MUHAMMAD HASHIM KHAN KAKAR, constitution petition carries the following prayer: A. That in view of the fact that other courts in the Province of Sindh has taken cognizance for the same alleged offence, this Hon'ble Court may ment of multiple trials pending before the trial courts subordinate to this Hon'ble Court which have been commenced in pursuance of FIRs registered as mentioned in Para '20' of the instant petition for the alleged morning show of Dr. Shaista Lodhi. On Geo Entertainment dated 14th May 2014. Or in the alternative. B. The Hon'ble Court may direct to quash all the trials except ones which have been commenced in pursuance of FIRS as mentioned in Para '20' of the instant petition registered in pursuance of alleged morning show of Dr. Shaista Lodhi on Geo Entertainment dated 14th May, 2014.
C. That in the meanwhile, till the disposal of this petition this Hon'ble Court may kindly restrain the respondents/law enforcing agencies working under the respondents from taking any coercive action against the petitioners on the basis of any trial pending before any of subordinate Court of this Hon'ble Court.
D. That in view of the unique and unprecedented circumstances on the basis of which the instant petition is being filed, this Hon'ble Court may pass any other just and appropriate order that it may deem fit to do complete justice to the petitioners."
2. It is the case of the prosecution that on 14th May 2014, during the transmission of morning show of Dr. Shaista Lodhi "Utho Jago Pakistan", while committing the offence of Toheen-e-Ahl-e-Bait, a Kalam was sung by some Qawals, usually sung all over Pakistan, particularly at the time of wedding ceremonies, however, within hours of airing of that morning show, the host of the Programme Dr. Shaista Lodhi openly and unconditionally prayed for forgiveness from the Almighty Allah and also publically apologized, stating that all this was inadvertent and unintentional. Since 15th May, 2014, the apology of Dr. Shaista Lodhi has been broadcast after every hour on `Geo News' and 'Geo Entertainment' channels. After airing the said show, cognizance was taken by Pakistan Electronic Media Regulatory Authority ("PEMRA"), a number of FIRs were lodged against the petitioners including the following:
(i) FIR No,3 of 2014, under Sections 295-A, 295-C and 298-A of the Pakistan Penal Code 1860 (PPC), registered at Sambaza Police Station district Zhob on the report of one Habibullah son of Haji Baz Gul: P.P.C., registered at Zhob Police Station district Zhob on the report of one Arsala Khan son of Sahib Jan;
(iii) FIR No,35 of 2014, under Sections 295-A, 298-A read with section 109 of the P.P.C. And Section 7 of the Anti-terrorism Act, 1997, registered at Jinnah Town Police Station, Quetta on the report of one Muhammad Naseem son of Sher Muhammad, and
(iv) FIR No,117 of 2014, under Sections 295-A, 298-A read with section 109 of the P.P.C. And section 7 of the Anti-terrorism Act, 1997, registered at City Police Station, Quetta. In pursuance of registration of the aforesaid FIRs, challans were prepared and submitted before the different Courts, which are still pending.
3. Messrs Saim Hashmi and Zahra Sehr Vayani, Advocates, representing the petitioners, submitted that in view of pendency of four separate proceedings over the same offence in four different Courts in the Province of Balochistan would only lead to a double jeopardy and, as such, the proceedings pending in the said Courts, except the learned Sessions Judge, Quetta, as prayed for by the petitioners, should be dropped. They further submitted that the dominant consideration for interference under section 185(1) of the Code of Criminal Procedure 1898 (Cr.P.C.) is the ground of convenience of the accused and not the fact of earlier commencement, as enjoined under section 185(2) of the Cr.P.C. While concluding their arguments, they submitted that proceedings were firstly commented by, a Court at Quetta within the local limits of appellate jurisdiction of this Court, thus, this Court, within the purview of section 185(2) of the Cr.P.C, can direct trial of the petitioners by the learned Sessions Judge, Quetta and quashment of the remaining proceedings.
4. On the contrary, Mr. Abdul. Latif Kakar, learned Assistant Advocate General, and Miss. Sarwat Hina, learned Additional Prosecutor General, Balochistan, contended that the question of convenience of the accused is immaterial and the sine qua non for an interference under section 185(1) of the Cr.P.C. Is as to which proceedings were 'first commenced' as enjoined under. Section 185(2) of the Cr.P.C. They further stated that the proceedings by the different Courts in the sister province of Sindh were commenced first and cognizance was taken by the said Courts, as such, this Court has no jurisdiction to adjudicate upon the matter within the purview of section 185(2) of the Cr.P.C. In response to the contention raised by them, Mr.Hashmi was of the view that the concept of an 'earlier commencement' as enjoined under section 185(2) of the Cr.P.C. Cannot be imported into section 185(1) of the Cr.P.C. For the purpose of determining as to in which of the four subordinate Courts, the inquiry or trial should go on.
5. Since the claim of the petitioners relates to interpretation of section 185 of the Cr.P.C. As such, it would be advantageous to reproduce the same:
185. High Court to decide, in case of doubt, district where inquiry or trial shall take place.--(I)
Whenever a question arises as to which of two or more Courts subordinate to the same High Court ought to inquire into or try any offence, it shall be decided by that High Court.
(2) Where two or more Courts not subordinate to the same High Court have taken cognizance of the same offence, the High Court within the local limits of whose appellate criminal jurisdiction the proceeding were first commenced may direct the trial of such offender to be held in any Court subordinate to it, and if it so decides all other proceedings against such person in respect of such offence shall be discontinued if such High Court, upon the matter having been brought to its notice, does not so decide any other High Court, within the local limits of whose appellate criminal jurisdiction such proceedings are pending may give alike direction, and upon its so doing all other such proceedings shall be discontinued." .
6. A bare perusal of subsection (1) of section 185 of the Cr.P.C. Would show that the said provision does not fetter in any way the discretion of High Court by enjoining any condition precedent for deciding as to in which of the two or more Courts, subordinate to the same High Court, the inquiry or trial shall proceed, however, in subsection (2) of section 185 of the Cr.P.C, the sine qua non for such interference is as to where to proceedings were first commenced. The point for determination, therefore, is whether the concept of an earlier commencement as enjoined in subsection (2) can be imported into subsection (1) of section 185 of the Cr.P.C. Which is, otherwise, silent on the same.
In this regard, we are of the considered view that the dominant consideration of an earlier commencement has been incorporated in subsection (2) of section 185 of the Cr.P.C. For the reasons, because the said subsection refers to a different state of circumstances, where the two or more subordinate Courts taking cognizance of the same offence are not subordinate to the same High Court and, therefore, to eliminate possible confusion and conflict, the principle of earlier commencement has been enjoined, however, the same is not the position, as enjoined under subsection (1) of section 185 of the Cr.P.C, where the two or more Courts concerned are subordinate to the same High Court. The field of consideration is, therefore, wider and includes not only the ground of earlier commencement, but also the ground of general convenience and any other sufficient reasons, while deciding as to which of the two subordinate Courts shall inquire into or try the offence.
7.. The discretion conferred under the said subsection is unfettered and untrammeled by any consideration of an earlier commencement only. The factum of earlier commencement may be one of such considerations, but not the only consideration for exercising the discretion of the Court conferred under subsection (1) of section 185 of the Cr.P.C. In that context, undoubtedly, the question of convenience and other peculiar factor of the case may be a material consideration for exercising the said discretion.
8. It is also worth mentioning that section 185 of the Cr.P.C. Does not enable a High Court to make an order transferring a case pending on the file of a criminal Court whether within or outside its jurisdiction to the file of another criminal Court whether such other criminal Court be within its own jurisdiction or without its jurisdiction. Section 185 of the Cr.P.C. Has absolutely nothing to do with transfer or with a High Court's power of transfer. The power to transfer vested in the High Court, insofar as the Criminal Procedure Code is concerned, is dealt with solely by section 526 of the Cr.P.C. Similarly, section 527(1) of the Cr.P.C. Implies that it is only the Provincial Government that has the "power to transfer a case pending in a Court subordinate to one High Court to be tried by a Court subordinate to another High Court. Section 185(1) of the Cr.P.C. Only implies that whenever a question arises as to which of two or more Courts subordinate to the same. High Court ought to inquire or try any offence, shall be decided by that High Court.
9. Considering the instant case on the touchstone of the aforesaid provisions of law, particularly the prayer of learned counsel for the petitioners in respect of discontinuing the proceedings pending before different Courts outside the jurisdiction of this Court, we are unable to pass any order due to lack of relevant evidence, showing that the subordinate Courts of Balochistan have commenced proceeding prior to the Courts of sister provinces. In this regard, the learned Assistant Advocate General as well as Additional Prosecutor General has rightly pointed out that for the same relief, the petitioners have already approached the Hon'ble Sindh High Court at Karachi by means of filing C.P. No,D-3608 of 20,14 and referred to the order dated 15th July 2014, the operative portion whereof reads as under: "We have briefly considered section 185 Cr.P.C. With the assistance of the learned counsel for the petitioner as well as learned AAG. Prima facie, but without prejudice to the case of the parties, the question of relief cannot be properly addressed unless the details and particulars of all the FIRs being referred to and proceedings (if any) in relation thereto in the different criminal courts, are not on the record. Learned Counsel for the petitioner undertakes to do the needful and place on record the relevant details under cover of a statement."
' Thus, it would be appropriate for the petitioners to approach the relevant High Courts for redressal of their grievances regarding consolidation of FIRs and trial by a single Court, if advised.
10. So far as the prayer of the learned counsel for the petitioners regarding trial of the petitioners by a single Court is concerned, we have noticed that almost 75 FIRs across the country have been got registered against the management of petitioner No,1 and petitioner No,2. The moot question for consideration arises as to whether investigation and further proceedings on the basis of all the FIRs is permissible? Though a straitjacket formula cannot be laid down, yet the only test whether 75 FIRs can be permitted to exist. In such case, the Court has to examine the facts and circumstances giving rise to all the FIRs and the test of sameness is to be applied to find out whether all the FIRs relate to the same incident in respect of the same occurrence or are in regard to the incidents, which are two or more parts of the same transaction. If the answer is in the affirmative, the second or the remaining FIRs are liable to be quashed. However, in case; the contrary is proved, where the version in the second FIR is different and they are in respect of the two different incidents/crimes, the second FIR is permissible.
11. Considering the instant case on the touchstone of aforesaid settled legal propositions, we are of the view that it is neither possible nor convenient for the petitioners to obtain bail from various Courts in various cities joining various investigations and finally defending themselves before various Courts, that too, for one and the same offence. Admittedly, all the aforementioned FIRs have been registered for the same incident under the same provisions of law against the same accused and in such state of affairs, taking cognizance by multiple Courts, having different territorial jurisdiction, simultaneously, seems to be in violation of Articles 4 and 13 of the Constitution of Islamic Republic of Pakistan 1973 ("the Constitution"), section 403 of the Cr.P.C. And section 26 of the General Clauses Act 1897. Similarly, Part VI, Chapter icy, sections 177, 179, 180, 181 and section 235 of the Cr.P.C. Also envisage a single trial.
12. We have also noticed that the petitioners have been charge-sheeted in a number of Courts and they shall either be convicted or acquitted on the basis of facts and evidence. In such view of the matter the simultaneous and continuous trials in presence of same facts and on the same set of evidence and allegations, would patently result in a duplicate punishment or at least a duplicate trial in violation of the doctrine of double jeopardy, thus, the petitioners can seek the relief of acquittal without first having been convicted or acquitted for the same offence by a Court of competent jurisdiction. Even otherwise, in the instant case, the documents appended with the petition revealed that they have been acquitted of the charge by a number of Courts, while Convicted for the same offence by an Anti-terrorism Court, Gilgit Baltistan vide judgment dated 25th November 2014.
13. We are also in agreement with the learned counsel for the petitioners that it is the convenience of the petitioners, which is to be considered and no question, however, of the complainant being inconvenienced, because the complainants are different in the 75 proceedings and, as such, whoever may be, the complainants will not be inconvenienced in any way, wherever the proceedings may ultimately take place. Even otherwise, the question of general convenience does not include the complainants and can only relate to the accused in such proceedings and the same again must depend on the facts of each case. In the instant case; after broadcasting of the disputed Kalam, within a short span of time, competitor media channels unleashed a most ferocious and nasty provocative campaign charging the host of petitioner No,1 as well as petitioner No, 2, allegedly, committed disrespect to Hazrat Bibi Fatima (razi allah tala anhu) and Hazrat Ali (razi allah tala anhu). In such situation, it is absolutely not possible for the petitioners to defend themselves before different Courts; situated across the country.
14. The manner, in which a number of FIRs have been got registered, that too, in different parts of the country regarding one and the same offence and, subsequently, its investigation and submission of challans before the concerned Courts, having jurisdiction, clearly indicate that it is abuse of process of law. There has to be an end to litigation in every legal system. It would be shocking to the judicial conscience to try a man again and again for one and the same alleged offence and that is what would happen if we allow such practice. Needless to observe that, as stated above, Article 13 of the Constitution prescribes that "no person shall be prosecuted or punished for the same offence more than once". The word 'liberty' under Article 9 of the.
Constitution is of the widest amplitude covering variety .Of rights, which goes to constitute personal liberty of a citizen. Similarly, Article 4 of the Constitution enshrines that it is inalienable right of every citizen to enjoy the protection of law and to be treated in accordance with law. Likewise, Article 10-A of the Constitution guarantees a fair trial and due process. Thus, the deprivation of any citizen shall be only as per procedure prescribed in the Code conformable to the mandate of the Constitution.
Under the circumstances, we partly allow this constitutional petition and quash the proceedings in Crimes Nos.3 of 2014, 5 of 2014 and 35 of 2014, respectively lodged with Police Stations Sambaza, Zhob and Quetta up to the extent of the petitioners. However, this order will not affect trial of the petitioners by Sessions Judge, Quetta in Crime No,117 of 2014, dated 3rd June 2014, under section 295-A, read with section 109 of the Pakistan Penal Code.