' This reference has come up for hearing in pursuance of an order passed Ch. Muhammad Amjad Khan, learned District and Sessions Judge, ahimyarkhan dated 10-7-1990.
2. The facts leading to this reference are brief and uncontested. The sessions cases bearing Nos.196 and 220 of 1989 were/are pending adjudication in the Court of learned Addl. Sessions Judges 1V and VII, Rahimyarkhan while Sessions cases bearing Nos.56 and 17 of 1990 were/are pending in the Court of learned Sessions Judge, Rahimyarkhan. Mr. Faqir Muhammad Shad, learned Public Prosecutor submitted an application for the transfer of the cases noted above to the Special Court for "Suppression of Terrorist Activities", Bahawalpur on the ground that automatic fire-arms of prohibited bore were used in the commission of offence and so these Sessions cases were wholly outside the jurisdiction of Sessions Courts and were triable before the Special Courts constituted under the "Suppression of Terrorist Activities (Special Courts) Ordinance, 1974, Act XV of 1975"
(hereinafter referred as Act). The learned Sessions Judge by means of order noted above sent a reference for seeking appropriate order from this Court.
3. The learned AA.-G. Appearing on behalf of the Sate submitted that the Act came into force w.e.f, 1975. It was urged that under section 4 of the Act, the offences mentioned in the Schedule were made triable exclusively by the Special Court. According to him in proviso to section 4 ibid it was laid down that section 4, shall not be construed to require the transfer of a case to Special Court which might be pending in the Court of general jurisdiction immediately before the constitution of the Court. It was contended that by virtue of notification No,8-22/H-SPL-III/86 dated 1-10-1986 Special Courts were constituted for the cases pertaining to Rawalpindi, Multan and Faisalabad Divisions. The Special Court at Multan was empowered to try the cases relating to Multan, Bahawalpur and D.G.Kan Divisions. He added that by virtue of another notification No,8-22 H/SPL.III P. 86(11) dated 19-4-1990 the Governor of Punjab in exercise of the powers under subsection (2) of section 3 of the Act was pleased to constitute with immediate effect 8 Courts specifying their jurisdiction and place of sitting. By another notification dated 5-5-1990 the Governor of Punjab in exercise of powers under subsection (2) of section 3 of the Act was pleased to constitute with immediate effect the following special Court with its jurisdiction and place of sitting noted below:- Name Jurisdiction Place of sitting Mr. Fakhar-ud-Din Bahawalpur Division. Bahawalpur.
Siddiqui.
' Relying upon these notifications the learned AA.-G. Represented that it was clear that Special Court relating to Bahawalpur Division was constituted in 1986. The Sessions cases noted above were sent for trial before the Courts in 1989 and 1990 and so the Courts of general jurisdiction had no power to try these cases.
4. The arguments put forth by the learned A.A.-G. Were adopted by the learned counsel for the complainant.
5. On the contrary, Sardar Ahmad Khan, Advocate learned counsel appearing on behalf of the accused vigorously controverted the stance of the learned AA.-G. It was contended that the Act was a special Act. It had the effect of taking away the jurisdiction of ordinary Courts in relation to sessions cases. Therefore this Act was to be given strict construction. According to the learned counsel it was clear from the proviso to section 4 of the Act that the cases which were pending in any Court before the constitution of Special Court were to be tried by the learned Sessions and Addl. Sessions Judges. Stress was placed on the words constitution of the Court in proviso to section 4 of the Act. According to the learned counsel the Special Court for the purposes of Bahawalpur Division was constituted on 5-5-1990, so under proviso to section 4 of the Act, the cases are not to be transferred to Special Court for trial.
6. Since the matter was of a far-reaching importance and involved the interpretation of the Act, I asked Mr. M.M. Bhatti, Senior Advocate of the Supreme Court and Mr. Jaffar Hashmi, Advocate High Court to assist the Court as amicus curiae.
7. Mr. Jaffar Hashmi submitted that the matter was to be determined by the principle of organic interpretation. According to him the Act was a special Act and was intended to suppress the acts of sabotage and terrorism by providing speedy trial in respect of scheduled offences. Under section 4 of the Act, it was provided that the Special Court shall have exclusive jurisdiction to try the offences which were enumerated in the Schedule to the Act. In such a situation it was to be kept in view that the purpose behind the Act was to take away the trial of scheduled offences from the Court of general jurisdiction and entrust it to Special Court. According to the learned counsel in such circumstances the intention was clear that the general Courts had no jurisdiction to try these cases. Reliance was placed on Bahadur v. Mirza Abdul Qayyum and another (PLD 1969 Lahore 636), Zabtey Khan v The State (PLD 1972 Lahore 196) and Ishtiaq Ali v. Superintendent of Jail, Sheikhupura (1989 P. Cr.LJ 511).
8. Mr. M.M. Bhatti, Advocate appearing as amicus curiae submitted that from the examination of section 4 of the Act it was clear that the Special Court was a Court of exclusive jurisdiction and so these cases had to be referred to it.
9. I have heard the learned counsel for the parties at a considerable length and was benefited from the illuminating arguments of the learned counsel appearing as amicus curiae. In order to appreciate the contentions of the parties it will be convenient to examine section 4 of the Act. It reads as under:- "Jurisdiction of Special Court.--(1) Notwithstanding anything contained in the Code, the scheduled offences shall be triable exclusively by a Special Court: ' Provided that this section shall not be construed to require the transfer to a Special Court of any case which may be pending in any Court immediately before the constitution of the Court.
(2) If, in the course of a trial before the Special Court, the Court is of opinion that any of the offences which the accused is alleged to have committed is not a scheduled offence, the Court shall record such opinion and try the accused only for such offence, if any, as is scheduled offence."
' 9-A. The answer to reference pertains to the interpretation of proviso to subsection (1) of section 4 of the Act. It will be appropriate, at this stage to examine the principles dealing with the construction of proviso in the statutes. Dealing with this Craies in his celebrated work, the Construction of Statutes law has enumerated the following principles. "The effect of an excepting or qualifying proviso, according to the ordinary rules of construction, is to except out of the preceding portion of the enactment, or to qualify something enacted therein, which but for the proviso would be within it; and such a proviso cannot be construed as enlarging the scope of an enactment when it can be fairly and properly construed without attributing it to that effect."
10 "When one finds a proviso to a section", said Lush, J. In Mulins v. Treasurer of Surrey, "the natural presumption is that, but for the proviso, the enacting part of the section would have included the subject matter of the proviso."
11. Dealing with this question in Clay Centre State Bank v. Mc. Kelvie (19 Fed. (2) (308), it was held:-- "Its grammatical and logical scope is confined to the subject-matter of the principal clause....While it is sometimes used to introduce independent legislation, the presumption is that it is used in accordance with its primary purpose and refers only to the provision to which it is attached."
12. In another case, Mobile Liners v. Mc. Connell (220 Ala 562, 126 to 626), was held:- "If there is any doubt about an exception or proviso in that statute that must be judged on the assumption that the rule is broader than the exception. All doubts and implications should be resolved in favour of the rule."
' Said the possible effect of extending the scope of a proviso is pointed out in Dunn Bryan (77 Utah 604, 299 Pac. 253).
"Since the office of a proviso is not to repeal the main provisions of the ' Act but to limit their application, no proviso should be so construed as t destroy those provisions."
13. In Surinder Kumar v. State of Haryana (1979) 81 Punjab LR 331 (FB), was held: "If a proviso is capable of a wider connotation and is also capable of narrower connotation, and if the narrower connotation brings it within the purview of the section then the Court must prefer the narrower connotation rather than the wider connotation; of the two possible interpretations, the Court should prefer that one which brings it within the purview of the section."
14. From the fore-going examination, the following principles for the interpretation of proviso emerge: that proviso excepts and deals with a case which otherwise would have fallen within the language of main enactment; that for the purpose of its construction the whole of the Act is to be taken into consideration and a strict construction is to be accorded to proviso which should keep it within the ambit of substantive provisions.
15. Bearing these principles of constructions in mind, I herein to proceed to examine the proviso to subsection (1) of section 4 of the Act. It is clear from the preamble that this Act was promulgated to provide for the speedy trial of offences mentioned in the Schedule. The purpose of the Act was in the word of preamble, "to suppress the Act of sabotage, subversion and terrorism". The Special Court was to be constituted under Section 3 of the Act. Section 3 provided for the constitution of Special Court and also prescribed the qualifications for the appointment of special Court. It further prescribed that the Federal Government has to constitute the Special Court or Courts. The Provincial Government was also given powers to constitute the Courts accordance with the directions of Federal Government.
16. Next comes the relevant section i.e, section 4. It comprises of subsections. Under subsection (1), the Special Court was made the Court o exclusive jurisdiction in relations to trial of scheduled offences. Subsection (1 was followed by proviso by which the Sessions cases pending in the Court general jurisdiction immediately before the constitution of Special Courts, were excepted from their transfer to Special Courts. It is noteworthy that subsection (2) deals with the powers of the special Court when it is of opinion that any of t offences of which the accused is charged is not a scheduled offence, the Court empowered to record such opinion and try the accused for a such offence, if an as is the scheduled offence. Section 5 of the Act deals with the procedure to followed by the Special Court. Section 6 ibid deals with the powers of the Cou, while section 7 provides appeals to the High Court against the orders of Special. Court.
17. From the fore-going examination, it is quite clear that this Act is sell contained one, makes Special Courts, the Court of exclusive jurisdiction relations to trial of scheduled offences, the jurisdiction of general Courts constituted under different statutes with respect to trial of scheduled offences is wholly taken away. Seen from this background, the meaning of proviso becomes clear.
The object of the proviso was not to disrupt the proceedings of Sessions cases pending in the Court of general jurisdiction before the constitution of the Court to end in order to ensure the continuity of the trials. The next question which arises is what is meant by the constitution of special Court? The Special Court is defined in clause 'c' of subsection (2) of the Act. It means the Special Courts constituted under section 3 of the Act, while section 3 deals with the constitution of Court or Courts for whole or part of Pakistan. It further provides that the Federal Government and Provincial Government may constitute Special Court or Courts consisting of a person who is qualified under subsection to be appointed as a Special Court. This section also provides that the Special Court shall sit at such place as the Government constituting it may by Notification in official Gazette specify in this behalf. It is thus clear that distinction between a `Judge' and 'Special Court' has not been highlighted in section 3. Even otherwise the words 'Court' and the 'Judge' are interchangeably used for each other. The meanings of these two, however are different. The 'Court' is place where the justice is judicially administered. The term 'Court' has been defined in Black's Law Dictionary in the following words:- "Court. A space which is uncovered, but which may be partly or wholly inclosed by buildings or walls. When used in connection with the street, indicates a short street, blind alley, or open space like a short street inclosed by dwellings or other buildings facing thereon. A legislative assembly.
Parliament is called in the old books a Court of the king, nobility, and commons assembled. This meaning of the word has also been retained in the titles of some deliberative bodies., such as the "General Court" of Massachusetts, i.e, the legislature.
' The person and suit of sovereign; the place where the sovereign sojourns with his regal retinue, wherever that may be. The English government is spoken of in diplomacy as the Court of St. James, because the palace of St. James is the official palace.
' An organ of the government, belonging to the judicial department, whose function is the application of the laws to controversies brought before it and the public administration of justice.
The presence of a sufficient number of the members of such a body regularly convened in an authorised place at an appointed time, engaged in the full and regular performance, of its functions. A body in the government to which the administration of justice is delegated. A body organized to administer justice, and including both judge and jury. An incorporeal, political being, composed of one or more Judges, who sit at fixed times and places, attended by proper officers, pursuant to lawful authority, for the administration of justice. An organised body with defined powers, meeting at certain times and places for the hearing and decision, causes and other matters brought before it, and aided in this, its prope business, by its proper officers, viz., attorneys and counsel to present an manage the business, clerks to record and attest its acts and decisions and ministerial officers to execute its commands, and secure due order I its proceedings.
' The words "Court" and "Judge" or 'Judges" are frequently used in statutes as synonymous. When used with reference to orders made by the Court or judges, they are to be so understood."
' In the same dictionary, "Judge" is defined in the following words:-- "Judge. An officer so named in his commission, who presides in some Court; a public officer, appointed to preside and to administer the law in a Court of justice; the chief member of a Court, and charged with the control of proceedings and the decision of questions of law or discretion."
' The distinction between the word "Judge" and "Court" came into consideration in Arbab Hassan v.
Government of Pakistan and another (PLD 1976 Supreme Court 315). It will be worth quoting passage from the judgment of his Lordship per Muhammad Gul, J.(as then he was):-- "It would now be convenient to consider whether by virtue of clause (5) which expressly excludes the Supreme Court, a High Court and a Court Martial from the definition of "persons", with a view to exempting these institutions or bodies from the writ jurisdiction of a High Court under the Article, would by implication also exempt the Judges or officers who man these Courts? It is perfectly true that there cannot exist a Court without a Judge and indeed Judges are structural components of Courts. It may also be conceded readily that the terms Judge and Court are often used interchangeably as synonymous. But this is not to say that the distinction between a Judge as an individual and the Court as seat of justice as an institution is completely obliterated. The two remain distinct entities, and this distinction is manifest even in the excerpt from the American Jurisprudence relied upon by the learned Attorney-General and reproduced in the judgment of my Lord the Chief Justice. Generall speaking a Judge is properly identified with the Court, in relation to something done in exercise of the jurisdiction of the Court. Otherwise hi personality remains distinct and separate from the Court. As individual he 'remains subject to the laws of the land like the rest of the citizenry save when expressly exempted. Therefore, I regret to be unable is subscribe to the broad proposition canvassed by the learned Attorney-General that a Judge is to be completely identified with the Court, for the purpose of saving provision in clause (5) of Article 199. In my humble opinion a Judge becomes synonymous with the Court only when he acts in exercise of the jurisdiction of the Court; the synonymy does not go beyond that; and the saving clause must be read as confuted in relation to order or judgment by a Judge in exercise of the jurisdiction of the Court. It would, if I may say so with respect, be unreasonable to extend it to the person of the Judge completely and for all purposes. For instance, if a Judge were to illegally confine his domestic servant for misbehaviour, a writ of habeas corpus would certainly lie against the Judge. Here the act complained of is not that of a Judge but is of an incensed master who happens to be a Judge and the exception cannot reasonably be extended to such an act. If on the other hand a Judge were to try and convict his domestic servant and commit him to prison, in exercise of the jurisdiction of the High Court, he will be acting as a Court and writ of habeas corpus will not lie because of saving as clause(5)."
18. From the foregoing analysis of the Act, it is quite clear to me that Special Court referred in proviso for scheduled offences relating to Bahawalpur Division was constituted on 1-10-1986 by means of notification noted above. Thereafter the Provincial Government had been issuing notifications for the purpose of redefining the areas of jurisdiction of the Special Courts constituted under the aforenoted notifications. I have therefore, no hesitation in coming to the conclusion that the contentions of the learned counsel for the accused are untenable. The cases noted above pertains to year, 1989, were challaned before the learned Addl. Sessions Judges/Sessions Judge in 1989. Therefore, they are not within the jurisdiction of the learned Sessions Judge as well as the learned Addl. Sessions Judge.
19. Having concluded above that the Special Court-was constitued for the purpose of trial of scheduled offences relating to Bahawalpur Division in 1986, I further hold that these Sessions cases shall be deemed to have been transferred to Special Court. The learned Sessions/Addl. Sessions Judges are directed to send the record of these cases to Special Court forthwith.