By means of instant revision petition filed under Section 435/439, Cr.P.C. read with Section 561-A, Cr.P.C. the petitioner has made the following prayer:- "In view of the above submissions, it is respectfully prayed that titled Criminal Revision may very kindly be accepted and the impugned order dated 16.01.2019 passed by the learned Special Judge Anti-Terrorism Court No.2, Multan may kindly be set aside and the application u/s 227 Cr.P.C. for amendment of charge sheet for adding section 336 B, PPC & application u/s 540, Cr.P.C. for summoning of Malik Nazar Inspector/Investigating Officer & Muhammad Riaz, Inspector/Investigating Officer may kindly be accepted to meet the ends of justice".
2. The revision petition in hand came up for hearing before a learned Division Bench of this Court at Multan Bench on 06.02.2019 where the Office raised an objection qua maintainability of filing of revision petition against the order of the learned Special Judge Anti-T errorism Court/learned trial court. The matter was taken up on judicial side and keeping in view two divergent judgments passed by two Full Benches of this Court , the learned Division Bench was pleased to forward it to the Hon'ble Chief Justice for constitution of a 'Larger Bench' to resolve it through an authoritative pronouncement qua the subject, being an appropriate remedy permissible under the law. In view of the aforesaid reference, the Hon'ble Chief Justice vide order dated 26.03.2019 constituted the instant 'Larger Bench'.
3. Perusal of the record reveals that the petitioner filed two applications before the learned Special Judge Anti- Terrorism Court No.2, Multan: amongst those, one was pertaining to application under Section 227, Cr.P.C. with a prayer to amend the charge already framed against the accused persons; whereas the other application was preferred under Section 540, Cr.P.C. for summoning of Investigating Officers namely Nazar Muhammad, Inspector and Riaz Ahmad, Inspector , who had investigated the case bearing FIR No.247, dated 01.05.2014, offence under Sections 302, 436, 297, PPC, read with Section 7 of Anti-T errorism Act, 1997, registered with Police Station, Luddan, District Vehari, at the instance of the petitioner , which is the subject matter of instant revision petition. The said applications filed by the petitioner were dismissed by the learned trial court vide consolidated order dated 16.01.2019, which was assailed through the instant revision petition and ultimately the same is the subject matter before this 'Larger Bench'.
4. Today at the very outset, learned counsel for the petitioner states that he would not press this petition to the extent of dismissal of his application filed under Section 227, Cr.P.C. on the ground that the same can be re- agitated at any stage during the course of proceedings before the learned trial court. However , he maintained to argue the case on merits to the extent of application under Section 540, Cr.P.C. Hence, in view of the statement of learned counsel for the petitioner , the petition in hand to the extent of application under Section 227, Cr.P.C. stands dismissed as being not pressed.
5. Now there remain two aspects of the matter to be dealt by us; one pertaining to maintainability of the revision petition and the other relating to interpretation of Section 540, Cr.P.C. with reference to the application moved by the petitioner before the learned trial court.
6. Learned counsel for the petitioner in support of the question qua maintainability of the revision petition argues that High Court is the highest Court of the province being a creature of the Constitution under Article 175 of the Constitution of Islamic Republic of Pakista n, 1973. Adds that the Constitution has given mandate to the High Court to provide supervision/superintendence over the courts subordinate to it in the said province. Learned counsel submits that under Article 202/203 of the Constitution, the High Court is fully empowered to frame rules and orders to regulate the proceedings in the subordinate courts of the province. It is next submitted that all courts including, civil as well as, criminal courts are under the direct supervision/superintendence of High Court, as per mandate of the Constitution. It is further argued that court constituted under the Anti-T errorism Act is in all fairness a court, which is recognized as a criminal court. Learned counsel adds that in terms of Section 6 of the Criminal Procedure Code, 1898, though the Court constituted under the Anti-T errorism Act, 1997, is not classified as a criminal court, however , due to its functioning, it is a criminal court, hence, directly comes within the supervision of High Court, therefore, in all eventualities it is a crimi nal court subordinate to High Court. It is lastly argued that the Criminal Procedure Code is fully applicable durin g the proceedings carried out before Anti-T errorism Court, with certain limitation. It has been further submitted that the revision under section 435/439 Cr.P.C. can be pressed into against any interim order passed by the court unless it is specifically barred. While referring Section 32 of the Anti- Terrorism Act, 1997, it is argued that it creates a demarcation regarding the applicability of Criminal Procedure Code as a general law in proceedings before Anti-T errorism Court. In support of his version, learned counsel for the petitioner has placed reliance upon the cases of "Javed Iqbal and others Versus The State" (2016 SCMR 787) and "Assadullah and another V ersus The State" (2016 P . Cr.L.J. 1698).
7. So far as the second limb of the matter in hand is concerned, learned counsel for the petitioner submits that the petitioner being complainant of the above referred case, moved an application under Section 540, Cr.P.C. for summoning of the Investigating Officers namely Nazar Muhammad, Inspector , as well as, Riaz Ahmad, Inspector , but the same has been declined by the learned trial court without taking into consideration the material available on record in its true perspective. Learned counsel submits that bare reading of Section 540, Cr.P.C. reflects that the said provision has unlimited scope of its application, hence, can be pressed into at any stage leaving no embargo, therefore, only consideration for the Court is to evaluate gist of material in existence for just decision of the case. It is contended that both the Investigating Officers carried out investigation in the aforesaid case and their statements before the learned trial court would certainly advance the case of the prosecution enabling the learned trial court to decide the lis according to the dictates of justice. Further contends that the word "just decision of the case' has been used by the legislature in Section 540, Cr.P.C. which denotes that if any instance/circumstance which could be instrumental for the just decision of the case in accordance with dictates of justice is available, court is under bounden duty to exercise powers under section 540 Cr.P.C to call for evidence while providing equal opportunities.
Learned counsel submits that the word 'just decision of the case' is of wide conno tation and that cannot be limited just with a stroke of pen on one pretext or the other not justiciable under the law and has to be construed liberally .
8. Syed Farhad Ali Shah, Ali Zia Bajwa and Mian Ali Haider , Advocates, appointed by Court as Amici Curiae, also supported the arguments advanced by learned counsel while concurring the same in letter and spirit.
9. Mr. Shan Gull, Additional Advocate General, who entered appearance on Court's call, has almost supported the version advanced by learned counsel for the petitioner. While maintaining his arguments, he elaborates that this Court has the superintendence/supervisory mandate besides being superior Court of all the proceedings before the Anti-Terrorism Court; therefore, there cannot be any point in issue to ignore a statutory provision under codified law. Moreover, an alternative remedy under Article 199 of the Constitution of Islamic Republic of Pakistan in the shape of mandamus or certiorari is not maintainable against the orders passed by a court of criminal jurisdiction. He further argues that though there is very bleak difference qua issuance of writ of mandamus or certiorari, but these writs in all eventualities are brainchild of constitutional jurisdiction under Article 199 of the Constitution, which cannot over-ride a provision of general law to interfere the matter to do the right and undo the wrong in the course of administration of justice in a criminal matter when there is an express provision available under the general law. It is next argued that even as a general principle the jurisdiction of the Superior Courts cannot be ousted unless the same has been done in express and clear intendment. So far as Fazilat Bibi's case reported as (PLD 2013 Supreme Court 361) is concerned, it has been argued that the same is not applicable in the given circumstances in any manner having no nexus with point in issue before us.
10. We have heard the learned counsel for the petitioner , learned Additional Advocate General on Court' s call & amici curie appointed by the Court at length and gone through relevant record.
11. It is an admitted fact that two divergent views are already in the field in two judgments rendered in Aziz Ahmad' s Case reported as (PLJ 2018 Cr.C. 524) and Muhammad Jawad Hamid' s case reported as (PLD 2018 Lahore 836). Hence this 'Larger Bench' has been constituted to record an authoritative judgment on the subject.
Perusal of record available on file reveals that the Court constituted under the Anti-T errorism Act, 1997 is brainchild of an enactment, which may be called as Anti-T errorism Act, 1997. The intent of legislator was to frame a law to meet the "law and order situation" prevailing in the country due to very specific reason as there was a wave of terrorism which in fact had paralyzed the writ of the State, hence, such enactment was framed by the legislature to cope with the alarming situation prevailing in the country .
12. Though the term "Criminal Court" has not been defined anywhere, but in general connotation, it means a Court as mentioned in the Criminal Procedure Code.
As per Black' s Law Dictionary , the term "Criminal Court" has been defined as under:- "Criminal Court. A court with jurisdiction over criminal matters".
In the Webster 's unbridged dictionary , the said term as been defined as :- "A Court of law in which criminal cases are tried and determined".
As per Law Dictionary , the term "Criminal Court" has been defined as follows:- "Criminal Court" means a Court having ordinary criminal jurisdiction"
13. Chapter-II of the Criminal Procedure Code relates to the constitution of Criminal Courts and the same has been classified in section 6 of the Criminal Procedure Code. Perusal of the schem e of law denotes that for every District a Sessions Division/Court of Magistrate has been notified by the High Court under High Court Rules and Orders followed by the Courts of Magistrate. There are three classes of Magistrate functioning in each of the District and T ehsil being Judicial Officer with powers:- (i). Magistrate of the first class; (ii). Magistrate of the second class; and (iii). Magistrate of the third class.
The aforesaid classification of the office of Magistrate have been further classified into (i) Judicial Magistrate and
(ii) Executive Magistrate. Perusal of section 6 of the Criminal Procedure Code though classifies courts of criminal jurisdiction as stated above but there are other courts though are exclusively dealing with criminal matter but are not classified under section 6 of Criminal Procedure Code; such as courts constituted under Anti-T errorism Act, 1997, courts established under Drugs Act, courts established under The National Accountability Ordinance, 1999, even banking courts specifically dealing with criminal matters are not classified, as part of Criminal Procedure Code being a criminal court. Therefore, it seems imperative for this Court to evaluate the vires of the Anti-T errorism Act, 1997 deeming it as a criminal court. It is established principle of law that to evaluate any legislation, the preamble plays a vital role in its evaluation to ascertain the intent of legislation. Preamble of any of the enactment is always considered a key to evaluate the very purpose of its existence, hence, it is always considered as "grundnorm" of legislation. It seems advantageous to reproduce preamble of the Anti-T errorism Act, 1997 which reads as follows:- Preamble:- "An act to provide for the prevention of terrorism, sectarian violence and for speedy trial of heinous offences"
Similarly , jurisdiction and definition clause further reveals its scope, intent, purpose and promulgation of legislation, which is reproduced as under:- Short title, extent and commencement --(1) This Act may be called the Anti-T errorism Act, 1997.
(2).It extends to the whole of Pakistan. (3).It shall come into force at once.
2. Definition. --In this Act, unless there is anything repugnant in the subject or context,-- (a)
(b)
(c) "Code" means the Code of Criminal Procedure, 1898 (Act V of 1898); Section 32 of Anti-T errorism Act provides overriding effect of the Act and status of the courts being court of Sessions. The same is re-produced as under:-
32. Overriding effect of 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 shall, in so far as they are not inconsistent with the provisions of this act, apply to the proceedings before [an Anti - terrorism Court, and for this purpose of the said provisions of Code, [Anti-Terrorism Court] shall be deemed to be a Court of Session.
(2) In particular and without prejudice to the generality of the provisions contained in sub section (1), the provisions of section 350 of the Code shall, as far as may be, apply to the proceedings before [an Anti-terrorism Court] and for this purpose any reference in those provisions to a Magistrate shall be construed as a reference to [an Anti-terrorism Court].
Bare perusal of preamble, jurisdiction, definition clause and overriding effect of the Anti-T errorism Act, 1997, as provided under Section 32, it makes it abundantly clear that as a general principle the Criminal Procedure Code is applicable mutatis mutandis to the proceedings carried out before the special court, however , there is a departure from the applicability of Criminal Procedure Code in certain respect. The deviation from the general principle has been made by the legislature with an intent to make it more speedy, potent and effective to ensure administration of justice. The law relating to bail, filing of appeal and other ancillary matters to some extent are applicable in a different mode and manner as provided in Criminal Procedure Code. From the facts narrated above and perusal of law on the subject, it has been established that a court constituted under the Anti-Terrorism Act is a court of criminal jurisdiction to deal with matter of heinous nature, hence, it has been given precedence over certain provisions of Criminal Procedure Code in some aspects because of severity of issues before it being of serious nature but the facts remains that the jurisdiction of this Court is broadly regulated by application of Criminal Procedure Code in its proceedings being a general law on the subject. Otherwise it is now established that jurisdiction of superior courts with reference to application of general law cannot be ousted until and unless it is specifically barred by a provision of special enactment. As far as remedy available against interim orders of proceedings before a court constituted under Anti-Terrorism Act is concerned, the same is entertainable by this Court in its revisional jurisdiction while exercising powers under section 435/439 Code of Criminal Procedure. This Court is conscious of the fact that mechanism provided for the bail and appeal is though departure from the general principal but as said supra the same is squarely because of nature of the matters being dealt by special courts relating to heinous offences. Generally speaking, as far as the application of principle of administration of justice is concerned, these are equally applicable in all courts of criminal jurisdiction irrespective of being the court constituted under Anti-Terrorism Act, Accountability Act, Banking Act, Drugs Act or Court of Sessions but the time limit might be at variance qua certain remedies which has been specifically mandated by the Special Statue which is squarely within the domain of law makers, while framing law on the subject. Be that as it may, it is now established from the plain reading of language of the provision of Section 435/439 Cr.P.C, as well as, interpretations of superior courts in various salutatory judgments that the revisional jurisdiction of the High Court is very wide in nature and it squarely fulfills all the requirements of the law on the subject in accordance with the dictates of justice for the safe administration of criminal justice. Section 435, 439 Cr.P.C. are reproduced as under:-
435. Power to call for records of inferior Courts. (1) The High Court or any Sessions Judge [....], may call for and examine the record of any proceeding before any inferior Criminal Court situate within the local limits of its or his jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of such inferior Court and may, when calling for such record, direct that the execution of any sentence be suspended and, if the accused is in confinement, that he be released on bail or on his own bond pending examination of the record".
Provisions of Section 439, Cr .P.C. read as follows:-
439. High Court's powers of revision. (1) In the case of any proceeding the record of which has been called for by itself, [....] or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 423, 426, 427 and 428 or on a Court by section 338, and may enhance the sentence; and, when the Judges composing the Court of Revision are equally divided in opinion, the case shall be disposed of in manner provided by section 429.
(2) No order under this section shall be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by pleader in his own defence.
(3) Where the sentence dealt with under this section has been passed by Magistra te [....], the Court shall not inflict a greater punishment for the offence which, in the opinion of such Court, the accu sed has committed, than might have been inflicted for such offence by Magistrate of the first class.
(4) Nothing in this section shall be deemed to authorize a High Court:
(a) to convert a finding of acquittal into one of conviction; or
(b) to entertain any proceedings in revision with respect to an order made by the Sessions Judge under section 439-A.]
(5) Where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed.
(6) Notwithstanding anything contained in this section, any convicted person to whom an opportunity has been given under sub-section (2) of showing cause why his sentence should not be enhanced, shall, in showing cause, be entitled also to show cause against his conviction.
It is now an established principle of law that as a general application of law revisional jurisdiction of High Court is available in all proceedings carried out before special courts until and unless it is specifically ousted by a special enactment. Guidance in this regard is sought from the dictum of law laid down by august Supreme Court of Pakistan in the case of 'Habib Bank Ltd. Versus The State and 6 others' (1993 SCRM 1853), wherein it has been held as follows:- "---Ss. 10, 2 (b), 6 (1) 5(8) & 12---Criminal Procedure Code (V of 1898), Ss. 1 (2), 5 (2) 6, 435 & 439-- - Revision against the order of Special Court before High Court---Competency---Where the Ordinance is silent about the conduct of the proceedings of a trial, the provisions of Code of Criminal Procedure, 1898, would apply---Special Court being a Court inferior to the High Court, powers under Ss. 435 & 439, Cr.P.C. to check the correctness, legality or propriety of any other finding or order recorded or passed would not stand excluded---Powers of High Court under Ss. 435 & 439, Cr.P.C. remained intact in spite of prohibitory and negative provisions contained in S. 10 of the Ordinance.
While dealing with a similar issue, the august Supreme Court of Pakistan in the case titled "Abdul Hafeez Versus The State" (PLD 1981 Supreme Court 352), has held as follows:- "---Ss. 27 & 31 read with Criminal Procedure Code (V of 1898, Ss. 435 & 439---Revisional jurisdiction of High Court in cases under Drugs Act--High Court, held, simultaneously a Court of appeal as well as revision and can not only exercise appellate powers but also those under S. 439 and can enhance sentence passed by Drugs Court".
Moreover , in Habib Bank' s case cited supra, at page 1863, it has been observed by the august Supreme Court of Pakistan as under:- "The revisional authority of High Court embodied in sections 435 and 439 of the Code has not been taken away by express or clear terms. The High Court has not been stripped off all powers by this Ordinance. The High Court has been enjoying certain powers by the Ordinance and this special enactment has close connection with the High Court. The ouster of jurisdiction must be expressed in clear and unqualified words. The Ordinance has not completely ousted the jurisdiction of the High Court in all respects and section 10 is to be interpreted in limited sense. The provision of section 10 of the Ordinance cannot be so construed so as to take away the normal jurisdiction of the High Court. The words are to be construed in a reasonable and judicious manner . The revisional jurisdiction cannot be curtailed by implications. The rule laid down by this Court in Abdul Hafeez' s case (supra) will also apply to the cases under the Ordinance".
While seeking guidance from the above referred judgments of the august Court, it is abundantly clear that in all eventualities Anti-Terrorism Court is a court of criminal jurisdiction subordinate to High Court. This aspect has been further highlighted in the salutary judgment of the august Supreme Court of Pakistan in Mehram Ali's case titled "Mehram Ali and others Versus Federation of Pakistan and others" (PLD 1998 Supreme Court 1445), wherein while dealing with a similar question, the august Supreme Court of Pakistan has been pleased to observe in the following terms:-
(n) Constitution of Pakistan (1973) ----------------- Arts. 175, 202 & 203---Establishment and jurisdiction of Courts-- Framework---Words "Such other Courts as may be established by law" employed in Art.175(1) of the Constitution are relatable to the subordinate Courts referred to in Art.203 of the Constitution -- Any Court or Tribunal which is not founded on any of the Articles of the Constitution, cannot lawfully share judicial power with the Courts referred to in Arts.175 & 203 of the Constitution ---Supervision and control' over the subordinate judiciary vests in High Courts, which is exclusive in nature, comprehens ive in extent and effective in operation-- -Any Court or Tribunal which is not subject to judicial review and administrative control of the High Court/or the Supreme Court does not fit in within the judicial framework of the Constitution -- Different laws though can validly be enacted for different sexes, persons in different age groups, persons having different financial standing and persons accused of heinous crimes, but that does not mean that a parallel Judicial system can be created in violation of Arts. 175, 202 & 203 of the Constitution ---Special Courts can be constituted for trying heinous crimes expeditiously but the same should be within the framework of the Constitution---Courts/T ribunals which are manned and run by executive authorities without being under the control and supervision of the High Court in terms of Art.203 of the Constitution, cannot meet the mandatory requirement of the Constitution.
14. The High Court being a constitutional court has been bestowed powers to provide supervision/ superintendence to all courts in the province subordinate to it. High Court while exercising powers under Articles 202/203 of the Constitution is fully empowered to frame High Court Rules and Orders enabling subordinate courts to regulate their proceedings as ordained by this Court. Besides the constitutional jurisdiction, High Court is also empowered to exercise revisional jurisdiction under the general law while assuming jurisdiction from Sections 435/439, Cr.P.C. to pass any order , which is essential for the "just decision of the case". The legislature has further vested this Court with inherent jurisdiction in terms of Section 561-A, Cr.P.C. with very wide jurisdiction to exercise the same for the advancement of administration of justice.
While summing up the jurisdiction of this Court, it is summarized as:-
(i) Constitutional Jurisdiction under Articles 202 and 203 of the Constitution of Islamic Republic of Pakistan, 1973, to provide superintendence and to frame rules and orders.
(ii) Revisional Jurisdiction under Sections 435/439, Cr.P.C. to evalu ate/ascertain legality of orders passed by subordinate courts.
(iii) Inherent Powers under Section 561-A, Cr .P.C.
The crux of the matter reveals that the High Court enjoys three-dimensional jurisdictions duly empowered under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, with a specific domain of the Court to entertain cases of extra ordinary nature being it an extra ordinary remedy . It can also entertain any order passed by the courts subordinate to it under Sections 435/439, Cr.P.C. to adjudge its legality and propriety for the "safe administration of justice". It can further assume jurisdiction under Section 561-A, Cr.P.C, again a brainchild of general law to pass any order which is essential for just decision of the case. The jurisdiction bestowed to this Court cannot be taken away in ordinary circumstances until and unless it is specifically barred and that too is having precedence over the general law in the interest of justice. Reliance in this regard is placed upon the dictums of law laid down by the august Supreme Court of Pakistan in the case titled "The State Versus Syed Qaim Ali Shah" (1992 SCMR 2192 ) wherein it has been held:- "Jurisdiction of the superior Courts could not be abolished or ousted unless same was done by express, clear and unambiguous words or clear intendment".
15. For the foregoing reasons rendered by this Court while adjudicating the matter in hand, we are persuaded to hold that Anti-T errorism Court is a court of criminal jurisdiction and in all eventualities is deemed as a court of Sessions. It is further declared that Criminal Procedure Code, 1898, is applicable mutatis mutandis in all proceedings of the court constituted under Anti-T errorism Act, 1997, with certain exceptions highlighted above.
Hence, the revisional jurisdiction of this Court under Sections 435/439, Cr.P.C. is alive and applicable to all the interim orders passed by the courts constituted under the Anti-T errorism Act, 1997.
16. As far as the other limb of the case in hand qua dismissal of application filed by the petitioner under Section 540, Cr.P.C. seeking summoning of Nazar Muhammad, Inspector and Muhammad Riaz, Inspector, is concerned, there is no second cavil to this proposition that the petitioner is complainant of case FIR No.247, dated 01.05.2014, offence under Sections 302, 436, 297, PPC, read with Section 7 of Anti-Terrorism Act, 1997, registered with Police Station, Luddan, District Vehari, in which investigation was carried out by Nazar Muhammad, Inspector, as well as, Riaz Ahmad, Inspector. There is no second cavil to this proposition that both of them are Investigating Officers of the case, hence recording their statements is not only essential to meet the ends of justice, rather it would be advantageous for the learned trial court to arrive at a just and proper decision of the case in hand, which is the consideration of legislature to frame said provision of law. Even otherwise, the provision of Section 540, Cr.P.C. reflects that there is no bar to summon the said witnesses at any stage of trial proceedings. It would be advantageous to go through the said provision of law , which reads as under:- "540. Power to summon material witness or examine persons present .--Any Court may, at any stage of any inquiry , trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re examine any such person if his evidence appears to it essential to the just decision of the case".
18. For the foregoing reasons, we accept this revision petition, as a consequence whereof, the impugned order dated 16.01.2019 passed by the learned Judge, Anti-T errorism Court-II, Multan, is set aside, with direction to the learned trial court to summon both the Investigating Officers namely Nazar Muhammad, Inspector , as well as, Muhammad Riaz, Inspector , record their statements and proceed in the matter strictly in accordance with law .
19. Petition allowed in the aforesaid terms.