumed the function of the trial Court which is not permissible under the law,.
hence on this score alone, the impugned order is liable to be declared as without lawful
authority and of no legal effect.
5. Learned counsel for respondent No. 6, on the other hand, has submitted that no
doubt the learned Judge took cognizance 'of the case on 84-1992, on the basis of
incomplete challan and thereafter on a final report under section 173, the Court
discharged the accused agreeing with the finding of the 1.0. who was a senior officer of
the rank of D.S.P., appointed by the D.I.-G. Range Crime, Lahore. He submitted that
under the Scheme of the Code, there is no concept of discharge, in fact, it was an order
of the acquittal of the accused persons as contemplated under section 249-A or section
265-K of the Code, because the 1.0. after thorough probe submitted the final report
under section 173 of the Code recommending that the charge is groundless, so the
accused may be acquitted; hence these proceedings cannot be challenged by way of
Constitutional Petition, because the proper procedure has been given in section 7 of
1975 Act, Suppression of Terrorist Activities (Special Courts) Act, 1975 wherein power
has been given to the Provincial Government to file an appeal against that acquittal.
Ch. Muhammad Afzal Wahlah appearing for respondent No.10 submitted that
the writ petition is not competent in the present form, because the impugned order
could be assailed through a revision petition under the provisions of the Code, apart
from adopting the arguments of the learned counsel for the respondent No.6.
6. Learned Law Officer, who was present on the direction of the Court for
assistance, frankly conceded that the impugned order was passed in haste without
application of conscious mind by the learned Judge after taking cognizance of the case
on 8-1-1992; hence this order is not sustainable in the eye of law; in the alternative he
argued that the trial Court had the jurisdiction to acquit. the accused if he finds that the
charge is groundless. In the circumstances, though the learned Judge has not
specifically mentioned the word 'acquittal', but he might have exercised his powers
under the same provision. The Law Officer however, conceded that the writ petition is
permissible in this case, because the impugned order can be equated as an
administrative order, if it is treated as cancellation of the F.I.R. of the case, though it is
not specifically mentioned, by the learned Judge as envisaged by the provisions of the
Police Act and Rules.
7. 1 have examined the respective submissions of the learned counsel at, length.
Before taking into consideration the various contentions of the learned counsel for the
parties, I would like to point out the difference as contemplated by section 5 of 1975
Act and the procedure laid down in the Code itself, which has got the sanction of
section 5(2) of the Code, which reads:--
"5(2). All offences, under 'any other law shall be investigated, be inquired into, tried
and otherwise dealt with according to the same provisions, but subject to any
enactment for the time being in force, regulating the manner or place of investigating,
inquiring into, trying or otherwise dealing with such offences."
As mentioned above, section 5(2), Cr.P.C. contemplates that in all criminal

proceedings, the Court will follow ' the Criminal Procedure Code subject to this
condition that the Special Law can prescribe its own procedure for the mode of trial. In
the present case, in view of section 5 of 1975 Act, referred to above, the S.H.O.was
bound to submit the challan within fourteen days and in
compliance with that direction, the challan was submitted on 16-12-1991 on the
prescribed form and the mere word that it is an incomplete challan would not make it a
report other than a report under section 173, Cr.P.C. The learned Special Court did take
the cognizance o t e case on 8-1-1992 on which both; the learned Judge could not pass
the parties agree. In these circumstance.,, impugned order unless he records some
evidence and then on the move of some accused' persons he was competent to decide
whether the charge was groundless or not. Reliance in this connection is placed on
PLD 1973 Lah. 304. In the present case, neither the police nor the learned trial Judge
followed the procedure prescribed by law. It appears the learned Judge without proper
application of mind, in haste, passed the impugned order simply to oblige the accused-
respondents, who were police personnel; hence the impugned order is mala fide and
without jurisdiction.
8. 1 have minutely gone through the alleged final report submitted by the police officer
which is also a biased document, because herein every effort was made by the 1.0. to
nullify the effect of the evidence recorded by this Court while making direction to the
police officer to register the case against the respondents. The police officer is not
supposed to appreciate the evidence in the manner as it has been done in this case,
because it is the perogative of the Court to decide the case; hence, this order suffers
from malice and lack of jurisdiction apparent on the face of it. The? contention of the
learned counsel for the respondents. that the impugned order, which has been styled as
discharge order is, in. fact,. an order of acquittal is also untenable for the reasons
mentioned above.
9. The next contention of the learned counsel for the respondents that the impugned
order cannot be assailed through Constitutional jurisdiction as I revision is permissible,
is also devoid of force, because a party against whom an.;,,. order without jurisdiction
has been made may ignore it and may not have it ~E formally set aside in appeal or
revision under the statute under which it was I, purportedly made and this fact will not
disentitle him from challenging it in collateral proceedings. Reliance is placed on PLD
1965 SC 68 and PLD 1976 SC 37.
10. As the impugned order suffers from lack of jurisdiction, tainted with malice
and coram non judice; hence this writ petition is accepted and the impugned order is
set aside as having been passed without lawful authority and I is of no legal effect. The
case is remanded to the Special Court for decision in accordance with law. As Mr.
Muhammad Aslam Shami, Judge, Special Court, has already expressed his opinion in
haste, it would, therefore, not be desirable
that he should try this case again. The Home Secretary, Government of the Punjab,
Lahore, is directed to entrust the rile of this case to some other learned Judge of
Special Court for trial in accordance with law.
11. As complicated questions of law and facts are involved in this case, therefore,
the parties are left to bear their own costs.
N.H.Q./R-61/L
Petition accepted.
;

P L D 1993 Lahore 21

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P L D 1993 Lahore 21

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P L D 1993 Lahore 21

Before Sh. Muhammad Zubair, J

Mst. REHMAT BIBI --- Petitioner

INSPECTOR-GENERAL OF POLICE, PUNJAB

Writ Petition No.3109 of 1992, heard on 17th October, 1992

(a) Suppression of Terrorist Activities (Special Courts) Act (XV of 1975)---

---- S.5 --- Penal Code (XLV of 1860), S-365/365-A/452/342/218/109/34---

PLD 1976 Lah. 574 ref.

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

PLD 1965 SC 68 and PLD 1976 SC 37 rel.

Mansoor-ur-Rehman Khan Afridi for Petitioner.

Date of hearing: 17th October, 1992.

"25. Taking of cognizance.-(I) The officer-in-charge of a police station shall complete

(2) Any default on the part of an officer-in-charge of a police station, an investigating

As mentioned above, section 5(2), Cr.P.C. contemplates that in all criminal

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