' SAHIB KHAN, J.---Through this single judgment/order, we intend to dispose of the Criminal Appeals Nos.14, 15 of 2010, filed by appellants/convicts separately and Criminal Rev. No.12 of 2010 filed by the State. All these matters are outcome of the single judgment/order of the Anti-Terrorism Court, Gilgit, dated 29-7-2010. Whereby, the trial Judge convicted the appellants under section 9 of A.T.A., sentenced them to undergo for a period of 5 years and imposed fine of Rs.50,000 each. In default of payment of fine, the appellants were held to undergo further a period of 6 months.
2. Feeling aggrieved from above judgment/order, both the appellants have filed these appeals for their acquittal, while the revision petition filed by the State assails the same judgment and contains prayer for enhancement of conviction of both the appellants including coaccused/convicts Ghulam Muhammad and Sufi Ali, who were convicted and sentenced under section 9 of A.T.A. For a period of 6 months with a fine of Rs.10,000 each. In default of payment of fine, they also held to suffer and undergo for a period of one month. Since both the convicts/co-accused did not challenge their conviction before this Court, therefore, this judgment/order pertains the above referred matters only.
3. On the information by the informer to SHO of the Police Station City Skardu, who lodged F.I.R.
No.17/2010 on 12-4-2010 at about 8-30 p.m. Under section 153-A, P.P.C. And 8/9, A.T.A. The F.I.R. Is reproduced as under-- {{URDU TEXT }}
4. The case after investigation was sent to the Anti-Terrorism Court, Gilgit, vide Challan No.38/2009 against (1) Sufi Ali, (2) Ghulam Muhammad, (3) Syed Nawaz Hussain and (4) Mufti Ali Muhammad Hadi. All the accused were formally charged, who did not plead guilty and claimed trial The prosecution.Stated their case through.10,,p,ws. And relied on documentary evidence and CDs etc. After closing prosecution evidence, accused were given opportunity as provided under section 342, Cr.P.C. To explain the evidence against them. However, they did not opt to lead evidence under section 340, Cr.P.C. The trial Judge as stated supra convicted the appellants as well as convict/nonappellants.
5. We have heard the learned Counsel for the appellant and learned Additional Advocate-General at length. We have considered the record available and gone through the case-laws referred by the Counsel for parties.
6. The learned Counsel for appellants submitted that the appellants were convicted and sentenced without any oral as well as documentary evidence against them. The allegation levelled by the Prosecution is based on conjecture and suppositions rather nothing objectionable material was recovered from their possession. The learned counsel pointed out that the alleged offences were committed within the jurisdiction of the Police Station, Shigar, while F.I.R. Has been lodged; case was investigated and challan was submitted by the SHO City Skardu. Therefore, the whole proceedings carried by the police are without jurisdiction. The learned Counsel submitted that the accused were charged for committing offence under section 153-A, P.P.C. And the offence being against the State, cognizance thereof could not be taken unless clog in section 196, Cr.P.C. Was removed. The learned Counsel further contended that the provision contained as section. 196, Cr.P.C., being mandatory in nature, the complaint can either be made by the Central Govt. Or the Provincial Govt. Concerned or by the authority empowered in this behalf. He referred the following case-laws:- (1) 2000 PCr.LJ 902,
(2) 1999 PCr.LJ 445, (3) PLD 2005 Lah. 631, PLD 1972 SC 271.
7. The learned Additional Advocate-General submitted that the appellants/convicts have committed a heinous offence by publishing/distributing booklets and CDs containing insulting material against Aimma-e-Karam {{URDU TEXT}}with the intention to stir up Sectarian hatred among the different Sects of the Society in the region. For the purpose, all the convicts are involved either in publication of the material or in distribution of the same in the Skardu City. Therefore, the offence being continuation and series of acts of the same crime, can be registered and investigated even in Police Station City Skardu. The learned Additional Advocate-General submitted that the appellants/convicts were charged under section 153A, P.P.C. As well as sections 8/9 of A.T.A. Too. Therefore, the overriding effect provided' under section 32 of A.T.A. Prevails over the provision of section 196,,Cr,P.C.,- He in support of at his contention, relied on 20(g) MLD 946 (Karachi).
8. The prosecution case stated in the above reproduced F.I.R. Registered after the preliminary inquiry discloses that the same was lodged on the information by the informer. The objectionable material was recovered from the possession of Sufi Ali at Skardu, who further involved one Ghulam Muhammad who allegedly had provided the material for distribution among the public in general.
This is stated that the booklets were written by one of the appellants Syed Nawaz Hussain resident of Shigar, while Ali Muhammad Hadi allegedly had delivered speeches against-the faith of Shia and Noor Bakhshi faith in Gulabpur and Wazirpur, Shigar. The prosecution itself in the F.I.R. Has maintained that the alleged offence was committed by the appellant Ali Muhammad Hadi in the jurisdiction of Police Station Shigar, but not in the jurisdiction of Police Station City Skardu. Similarly, the appellant Syed Nawaz Hussain is stated to be Imam of a mosque in Shigar sub-division. We found no evidence on record purporting that the material was either provided. By Ali Muhammad Hadi or Syed Nawaz Hussain to the non-appellants for distribution in Skardu for the purpose given in the F.I.R. In the absence of any unrebutted evidence, none can rely the charges levelled in the FA.R. Or convict one on that basis. As both the appellants were charged for committing the offence- within the jurisdiction of Police Station Shigar, hence the case comes within the jurisdiction of that Police Station and not in the jurisdiction of Police Station City Skardu.
9. The next and most important point raised by the learned Counsel for appellants that the cognizance and judgment by the Anti-Terrorism Court (ATC), Gilgit, in the absence of requisite sanction of Federal/Provincial Govt. Or a complaint by any authorized person being "Coram. Non Judice" is nullity in the eyes of law as provided under section 196, Cr.P.C. Due to non-compliance of mandatory provision of law, the whole proceedings are ab initio void and not curable under section 537, Cr.P.C.
10. The judgment reported in 2000 MLD 946, (Karachi), relied by the learned Additional Advocate- General, being relevant with .Point in discussion, we desire to reproduce here the relevant abstract thereof. The learned Single Judge of the Sindh High Court concluded the matter with the following terms:-- "Thus, there being inconsistency and difference between the provisions of Section 30 of the Act and section 196 of the Code, the provision contained in the later law will not in- applicable to the proceeding before the Special Court. Therefore, in view of the inconsistency as 'discussed above, section 32 of the Act would come into play and the bar contained in section 196, Cr.P.C. Would not in anyway affect to the taking of Cognizance by the Court in exercising power under section 19 of the Act, consequently the application is dismissed".
11. As against to above, the learned single Judge of. The Lahore High Court, in a case reported in 2000 PCr.LJ 902 (Lahore), expressed his view as under:--
(7) "The learned Judge Special Court-II Anti-Terrorism Bahawalpur, took cognizance of the case; recorded the prosecution evidence, convicted and sentenced the applicant without adverting to the aspect of absence of the requisite sanction/order as required by section 196, Cr.P.C. For an offence punishable under section 295A, P.P.C. The entire proceedings by the learned trial Court being nullity in the eyes of law liable to be quashed."
12. We, in the circumstances, deem it proper to examine the section 32 of A.T.A. For fair conclusion of the point involved in the matter. This section reads:-
(32) Overriding effect of the 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, insofar, as they are inconsistent with the provisions of this Act, apply to the proceedings before an Anti-Terrorism Court and for the purpose of the said provisions of the Code an Anti-Terrorism Court shall be deemed to be a Court of Session.
13. The express provision under section 32 in the Anti-Terrorism Act, being a special and later law embodied overriding effect over the general law, but the concept of provision is that the A.T.A. Anti- Terrorism Act do not replace the Code of Criminal Procedure on the whole. In the Special law, the legislature provided certain provisions to meet the needs of special law. The provisions of special law if found inconsistent with the provision of the Code or any other law, of course the provision of special will come into operation, with the force available in section 32 of A.T.A., while section 32 itself recognize that when and where no special provision has been provided in the special law, the provisions in the Code of Criminal Procedure will be in field.
14. In view of the sensitivity of the offence under section 153-A, P.P.C. And sections 8/9 of A.T.A., it has been held in law to be an offence against the State instead of an offence against an individual although the individuals also affect from commission of such nature of offences. In the general interest of the ;people, the right of prosecution has been given to the State instead of an individual.
The F.I.R. Lodger SHO or the informant in this case has lodged the report who are not Central/Provincial Govt. Nor they are the persons duly authorized for the purpose as envisaged under section 196, Cr.P.C., hence the proceedings carried out by the Court on that report is coram non judice, ab initio, void and nullity in the eyes of law.
15. Therefore, we vide short order dated 25-5-2011, held:-- "We allow Criminal Appeals, Criminal Appeal 14 of 2010 and Criminal Appeal 15 of 2010, acquit the appellants:-1. Syed Nawaz Hussain son of Hassan 2. Ali Muhammad Hadi son of Hadi resident of Shigar, Skardu, from the charges under section 153-A, P.P.C. And 8/9, A.T.A. 1997 vide F.I.R.
No.17/2010, of Police Station City Skardu. They may be released from the custody, if not required in any other case.
' The Criminal Revision Petition, Criminal Rev. No.12 of 2010 filed by the State is dismissed finding meritless."
' These are the reasons for short order.