S.M. ZUBAIR, J.--Through this constitutional petition, the petitioner Mst. Rehmat Bibi has assailed the order dated 16-3-1992, of Mr Muhammad Aslam Shami, Judge, Special Court, Lahore, constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975, whereby while agreeing with the report of the investigating officer and after hearing the Special Public Prosecutor he discharged respondents 6 to 13 from the case registered against them vide FIR No. 287/91, dated 2-10-1991, under sections 365/365-A/452/342/218/109/34, P.P.C., on the direction of this Court.
2. Brief facts relevant for the decision of this writ petition are that the petitioner filed Writ Petition No. 7622 of 1991, for the recovery of her two sons, namely, Muhammad Rafiq and Muhammad Sharif, from the illegal detention of SHO, P.S. Samanabad and Saadat Mehdi S.I. Of the same police station.
Vide order dated 8-9-1991, two bailiffs were deputed to recover the said detenus. In pursuance of the aforesaid order, the two detenus were recovered and produced before this Court on 9-9-1991.
After recording the statement of the two detenus and the respondents, this Court directed that a case should be registered against the delinquents police officers and others; hence the aforementioned FIR was registered on 2-10-1991.
2A. As the case was exclusively triable by the Judge of Special Court, therefore, the challan was submitted in his Court as required under section 5(1) of Suppression of Terrorist Activities Act, 1975.
Section 5 of the Act is reproduced in extenso for facility of reference:-- "25. Taking of congnizance.-(1) The officer-in-charge of a police station shall complete the investigation and forward directly to the Special Court a report under section 173 of the Code within fourteen days in respect of a case triable by such Court: Provided that the Special Court may extend the time within which such report is to be forwarded in a case where good reasons are shown for not doing so within the time specified in this sub-section.
(2) Any default on the part of an officer-m-charge of a police station, an investigating officer or any other person required by law to perform any functions in connection with the investigation, which results in, or has the effect of delaying the investigation or the submission of the report under sub-section (1), shall be deemed to be a wilful disobedience of the order of the Special Court and dealt with under the la w accordingly.
(3) The Special Court may directly take cognizance of a case triable by such Court without the case being sent to it under section 190 of the Code."
In this case on 16-12-1991, the challan was submitted in the Special Court against the accused persons. As some of the accused were pot arrested; hence the words "incomplete Chillan" were used. The learned Judge on 8-1-1992, took cognizance of the matter under started with the proceeding of the case. Thereafter on 24-2-1992, a report was made for the discharge of the accused and the learned Judge agreeing with the report passed the impugned order, referred to above.
3. This petition was admitted to regular hearing on 5-5-1992 and notice was issued to the respondents. Respondent No. 6 filed a detailed written statement in this case:
4. Learned counsel for the petitioner has contended that the learned Judge, Special Court in haste passed the order which is contrary to the record, as the High Court while directing the registration of the case passed that order that order after recording; the statements of numerous persons and the learned trial Judge did not consider' even any part of the statements before passing the impugned order. He further urged that the learned Judge, Special Court took cognizance on 8-l- 19>92, as contemplated under section 5(1) of the Act and the report submitted by the Police after the taking of cognizance by the Court would not result into discharge of the accused persons and has placed reliance on P.L.D. 1976 Lahore 574, whom in the learned Judges placing reliance on P.L.D.
1973 Lahore 304, held that once the final report is submitted under section 173 of the Code, then the evidence collected by the police after that would be taken into consideration by the Court under section 540 of the Code and not otherwise.
In the end, learned counsel submitted that as police personnel were involved in this case, the I.O.
Wilfully twisted the facts and evidence collected during the investigation and by an elaborate report which amounts to decision of the case submitted report for the discharge of the accused persons to the Special Judge, Special Court. The I.O. By critically examining the evidence collected during the investigation has assumed the function of the trial Court which is not permissible under the law, hence on this score alone, the impugned order is liable to be declared as without lawful authority and of no legal effect.
5. Learned counsel for respondent No.6, on the other hand, has submitted that no doubt the learned Judge took cognizance of the case on 8-1- 1992, on the basis of incomplete challan and thereafter on a final report under section 173, the Court discharged the accused agreeing with the finding of the I.O. Who was a senior officer of the rank of D.S.P., appointed by the D.L-G. Range Crime, Lahore. He submitted that under the Scheme of the Code, there is no concept of discharge, in fact, it was an order of the acquittal of the accused persons as contemplated under section 249- A or section 265-K of the Code, because the I.O. After thorough probe submitted the final report under section 173 of the Code recommending that the charge is groundless, so the accused may be acquitted; hence these proceedings cannot be challenged by way of constitutional petition, because the proper procedure has been given in section 7 of 1975 Act, Suppression of Terrorist Activities (Special Courts) Act, 1975 wherein power has been given to the Provincial Government to file an appeal against that acquittal.
Ch. Muhammad Afzal Wahlah appearing for respondent No. 10 submitted that the writ petition is not competent in the present form, because the impugned order could be assailed through a revision petition under the provisions of the Code, apart from adopting the arguments of the learned counsel for the respondent No. 6.
6. Learned Law Officer, who was present on the direction of the Court for assistance, frankly conceded that the impugned order was passed in haste without application of conscious mind by the learned Judge after taking cognizance of the case on 8-1-1992; hence this order is not sustainable in the eye of law; in the alternative he argued that the trial Court had the jurisdiction to acquit the accused if he finds that the charge is groundless. In the circumstances, though the learned Judge has not specifically mentioned the word 'acquittal', but he might have exercised his powers under the same provision. The Law Officer however, conceded that the writ petition is permissible in this case, because the impugned order can be equated as an administrative order, if it is treated as cancellation of the FIR of the case, though it is not specifically mentioned, by the learned Judge as envisaged by the provisions of the Police Act and Rules.
7. I have examined the respective submissions of the learned counsel at length. Before taking into consideration the various contentions of the learned counsel for the parties, I would like to point out the difference as contemplated by section 5 of 1975 Act and the procedure laid down in the Code itself, which has got the sanction of section 5(2) of the Code, which reads:-- "5(2) All offences, under any other law shall be investigated, be inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force, regulating the manner or place of investigating inquiring into, trying or otherwise dealing with such offences."
As mentioned above, section 5(2), Cr.P.C, contemplates that in all criminal proceedings, the Court will follow the Criminal Procedure Code subject to this condition that the Special Law can prescribe its own procedure for the mode of trial. In the present case, in view of section 5 of 1975 Act, referred to above, the S.H.O, was bound to submit the challan within fourteen days and in compliance with that direction, the challan was submitted on 16-12-1991 on the prescribed form and the mere word that it is an incomplete challan would not make it a report other than a report under section 173, Cr.P.C. The learned Special Court did take the cognizance of the case on 8-1-1992, on which both the parties agree. In these circumstances, the learned Judge could not pass the impugned order unless he records some evidence and then on the move of some accused persons he was competent to decide whether the charge was groundless or not. Reliance in this connection is placed on P.L.D. 1973 Lahore 304. In the present case, neither the police nor the learned trial Judge followed the procedure prescribed by law. It appears the learned Judge without proper application of mind, in haste, passed the impugned order simply to oblige the accused-respondents, who were police personnel; hence the impugned order is mala fide and without jurisdiction.
8. I have minutely gone through the alleged final report submitted by the police officer which is also biased document, because herein every effort was made by the I.O. To nullify the effect of the evidence recorded by this Court while making direction to the police officer to register the case against the respondents. The police officer is not supposed to appreciate the evidence in the manner as it has been done in this case, because it is the prerogative of the Court to decide the case; hence, this order suffers from malice and lack of jurisdiction apparent on the face of it. The contention of the learned counsel for the respondents that the impugned order, which has been styled as discharge order is, in fact, an order of acquittal is also untenable for the reasons mentioned above.
9. The next contention of the learned counsel for the respondents that the impugned order cannot be assailed through Constitutional jurisdiction as revision is permissible, is also devoid of force, because a party against whom an order without jurisdiction has been made may ignore it and may not have it formally set aside in appeal or revision under the statute under which it was purportedly made and this fact will not disentitle him from challenging it in collateral proceedings.
Reliance is placed on P.L.D. 1965 SC 68 and P.L.D. 1976 SC 37.
10. As the impugned order suffers from lack of jurisdiction, tainted with malice and coram non judice: hence this writ petition is accepted and the impugned order is set aside as having been passed without lawful authority and is of no legal effect. The case is remanded to the Special Court for decision in accordance with law. As Mr. Muhammad Aslam Shami, Judge, Special Court, has already expressed his opinion in haste, it would, therefore, not be desirable that he should try this case again. The Home Secretary, Government of the Punjab, Lahore, is directed to entrust the file of this case to some other learned Judge of Special Court for trial in accordance with law.
11. As complicated questions of law and facts are involved in this case, therefore, the parties are left to bear their own costs.