1. Muzamil Akhtar Shabir, J.--This constitutional petition has been filed seeking quashment of criminal complaint pending against the petitioner in the Court of Sessions Judge, Sahiwal on the ground that the Sessions Judge has no jurisdiction to directly entertain the complaint.
2. 2.The brief facts of the case are that Respondent No. 2 filed a criminal complaint against the petitioner in the Court of Sessions Judge, Sahiwal stating therein that he had been duly authori?ed by the Honorable Election Commission of Pakistan to lodge a coinplaint under Section 4(h) of Code of Criminal Procedure "Cr.P.C." against the petitioner for commission of corrupt practice under Section 78(3)(d) read with Sections 82 and 94 of the Representation of the People Act, 1976 ("Act, 1976") and Sections 199, 200 and 471 of the Pakistan Penal Code, 1860 "PPC".
3. 3.The main allegation against the petitioner was that he contested election for the seat of Provincial Assembly from constituency PP-226, Sahiwal-VII in the year 2008. With the nomination papers idea on 26.11.2007 declaration on oath was made by petitioner that he was graduate and he was qualified to contest election under Article 62 of the Constitution of the Islamic Republic of Pakistan, 1973 ("the Constitution") and was not suffering from any disqualification provided under Article 63 of the Constitution to become a candidate for the said seat. Sand-ul-Faragh issued by Madrasat-ul-Quran, Al-Arabia Bahrul Uloom, Shikarpur and Sanad Shahadat-ul-Almiya Faisalabad, Rawalpindi annexed by the petitioner with the nomination papers were scrutinized by the Higher Education Commission and found fake vide letters dated 20.08.2010 and 30.8.2010. The petitioner failed to produce valid bachelor degree which was pre-requisite for contesting the said election. The Election Tribunal accepted the election petition filed by petitioner and declared the election of petitioner as illegal and void and set aside the notification whereby he was declared as returned 'candidate. The findings of the Election Tribunal were upheld by the Hon'ble Supreme Court of Pakistan. Thereafter, a criminal complaint was filed in the Court of Sessions Judge, Sahiwal by Respondent No. 2/Deputy Election Commissioner, Sahiwal against the petitioner for commission of the aforementioned offences.
4. 4.The petitioner was summoned in the complaint by Sessions Judge Sahiwal, The petitioner filed an application under Section 265-K Cr.P.C. which was dismissed on 30.03.2013. The petitioner through this constitutional petition has sought abashment of the a fore-referred criminality complaint.
5. 5.The argument of the petitioner is that neither the Election Commission of Pakistan nor any of its official is competent to file a criminal complaint under Section 94 of the Act, 1976 for violation of Section 78(3)(d) of the Act, 1976 read with Sections 199, 200 and 471 PPC. Furthermore, as the Election Commission of Pakistan was not competent to file criminal complaint, the Commission could not delegate the said power to Deputy Commissioner; and that the criminal complaint neither entertained nor competent in the eye of law and there is no probability of the petitioner to be convicted of the aforementioned offences.
6. 6.Learned counsel for petitioner has relied upon Sections 190 and 193 of Cr.P.C. to state that Sessions Judge is not authorized to directly entertain the complaint and it has to be initiated in the Court of Magistrate who may send the case to the Court of Sessions for trial, if offences friable exclusively by Sessions Court are made out.
7. 7.The Section 190 and 193 Cr.P.C. and Sections 94(2) and 95 of the Representation of Peoples Act, 1976 are re-produced as under: "[190. Cognizance of offences by Magistrates. All Magistrates of the first class, or any other Magistrate specially empowered by the Provincial Government on the recommendation of the High Court may take cognizance of any offence: (a)upon receiving a complaint of facts which constitute such offence; (b)upon a report in writing of such facts made by any police-officer;
(c) upon information received from any person other than a police-officer, or upon his own knowledge or suspicion that such offence has been committed which he may try or send to the Court of Sessions for trial]
(2) A Magistrate taking cognizance under sub-section (1) of an offence triable exclusively by a Court of Session shall, without recording any evidence, send the case to Court of Session for trial.
193. Cognizance of offences by Courts of Session. (1) Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Sessions shall take cognizance of any offence as a Court of original jurisdiction [unless the case has been sent to it under Section 190 sub-section (2)].
(2) Additional Sessions Judges and Assistant Sessions Judges shall try such cases only as the Provincial Government by general or special order may direct them to try, or as the Sessions Judge of the division, by general or special order, may make over to them for trial.
8. Section 94. Certain offences cognizable.--(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898, an offence punishable under '[Section 80-A] or Section 82 2[or Section 82-A] or Section 85 or sub-section (1) of Section 87 shall be cognizable offence..
9. (2). Notwithstanding anything contained in this Act or any other law for the time being in force, the offences of corrupt practice shall be tried by the Sessions Judge and an appeal against his order shall lie before a Division Bench of the High Court.
10. Section 95. Prosecution of offences by public officers.-- (1)No Court shall take cognizance of an offence punishable under sub-section (2) of Section 87, Section 89, Section 90, Section 91 or Section 92 except upon a complaint in writing made by order of or under authority from, the Commission or the Commissioner.
11. (2)The Commission or the Commissioner shall, if it or he has reason to believe that any offence specified in sub-section (1) has been committed, cause such enquiries to be made or prosecution to be instituted as it or he may think fit.
12. (3)An offence specified in sub-section (1) shall be exclusively triable by the Court of Session within the Jurisdiction of which the offence is committed.
13. (4)In respect of an offence specified in sub-section (1), Section 494 of the Code of Criminal Procedure, 1898 (Act V of 1898), shall have effect as if, after the word and comma "may",therein, the words "if so directed by the Chief Election Commissioner and" were inserted."
14. 8.Although the Cr.P.C. provides that a private complaint is to originate in the Court of Magistrate but the same would not be applicable to a case under the Representation of Peoples Act, t976.
15. Sub-section (2) of Section 94 of the Act, 1976 provides that notwithstanding anything contained in this Act 'or any other law for the time being in force, the offence of corrupt practice can be tried by the Court of Sessions Judge. This sub-section along sub-section (1) supported with non-obstante clause shows that sub-section (1) & (2) of Section 94 of the Act, 1976 would be applicable even if anything contrary is contained in Code of Criminal Procedure, 1898. From the perusal of Section 94 of the Act, 1976, it is clear that offence under Section 87 is triable under Section 94 of the Act, p976 and the Court of Sessions Judge has the jurisdiction directly to entertain the complaint notwithstanding the fact that the procedure prescribed in the Code of Criminal Procedure requires a complaint to be originated in the Court of Magistrate. The Representation of the People Act, 1976 being the special law is to override the General Law provided in Code of Criminal Procedure.
16. Therefore, we are of the opinion that the complaint could directly be filed before the Sessions Judge who is the competent Court to directly entertain the same without recourse to the procedure of filing complaint in the Court of Magistrate.
17. 9.The main offence against the petitioner is under Section 87 of the Act, 1976 which is triable by the Sessions Court. The application under Section 265-K, Cr.P.C. was filed by the petitioner before the essions Judge for his acquittal of the offences. The Sessions Judge as relied upon a judgment of Supreme Court of Pakistan reported as ian Najibuddin Oawaisi v. Aamir Yar and others (PLD 2011 SC 1) to observe that election Commission or the election Commissioner or any individual or any person can lodge complaint of the offence under sections 78, 82 and 94 of the Act, 1976 against a person who commits offence of corrupt practice. The relevant portion of the above referred judgment is re-produced as under: "7. We have heard learned Attorney General for Pakistan and have also carefully gone through the relevant provisions of the law. It is to be noted that for the purposes of instant case, Section 78(3)
(d) of the Act, 1976 which has already been reproduced hereinabove, defines the corrupt practices, whereas Section 82 of the Act 1976 prescribes the penalty for the offence of corrupt practices. This offence has been made cognizable under Section 94 of the Act, 1976, perusal whereof indicates that for invoking the jurisdiction of the Sessions Judge even an individual can lodge the complaint.
18. It would be appropriate to reproduce herein below Section 94 of the Act:-- "(94) Certain offences cognizable.--(1) notwithstanding anything contained in the Code of Criminal Procedure, 1898, an offence punishable wider (Section 80-A) or Section 82 (or Section 82- A) or Section 85 or sub-section (1) of Section 87 shall be cognizable offence.
19. (2)Notwithstanding anything contained in this Act or any other law for the time being in force, the offence of corrupt practice shall be tried by the Sessions Judge and an appeal against his order shall lie before a Division Bench of the High Court.
20. (3)Where proceedings against a person for being involved in corrupt practice are initiated on a complaint made by a private individual, and such person is convicted by the Court and his conviction is maintained in final appeal, the complainant may be entitled to such reward payable out of the amount of fine as may be imposed by the Court: Provided that where such complaint proves to be false, mala fide or is made for any ulterior motive to provide benefit to another person, the complainant shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both."
8. The careful perusal of the above provision indicates nothing about lodging the complaint either by an individual person or by the Chief Election Commission or by the Commissioner as is evident from the reading its plain language. It is rather Section 95 of the Act, 1976 which contains the provisions about lodging complaint in respect of offences other than those falling under Section 78(3)(d) of the Act, 1976 read with Section 82 of the Act, 1976. It provides that the Commission or the Commissioner (Chief Election Commissioner) can lodge the complaint in respect of such other offences. For convenience sake Section 95 is reproduced as under: "(95). Prosecution of offences by public officers.--(1) N Court shall take cognizance of an offence punishable under sub-section (2) of Section 87, Section 89, Section 90, Section 9 or Section 92 except upon a complaint in writing made be order of or under authority from, the Commission or the commissioner.
(2) The Commission or the commissioner shall, if it or he has reason to believe that any offence specified in subsection. (1) has been committed, cause such enquiries to be made or prosecution to be instituted as it or he may think fit.
(3) An offence specified in sub-section (1) shall be exclusively triable by the Court of Session within the Jurisdiction of which the offence is committed.
(4) In respect of an offence specified in sub-section (1), Section 494 of the Code of Criminal Procedure, 1989 (Act V of 1898), shall have effect as if after the word and comma "may, " therein, the words "if so directed by the Chief election Commissioner and" were inserted.) "
10. While relying upon the principles laid 'down by the Supreme Court of Pakistan in the above referred judgment, we are of the opinion that even Election Commission or his nomine i,e, Respondent No, 2 in respect of offence made cognizable under Section 82 of the Act, 1976 can file complaint under Section 94 of the Act, 1976 and the Sessions Court has the jurisdiction to directly entertain such a complaint. No illegality or erroneous exercise of jurisdiction has been pointed out in the orders passed by the Sessions judge. Therefore, there is no merit in this constitutional petition, the same being devoid of merit is dismissed.