Qazi Muhammad Amin Ahmed, J.--Issue in hand with chequered history dates back to year-2004; official account is recorded through Khalid Saleem, S.I vide FIR No, 40 dated 1-5-2004 under Sections 302, 324, 353, 186, 148,149 of the Pakistan Penal Code, 1860 with Police Station Bangla Ichha District Rajanpur; it is alleged that on the fateful day, a police contingent headed by Muhammad Azeem Khan Niazi, Inspector in hot pursuit for the arrest of accused in a case of homicide was confronted by outlaws, duly nominated as well as unknown, variously armed, as a result whereof, Muhammad Azeem Khan Niazi, Inspector was caught in the line of fire. A group of proclaimed offenders, joined the accomplices from the opposite direction; both sides exchanged fires for almost three hours and as the guns went silent, from amongst the accused Muhammad Bakhsh, Ali I)ost, Rafique Ullah, Dil Murad, Mohib, Noor Elahi, Ali Bakhsh were spotted dead; some of the accused, 8 in number, were apprehended at the spot while the remainders took to heels. The accused came up with their own story, related by Aziz Ahmad petitioner; he arrayed as many as 18 accused, comprising police officials as well as members of opposite clan, for playing havoc with the family with resultant colossal loss of life as well as properties. A private complaint instituted by him against eighteen accused, came up for hearing before the learned Judge, Anti-Terrorism Court, Dera Ghazi Khan. The learned Judge, after recording cursory evidence declined to issue process vide impugned order dated 10-11-2006. Aggrieved by dismissal, Aziz Ahmad, petitioner herein, filed Crl. Revision No, 417 of 2006; it came up before a learned Division Bench on 8-2-2007 when the learned counsel was confronted with the question of maintainability; the issue kept on lingering for one reason or another, however, the petition was admitted for hearing on 27-1-2010.
Formal admission notwithstandip9 the question of maintainability kept on to overshadow the lis. In the wake of divided judicial opinions, the Hon'ble Chief Justice was requested for Constitution of a Larger Bench vide order dated 22-62016; the Chief. Justice had been pleased to constitute a Full Bench. The issue remained pending for one reason or another, mostly on account of change in composition of Full Bench due to Roster rotations.
2. Learned counsel for the petitioner contends that the High Court being the highest Court in the Province is vested with Constitutional authority of superintendence over all the Courts in the Province in view of Article-203 of the Constitution of Islamic Republic of Pakistan, 1973; adds that powers of superintendence can be exercised on judicial side as well; it is further argued that being Court of appeal, a High Court can exercise revisional powers to examine correctness, legality or propriety of orders passed by Courts inferior in hierarchy; he has referred to Section 32 of the Anti- Terrorism Act, 1997 (XXVII of 1997), henceforth referred to as the Act, to qualify that an Anti- Terrorism Court is to be deemed Court of Session and as such its orders are amenable to judicial scrutiny in exercise of revisional jurisdiction by the High Court; it is next argued that in the absence of an express provision, ouster of jurisdiction is not to be readily inferred; he has referred to Sections 21-D & 25(8) of the Act. The learned counsel has again combinedly referred to Sections 25 and 31 of the Act to canvass that dismissal of private complaint being not a final order or judgment within the contemplation of the Sections ibid, only remedy available to an aggrieved person is by way of revisional scrutiny in terms of Section 436 of the Code of Criminal Procedure,1898, henceforth referred to as the Code; to substantiate his point of view, the learned counsel surveyed the powers of Appellate Court under Section 423 of the Code to argue that assumption of jurisdiction under Section 439 is a sine qua non for enhancement of sentence for which according to him, there is no independent mechanism provided under the Act. While attempting analogous comparison of the Act with the Drugs Act, 1976 (XXXI 1976) as well as the Offences in Respect of Banks (Special Courts)
Ordinance, 1984 (Ordinance No, IX of 1984), on the strength of law declared in the cases of Abdul Aziz us. The State (NLR 1981 Crl. 464) and Habib Bank Ltd. v. The State & 6 others (1993 SCM R 1853), the learned counsel contends that remedy of revision cannot be denied under the Act even though not specifically provided. The bottom line is that an aggrieved person, in the absence of an explicit, express and unambiguous bar or ouster, can invoke revisional jurisdiction of the High Court for the redressal of his grievance; he has relied upon a good number of cases, nonetheless, in different factual contexts, to urge that supremacy and superintendence of the High Court cannot be curtailed nor an aggrieved person left remediless.
Learned Deputy Attorney General for Pakistan, learned Additional Advocate General Punjab and learned Additional Prosecutor General Punjab are in attendance in pursuance to notice in terms of Order XXVII (A) of the Civil Procedure Code, 1908, however, without being in a unison. Learned Deputy Attorney General as well as learned Additional Prosecutor General Punjab positioned themselves against the maintainability of revision petition whereas the learned Additional Advocate General Punjab joined the learned counsel for the petitioner to argue that an aggrieved person may avail remedy of revision under the Act. Learned Additional Prosecutor General Punjab contends that the Act being a special Statute devised to meet extraordinary situations is to be construed strictly, having regard to the instrumentality of purpose it is invented for. The learned Law Officer has invited attention towards distinct definition of a High Court drawn under the Code and the Act to illustrate that its Constitutional supremacy notwithstanding, the legislature never contemplated a Special Court as inferior Court in terms of Section 435 or 439 of the Code. Learned Law Officer maintains that High Court's Constitutional authority to 'issue an appropriate writ never left an aggrieved without remedy whenever occasion necessitated judicial intervention, a power of far greater amplitude. While relying upon the case of Fazeelat Bibi PLD 2013 SC 361, the learned Law Officer concludes that the Act being a special law is to be construed, constructed and interpreted in its own context having regard to the legislative intent. Private respondents also contested the plea.
3. Heard. Record perused.
4. Though there is no universal agreement to conceptualize the phenomena, notwithstanding an elaborate definition under Section 6 of the Act, nonetheless, conveniently "Terrorism is, in the broadest sense, the use of intentionally indiscriminate violence as means to create terror among masses of people; or fear to achieve a financial, political, religious or ideological aim". This particularly distinctive aspect of use of violence necessitated creation of special jurisdictions to promptly and effectively suppress the mischief as the procedure for trial of run of the mill criminal cases already in vogue, failed to achieve the desired results. It is in this background, that The Prevention of Anti-National Activities Ordinance, 1973 (XXIX of 1973) was promulgated, with a view to "provide for the more effective prevention of certain anti-national and treasonable activities of individuals and associate on and for matters connected therewith" and to achieve the declared purpose, a Tribunal was created. The mechanism was substituted under the same nomenclature through Act VII of 1974. The Suppression of Terrorist Activities (Special Courts) Act, 1975 (Act XV of 1975) has been next legislative attempt to provide a special mechanism for accelerated disposal of cases, designated under the Schedule, The Special Courts for Speedy Trial Act, (Act XV of 1987) was next arrangement in line before the advent of Anti-Terrorism Act, 1997 (Act, XXVII of 1997) currently holding the field. The list is by no means exhaustive inasmuch as different Statutes for the said purpose with regard to certain areas as well as time bound Constitutional arrangements for trial of cases of most heinous nature, by the tribunals provided under the Pakistan Army Act, 1952 kept holding the field from time to time. It is in this, backdrop that application of Sections 435, 436 and 439 in the wake of dismissal of petitioner's private complaint by an Anti-Terrorism Court vide impugned order dated 10.11-2006 requires an authoritative determination in the face of divided judicial opinions.
Having regard to legislative intent as well as the purpose behind the Act, a convenient starting point would be examination of preamble to the Code and the Act. The former came into force on 22nd of March, 1898 "to consolidate and amend the law relating to Criminal Procedure" whereas the latter was enacted on 20th of August, 1997, to provide for the prevention of terrorism, sectarian violence and for speedy trial of heinous offences and for matters connected therewith and incidental thereto. Going by the primary and safe rule of literal construction it becomes abundantly clear that the Act has been targeted upon situations falling beyond the compass of normal or usual criminal procedures, in categories of cases, specifically enumerated, not only for prevention thereof but for their expeditious disposal/decisions in a time frame speedier than usual. Procedure of trial provided under Section 19 of the Act and its precedence in terms of Section 29, in contradistinction to normal criminal procedure would lead to the same conclusion; space for the defendant is conspicuously smaller, nonetheless, by necessary intendment. Overriding effect as contemplated by Section 32 of the Act and exclusion of provisions of the Code to the extent of inconsistency therewith, itself, by necessary implication, would exclude application of the provisions of the Code, standing in impediment to the declared objectives and, thus, a contra view cannot be hypothesized without destruction of the very genesis of the legislative exercise specifically designed to suppress the identified mischief. clearly mentioned in the preamble and, thus, such a 'construction would not only be inconsistent with the special purpose, in terms of Section 32 of the Act but would also leave little dissimilar in the procedures provided under the two Statutes; it would manifestly militate against the legislative intent, a factor to be essentially taken into account alongside contemporaneous circumstances as well as history necessitating legislative response to meet the situations visualized by the Act.
A High Court, notwithstanding the highest Court of a Province, nonetheless, has been contradistinction defined under the Code and the Act; former defines it as "the highest Court of appeal and revisions for a Province" whereas according to the latter, it is "High Court having territorial jurisdiction in respect of the area for which an Anti-Terrorism. Court has been established". The language employed under the Act strikingly resembles with the expression territorial jurisdiction occourring in Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. Therefore, when read in conjunction with Section 25 of the Act, providing an appeal against the final judgment, an Anti-Terrorism Court appears to be outside the purview of expression 'inferior Criminal Court' within the meaning of Section 435 of the Code, for more than one reason; first that an opposite view has to be essentially based upon superfluity which cannot be possibly attributed to the legislature and second for its being in conflict with sub-section (8) of Section 25 of the Act, that places an unambiguously clear bar on release of an accused on bail during pendency of his appeal which runs counter to the powers of the revisional Court to suspend execution of any sentence or release of a convict on bail pending examination of the record. A Statute is to be read and constructed as a whole and the same holistic approach is to be adopted with regard to a particular provision/section thereof and, thus, a provision cannot be dissected into pieces to space a power, otherwise barred. Even otherwise, the approach for a partial construction would be anomalous inasmuch as requisition of record for examination of vires of any finding without authority to rescind, modify or set aside the same is venture in futility. The following excerpt, qualifies the above position: "if the choice between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to a futility and should rather accept the bolder construction based on the view that parliament would legislate only for the purpose of bringing about an effective result"(Shannon Realities Limited v. dest Michel] (1924 A. C, 1014).
Argument based upon the phraseology of Section 32 of the Act, declaring an Anti-Terrorism Court, deemingly a Court of Session with modified application of the Code, save as expressly provided under the Act, except to the extent of inconsistency, to maintain that in the absence of an express ouster, remedy of revision would remain available to an accused confronting trial under the Act is beside the mark. In the case of The State through Mehmood Ahmad Butt, Deputy Director, Regional Directorate, Anti Narcotic Force Lahore vs. Mst. Fazeelat Bibi (PLD 2013 SC 361), applicability of the procedure provided under the Code in cases arising out of the Control of Narcotic Substances Act (XXV of 1997), under the same context came under consideration, relevant portion whereof is advantageously reproduced: "We have found such an impression entertained by the learned Division Bench of the Lahore High Court, Lahore to be erroneous because the provisions of Section 47 of the Control of Narcotic Substances Act, 1997 have made the Code of Criminal Procedure applicable "to trials and appeals before a Special Court under this Act" which shows that only the procedure provided in the Code of Criminal Procedure is applicable to trials and appeals provided for under the Act of 1997 and Section 47 of the Act of 1997 has not transposed any remedy of appeal or revision from the Code of Criminal Procedure to the Act of 1997. It ought to have been appreciated by the learned Division Bench of the Lahore High Court, Lahore that a remedy of an appeal, revision or review is a creation of a statute and applicability of the procedure prescribed in the Code of Criminal Procedure to the proceedings under any other special statute does not ipso facto make the remedies provided in the Code of Criminal Procedure applicable to the other statute. The Control of Narcotic Substances Act, 1997 is a special law containing all the relevant remedies catering for different situations and Section 47 of the said Act has only made the procedure contained in the Code of Criminal Procedure applicable to the proceedings under the Act of 1997."
Various references eruditely mentioned in "Maxwell on The Interpretation of Statute, Twelfth Edition by P. St. J. Langan" confirm the above view; it reads as follows: "It is a corollary to the general rule of literal construction that nothing is to be added to or taken from a statute unless there are adequate grounds to justify the inference that the legislature intended something which it omitted to express. Lord Mersey said: "It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is wrong thing to do." "We are not entitled," said Lord Loreburn L.C, "to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself:" A case not provided for in a statute is not to be dealt with merely because there seems no good reason why it should have been omitted, and the omission appears in consequence to have been unintentional."
On a higher paradigm, under Article 175(2) of the Constitution, "no Court Shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law." On the Constitutional plain, High Court's authority to issue an appropriate writ, inter alias in the form of mandamus or certiorari is far much wider than statutory jurisdiction to examine "correctness, legality or propriety of any finding" therefore, argument that a contral construction of the Act would expose an aggrieved person to the risk of denial of remedy does not hold water, Revision Petition No, 41.7 of 2006 being misconceived is held as incompetent, thus, fails. However, in the peculiar facts and circumstances of the case involving huge loss of lives and having regard to petitioner's .quest since the year 2006 for a remedy, it would be expedient to convert this petition into a Constitutional petition for decision on merit. Office, upon payment of Court fee, shall assign number and post the petition for hearing before any available Bench after Ramdan.