' CH. MUSHTAQ AHMAD KHAN, J.---Ch. Muhammad Sadiq, Advocate, who was a candidate to contest election, to a general seat of the Senate, which had fallen vacant due to the death of Pir Syed Barkat Ahmad Shah, an Ex-Senator, held on 12-1-1994, M/s. Iqbal Ahmad Khan and Malik Hakmin Khan .Respondents Nos.3 and 4 were also candidates, to contest the said election.
Ultimately, however, P.D.F. Took a decision that Malik Hakmin Khan shall be the only candidate on behalf of the Front and hence, party ticket was given to him. Mr. Iqbal Ahmad Khan having been appointed Chairman Council of Islamic Ideology, decided not to contest the election and withdraw himself from the contest on 11-6-1994. As a result of the election, Malik Hakmin Khan, respondent No,4, has been elected as Senator whereas Ch. Muhammad Saddiq, the complainant, before this Court has been defeated.
2. A complaint has been filed in the registry of this Court by Ch. Muhammad Sadiq, Advocate, against Mohtarma Benazir Bhutto, Prime Minister of Pakistan, Mr. Hamid Nasir Chattah, M.N.A. The President (PML(J), Mr. Iqbal Ahmad Khan and Malik Hakmin Khan, the respondents Nos.1 to 4, in this complaint, alleging there in that respondent No,3 was appointed as Chairman Council of Islamic Ideology, as a consideration, to withdraw from the senate election, at the behest of respondents Nos.1 and 2 and in conspiracy amongst all the four respondents, therefore, offence of "corrupt practice" has been committed by all of them which is punishable to imprisonment for two years or with a fine of Rs,5,000 as per provisions of section 62 read with sections 58, 59 and 61(1)(E) of the Senate Election Act, 1975. It is prayed in the complaint that all the respondents may be summoned in this Court by issuance of warrants of arrest, be tried and punished in accordance with law. This complaint was filed in the office on 12-12-1994 after 11-00 a.m. Entered at diary No,972. On the same day, office ordered the return of the complaint, with the objections that the petition is not competent in this Court and signatures of counsel for the complainant wanting on petition. The petitioner as well as his learned Counsel, however, chose not to receive back the returned complaint, therefore, office after waiting for more than two months, submitted the following report to the OSD(J).
"Placed below petition was returned with Objection No, 37 on 12-12-1994 but no one has turned up to receive it back although about two months have gone by.
2. May fix it as an objection case?"
' The OSD(J) vide order, dated 15-2-1995, directed that the case should be placed before one of us (Ch. Mushtaq Ahmad Khan, J.) as an objection case. Consequently, the matter was heard by one of us (Ch. Mushtaq Ahmad Khan, J.) on 16-2-1995, on which date, the petitioner appeared in person and stated that keeping in view the nature of the office objection, it will be proper that this case is directed to be heard by a larger Bench, resultantly, the matter was placed before my Lord, the Hon'ble Chief Justice for Constitution of a larger Bench, who was pleased to constitute the present special D.B. To hear this matter.
3. The case was placed before this Bench on 22-2-1995 but none appeared on behalf of the petitioner, hence, it was adjourned to 27-2-1995 with a direction that the date shall be notified to the petitioner in person as well as his learned counsel. On 27-2-1995 again none appeared on behalf of the petitioner, therefore, the case was adjourned to 1-3-1995 with the same direction. On 1-3-1995, petitioner appeared in person and made a statement that his learned counsel Ch. Muhammad Farooq, is busy before Hon'ble Supreme Court of Pakistan at Islamabad, therefore, the case may be adjourned to 9-3-1995. The prayer was granted and the case was adjourned to the requested date. On 9-3-1995, it was Thursday, the petitioner appeared in person and made a statement to the effect that his learned counsel was not available, therefore, he requested for a short adjournment and under took that in case on the next date of hearing his learned counsel is not available he shall address the argument himself, hence, the case was adjourned to 19-3-1995, with an express order that hearing of the matter shall not be postponed on account of the non- availability of the learned counsel. On 19-3-1995, the petitioner again appeared in person and made a statement that his learned counsel is busy before the Hon'ble Supreme Court of Pakistan at Islamabad, therefore, hearing of the case may be postponed for a date to be fixed during the 2nd week of April, 1995. The request being reasonable was granted and the case was fixed for hearing on 13-4-1995, on which date, again the petitioner appeared in person and made a statement that his learned counsel has gone to appear before the Court of learned District and Sessions Judge, Rawalpindi, to argue a complaint case pending against Mian Muhammad Nawaz Sharif Ex-Prime Minister of Pakistan and prayed that hearing of the matter may be postponed and further that due to the pendency of election petitions filed by the petitioner on the same grounds which have been alleged in the present complaint, it may be directed to be heard along with the election petition. When confronted with the previous history of postponement of hearings of this matter which is still at objection stage and the commitments made by the petitioner as well as his duty towards the Court which is definitely a Superior Court to the Court of learned Sessions Judge at Rawalpindi, the petitioner who himself is a Senior Advocate of this Court, opted to argue the matter himself.
4. In his arguments, the petitioner has taken us through the contents of various provisions of Senate Election Act, 1975 and Criminal Procedure Code and has contended that prima facie it stands established that the respondents have committed offence of corrupt practice, which is punishable with imprisonment for two years or with a fine of Rs,5,000 hence, as per provisions of section 29(2), Cr.P.C. The "High Court", can directly take cognizance of the complaint as such the office objection is frivolous and is not maintainable. He further contended that keeping in view the fact that the petitioner has filed an election petition against respondents Nos.3 and 4, which is pending before the Election Tribunal, which is presided over by a learned Judge of this Court, propriety demands that this complaint is also heard by the High Court more appropriately along with the said election petition, and more so in view of the status of the parties to this complaint, He, hence, prayed that office objection may be overruled and the complaint may be entertained directly by this Court.
5. Mr. Muhammad Asghar Kharl, Advocate, who has represented the learned Advocate-General, Punjab, who has been asked to assist the Court, has contended that the complaint in question is exclusively triable by a Magistrate 1st Class or 2nd Class and not by this Court as per provisions of section 29(2) read with section 5 as well as Schedule II of the Cr.P.C., therefore, the office objection is maintainable and the complaint is liable to be dismissed.
6. In order to appreciate the arguments addressed by the petitioner as well as learned counsel who is representing Advocate-General, Punjab and to decide the issues involved in this matter, it will be appropriate if the relevant provisions on the. Subject and previous case law is taken note of in this order. Consequently, the relevant statutory provisions and resume of the case law is reproduced/given as under:---
(a) SECTIONS 58.
59. 61(11 CLAUSE (E). 62 AND SECTION 76 OF THE SENATE ELECTION ACT. 1975, ' Section 58. Corrupt practice.---A person is guilty of corrupt practice if he---
(a) Contravenes the provisions of section 28;
(aa) files a declaration under subsection (2) of section 11 which is knowingly false;
(b) is guilty of bribery, personation or undue influence;
(c) makes or publishes a false statement:---
(i) concerning the personal character of a candidate or any of his relations calculated to adversely affect the election of such candidate or for the purpose of promoting or procuring the election of another candidate unless he proves that he had reasonable grounds for believing and did believe, the statement to be true; or
(ii) regarding the withdrawal of candidate; or
(iii) submits a false statement of assets and liabilities under section 25;
(d) Calls upon or persuades any person to vote, or to refrain from voting, for any candidate on the ground that he belongs to a particular religion, community, race, caste, sect or tribe;
(e) Knowingly, in order to support or oppose a candidate, lets, lends, employs, hires, borrows or uses any vehicle or vessel for the purpose of conveying to or from the polling station any voter except himself and members of his immediate family; or
(f) Causes or attempts to cause any person present and waiting to vote at the polling station to depart without voting.
' Section 59. Bribery.---A person is guilty of bribery if he, directly or indirectly by himself or by any other person on his behalf---
(1) receives or agrees to receive or contracts for any gratification for voting or refraining from voting, or for being or refraining from being a candidate at, or for withdrawing from, an election;
(2) gives, offers or promises any gratification to any person-- (a) for the purpose of inducing---
(i) a person to be, or to refrain from being, a candidate at an election;
(ii) a voter to vote, or refrain from voting, at an election; or
(iii) a candidate to withdrawn from an election; or
(b) for the purpose of rewarding--
(i) a person for having been, or for having refrained from being a candidate at an election;
(ii) a voter for having voted or refrained from voting at an election; or
(iii) a candidate for having with draw from an election.
' Section 61(1)(e). Undue influence.---A person is guilty of undue influence if he,---
(i) in order to induce or compel any person to vote or refrain from voting, or to offer himself as a candidate, or to withdraw his candidature, at an election, directly or indirectly, by himself or by another person on his behalf.
(e) uses or threatens to use any official influence or governmental patronage; ' Section 62. Penalty for corrupt practice.---Any person guilty of corrupt practice shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to five thousand rupees, or with both.
' Section 76. Limitation for prosecution for corrupt or illegal practices.---No prosecution for an offence under section 58 or section 65 shall be commenced except---
(a) within six months of the commission of the offence; or
(b) if the, election at which the offence was committed is subject to an election petition and the Tribunal has made an order in respect of such offence, within three months of the date of such order.
Sections 5, 29, 194, 526 and relevant portion of Schedule II of the Criminal Procedure Code.
' Section 5(1).---All offences, under the Pakistan Penal Code shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.
(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.
1 2 3 4 5 6 7 8 SectionOffenceWhether the police may arrest without warrant or notWhether a warrant or a summons shall ordinarily issue in the first instance.Whether bailable or notWhether compound able or notPunishment under the Pakistan Penal Code.By what Court triable If punishable with imprisonment for one year and upward but less than 3 years or with whipping not exceeding 40 stripes with or without imprisonment.Shall not arrest without warrant.Summons..Bailable..Not compoundableDittoMagistrate of the first or second clas.
' Section 29.---(1) Subject to the other provisions of this Code, any offence under any other law shall, when any Court is mentioned in this behalf in such law, be tried by such Court.
(2) When no Court is so mentioned, it may be tried by the High Court or (subject as aforesaid) by any Court constituted under this, Code by which such offence is shown in the eighth column of the second schedule to be triable. Section 194.---The High Court may take cognizance of any offence (****) in manner hereinafter provided.
(Nothing herein contained shall be deemed to affect the provisions of any Letters Patent or Order by which a High Court is constituted or continued or any other provisions of this Code).
' Section 526.---(1) Whenever it is made to appear to the High Court:---
(a) that a fair and impartial inquiry or trial cannot be had in any criminal Court subordinate thereto, or
(b) that some question of law of unusual difficulty is likely to arise, or
(c) that a view of the place in or near which any offence has been committed may be required for the satisfactory inquiry into or trial of the same, or
(d) that an order under this section will tend to general convenience of the parties or witnesses, or
(e) that such an order is expedient for the ends of justice, or is required by any provision of this Code; it may order----
(i) that any offence be inquired into or tried by any Court not empowered under sections 177 to 184 (both inclusive) but in other respects competent to inquire into or try such offence;
(ii) that any particular case or appeal, or class of cases or appeals, be transferred from a criminal Court subordinate to its authority to any other such criminal Court of equal or superior jurisdiction;
(iii) that any particular case or appeal be transferred to be tried before itself; or
(iv) that an accused person be (sent) for trial to itself or to a Court of Session.
(2) When the High Court withdraws for trial before itself any case from any Court, ** it shall (**) observe in such trial the same procedure which that Court would have observed if the case had not been so withdrawn.
(3) The High Court may act either on the report of the lower Court, or on the application of a party interested, or on its own initiative."
(C) RESUME OF RELEVANT CASE-LAW: ' In case of "Harish Chandra v. Kavindra Narain Sinha and others" (AIR 1936 All. 830) where a question arose as to whether an offence committed under the Companies Act is triable directly by the High Court, it has been held that High Court has no jurisdiction to take cognizance of the offence unless the case is committed to its by a Magistrate or a complaint is lodged by the Advocate-General under section 194, Cr.P.C. Or the High Court on application under section 526, Cr.P.C. Transfers a case to its own. It has further been held in the above judgment that even otherwise entertainment of a complaint directly by the High Court would deprive the accused persons a right of appeal, therefore, on this score as well the High Court should not entertain a complaint which is also triable by the lower Court. At page 831 of the report, it has been held as under:- ' it seems to us that there is absolutely no conflict between the provisions of section 5 and those of section 29, Cr.P.C. Section 29 merely empowers the High Court, when no Court is mentioned for any offence under any law other than the Indian Penal Code, to try such offences. Section 5(2) on the other hand, lays down that all offences under other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, etc. The mere fact that section 29 empowers the High Court to try such an offence does not show that the High Court can take cognizance of the offence straight off, try the accused and convict him and punish him without following the procedure laid down in the Code. Indeed we are of opinion that there are elaborate rules of procedure laid down in the Code regulating the trial of accused persons, and it is imperative that they should be followed. Ordinarily under section 177 every offence is to be inquired into and tried by a Court within the local limits of whose jurisdiction it was committed. Then a Magistrate is empowered to take cognizance of an offence under section 190. Section 193 lays down how a Court of Session can take cognizance of an offence when the accused had been committed to it by a Magistrate. Section 194(1) then provides that the High Court may take cognizance of any offence upon a commitment made to it in the manner hereinafter provided. The word 'may' has obviously been used to give to the High Court a discretion to take cognizance of such an offence when a commitment has been made to it or to direct that a commitment may be made to the Sessions Court. It does not imply that the High Court can without any commitment made to it, take cognizance of an offence straight off. The reason why the language of section 193 has not been reproduced in section 194 is that there is another method by which the High Court can take proceedings, namely, on an application made by the Advocate-General.
' There would be considerable difficulties if we were to lay down that an application of this kind can be filed in the High Court and the accused person tried straight off here. In the first place, the High Court ordinarily tries accused persons with the aid of a jury, though in certain other cases the procedure may be different. In the next place, an accused person is entitled to a right of appeal when he has been convicted and punished and a large fine imposed upon him. If he is convicted by a Judge of this Court there would be no further appeal. Clauses 16 and 17, Letters, Patent, also do not show that the High Court has any such original jurisdiction as is suggested on behalf of the applicant. We are therefore of opinion that the application made to this Court has been misconceived. It was not a case of the winding up of a company where in the course of the enquiry the Company Judge came to the conclusion that an offence has been committed in which event he may order an enquiry under section 237, Companies Act. The matter is not pending before the High Court at all and the Court has been moved for the first time by applicant. We, therefore, think that if the case were committed to the High Court under section 184(1), Criminal P.C. Or proceedings were started on an application of the Advocate-General under section 194(2), or were transferred to it under section 526, Criminal P.C., then the High Court would have jurisdiction to try the accused; but that it would not have jurisdiction to try the accused merely on an application made under section 85, Companies Act. The answer to the second question referred to us is therefore, in the negative."
' In case of "Muhammad Azhar Hassan v. District Cricket Association" (PLD 1969 Lah. 251), which also arises out of a complaint filed in the High Court regarding commission of offence under the Companies Act, learned Single Judge of this Court made a reference to the case of "Muhammad Azhar Hassan" supra and likewise held that High Court has no jurisdiction to entertain a complaint directly in relation to an offence alleged to have been committed under a special law. In paragraphs Nos.5 to 7 of the judgment at pages 255 to 257 of the report it has been held as under:- -- "It is provided in subsection (1) of section 278 that 'no Court inferior to that of a Magistrate of the first class shall try any offence against this Act etc.' Subsection (3) of section 278 says; 'Notwithstanding anything in the Code of Criminal Procedure, 1898, every offence against this Act shall, for the purposes of the said Code, be deemed to be non-cognizable'. On a plain reading of this section, it appears that the framers of the law did not exclude the operation of the Code of Criminal Procedure except for limited purposes, namely, (a) that an offence under the Companies Act will not be triable by a Court inferior to a Magistrate of first class; and (b) that the offences under the Act shall be non-cognizable. The jurisdiction of the criminal Courts, is, therefore, not excluded expressly or by necessary intendment.
' Sections 28 and 29 of the Code of Criminal Procedure deal with the description of offences cognizable by the Courts. An offence under the Pakistan Penal Code, subject to the provisions of the Code of Criminal Procedure, is triable by the High Court, the Court of Sessions or any other Court which is specified in the eighth column of the Second Schedule. It is provided in section 193 of the Code of Criminal Procedure that a Court of Session shall not take cognizance of any offence as Court of original jurisdiction unless the accused has been committed to it by a Magistrate duly empowered in that behalf. Similarly, under section 194, the High Court is empowered to take cognizance of an offence upon a commitment made to it. The High Court, therefore, cannot take cognizance of an offence under the P.P.C. On a complaint or police report as a Magistrate can do under section 190. This, however, does not affect the jurisdiction of the High Court under clauses 15 to 17 of the Letters Patent.
6. Section 29 of the Code-specifies the Courts by which offences other than these under the Pakistan Penal Code can be tried. It reads: `29.---(1) Subject to the other provisions' of this code, any offence under any other law shall, when any Court is mentioned in this behalf in such law, be tried by such Court.
(2) when no Court is so mentioned, it may be tried by the High Court or subject as aforesaid by any Court constituted under this Code by which such offence is shown in the eighth column of the Second Schedule to the triable.' Thus, if a Court is mentioned in a special or local enactment, by which the offence is created, to have the jurisdiction to try the offence, it is only that Court which can try the offence. If a Court is not specified in the Act, the offences created by the Act can be tried by the High Court or by any Court specified in this behalf in the Second Schedule to the Code.
The Companies Act does not specify any such Court. The offences, therefore, can be tried either by the High Court or by any Court constituted under the Code of Criminal Procedure as shown in the eighth column of the Second Schedule. According to the schedule an offence punishable with imprisonment for one year and upwards, but less than three years, can be tried by a Magistrate of Second Class, and in case an offence is punishable for imprisonment for less than one year, or with fine only, it can be tried by a Magistrate of Third class. Section 278 of the Companies Act, since it provides that no Court inferior to that of a Magistrate of the First Class shall try any offence against the Act, expressly overrides the entries in the second Schedule whereby a Magistrate of Second or Third Class can also try such offences. The jurisdiction of the Magistrates of the First Class to try the offences under the Companies Act is clearly retained. A Magistrate of First Class, is, therefore, competent to try the offence by virtue of section 278 of the Companies Act, read with section 29 of the Code of Criminal Procedure.
7. It is also provided in section 29 that when no Court is specifically mentioned to try an offence created under the Act other than the Pakistan Penal Code it may be tried by the High Court.
Subsection (2) of section 29 of the Code of Criminal Procedure, giving jurisdiction to High Court to try such offences, does not contain the words 'subject to the other provisions of the Code'. A question arises whether the High Court cognizance of an offence on a complaint made to it without following the procedure laid down in the Code for invoking the jurisdiction of the High Court.
The Companies Act does not provide for the manner, place of offence under the Act. The inquiry and the trial of the offences under the Act, therefore, had to be in accordance with the provisions of the Code of Criminal Procedure. Under section 194 of the Code of Criminal Procedure, as I have already mentioned, the High Court can try a case if it is committed to it. The High Court may also try under subsection (2) of section 194, a case at the instance of the Advocate-General when he, after having obtained previous sanction of the Government, places an information before it containing a definite statement of the charge. It may also try an offence of which a Magistrate has taken cognizance, but the High Court has transferred the trial to itself under section 526. The High Court can try an offence under subsection (2) of section 29 subject to the provisions section 5(2) of the Cr.P.C. And unless a case committed to the High Court, it cannot on a complaint made to it try an offence under the Act. The precise question as to the jurisdiction of the High Court to try an offence under the Companies Act was considered by a Full Bench of Allahabad High Court in Harish Chandara v. Kavindra Narain Sinha (AIR 1936 All. 830) and it was held: 'There is absolutely no conflict between the provisions of sections 5 and 29 of the Code. The mere fact that section 29 empowers High Court to try an offence under any other law than the Penal Code does not show that the High Court can take cognizance of the offence straight off, try the accused and convict and punish him without following the procedure laid down in the Code. So, in the case of an offence due to contravention of the provisions of section 85. Companies Act, the High Court has no jurisdiction to take cognizance of any try any such offence and impose the fines prescribed by the Companies Act. The High Court would have jurisdiction to try the accused only if the case is committed to the High Court under section 194(1) Criminal Procedure Code, or if proceedings are started on an application of the Advocate-General under section 194(2) or aro transferred to it under section 526, Criminal Procedure Code. It would not have jurisdiction to try the accused merely on an application made-under section 85, Companies Act."
In case of "Amir Habibullah v. S.S.P." (Writ Petition No,9330 of 1994 decided on 15-8-1994) wherein it has been held that in case of the existence of concurrent jurisdiction proceedings should be ordered to be initiated before the lowest forum provided under the law and that principle of equality before law is to be followed irrespective of the status of the litigants. At pages 11 to 14 and 17 to 22, of the judgment, it has been held as under:--- "In case of Sh. Zahoor Ahmad v. The State (PLD 1974 Lah. 256), it has been held that a petitioner must first move the Lower Court if the remedy of bail is available before the Lower Court. However, when there are exceptional circumstances, the bail application can be directly entertained by the High Court. While discussing the exceptional circumstances, the learned Single Judge of this Court has held that exceptional circumstances, in which petitions might directly be entertained in the High Court would depend upon several factors which might be general type or those relating to a particular case. The general factors might, amongst others, include war, natural disasters and calamities, general political unrest including riots and socioeconomic upheaval which might further include disturbance of lawful authority or temporary failure thereof. At page 265 of the report special relevant factors to be considered have been enumerated as under:--- `After carefully considering the legal objection raised by the learned Assistant Advocate-General and going through the case law on this point and taking note of the recent tent followed by this Court, I am of the view that a petition, relating to any matter in which a lower Court has concurrent or same jurisdiction under the Criminal P.C. Shall not ordinarily be entertained directly by this Court.
The exceptional circumstances in which petitions might directly be entertained in the High Court would depend upon several factors which might be of general type or those relating to a particular case. The general factors might amongst others, include war, natural disasters and calamities, general political unrest including riots and socio-economic upheaval which might further include disturbance of lawful authority of temporary failure thereof. These general considerations from their very nature, it is clear would be relevant and material only very rarely. In ordinary times, the factors relatable to particular circumstances of each case would have to be considered in order to find out whether it (case) is so exceptional as to warrant to direct move by petition, in the High Court. All of these factors cannot be enumerated nor can they be laid down with any exact specification. But it will not be out of place to visualise some broad outlines in this behalf, for example:---
(a) where the High Court has earlier dealt with any matter which has direct relevancy to the subject-matter of the petition (for bail, revision, etc.) filed in the High Court, the petitioner might not be compelled to first move the lower Court of concurrent jurisdiction;
(b) where the Presiding Officer of the lower Court is not available and his substitute it is either difficult to locate or even if locatable is unable to give substantial relief in the matter; as sometimes, it happens when the Sessions Judge is on leave and the District Magistrate is exercising some of his powers under the Criminal Procedure Code;
(c) where the Presiding Officer of the lower Court for any personal disqualification is unable to deal with the matter and during the time that the matter goes before another Presiding Officer or co- ordinate jurisdiction, there might be likelihood of irreparable damage or loss to the petitioner;
(d) where the petitioner is physically incapacitated to go to the Court concerned and seek redress; e.g., if a person is ill or under genuine fear of bodily harm and travel up to the lower Court concerned is not without serious peril to his person he may move the High Court directly;
(e) if there is serious and genuine apprehension of political victimization at any level and the atmosphere at the lower Court level is so vitiated against the petitioner that the lower Court would be embarrassed or prevented from giving relief, the High Court may be moved directly instead of an approach to the lower Court;
(f) where the case is such that combines several questions in some of which the High Court and the lower Court have concurrent jurisdiction but in others, the lower Courts have no jurisdiction; e.g., if the matter requires exercise of jurisdiction under any specific provisions of Criminal Procedure Code as also under the inherent power of the High Court under section 561-A the matter may directly be moved in the High Court;
(g) where cases are spread over several districts and / or there is dispute or doubt about jurisdiction.
' As earlier emphasized, the above situations are neither of general application nor they exhaust the list. In a particular case, even if prima facie any one of these consideration is attracted, its peculiar circumstances might still not justify filing a direct petition in the High Court. It is further clarified that the above attempt at giving certain examples should not and cannot be treated as laying down the conditions to be applicable to every case. In each petition in these matters to be filed directly in the High Court, it would be for the party and the counsel to give reasonable and acceptable explanation in the circumstances of that case for not moving a lower Court in the first instance. In this behalf I cannot do better than refer to the following observations by their Lordships of the Supreme Court in bail matters:--- `Of late, we have witnessed a growing tendency of applications for bail and anticipatory bail being brought in the High Court and the Supreme Court almost as a matter of routine. As repeatedly laid down by this Court, grant or refusal of bail in non-bailable cases is a matter of discretion with the primary Court, which is inquiring into or trying the case'.
Sec Nisar Ahmad v. The State (PLD 1971 SC 174). It is unfortunate that in some cases the above observation, which can also be treated as a warning, is not being paid full attention by some parties and their learned counsel while moving the petitions for bail before or after arrest."
OTHER RELEVANT FACTORS AND CONSIDERATIONS
(i) Pakistan is a Muslim State. Society in this country has to be shaped and dealt with in accord with the Injunctions of Islam, Constitution of Islamic Republic of Pakistan, 1973 and the law. In Islam every human being is equal and is entitled to equal treatment of law including the right of access to seek justice. Every person is bound to submit to the jurisdiction of Courts of competent jurisdiction how highs over he may be and cannot ask for discrimination in matter of choice of the Court. Every human being is equal irrespective of caste, colour or creed except "TAQWA". The above Injunctions of Islam is contained in the last sermon delivered by the Holy Prophet MUHAMMAD (Peace be upon him) on Ninth Day of Dhul-Hijjah 10 A.H. On the occasion of Hijjahtul Wida, which is the first international Charter of the Human Rights. Above referred injunction is reproduced as under:---, {{URDU TEXT}} ' The concept of equality of citizen of Pakistan regarding their equal treatment\ before Law and Law Courts is also guaranteed by the Constitution of Islamic Republic of Pakistan, 1973. As per paragraphs Nos.5, 8 and 9 of the Objective Resolution which has now become substantive part of the Constitution by virtue of Article 2-A thereof, all the Muslims in this country are to be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Qur'an and Sunnah and fundamental rights including equality of status, of opportunity and before law, social, economic and political justice are to be guaranteed subject to the law and public morality; independence of the judiciary has also to be secured. Similarly, as per provisions of Articles 4, 9 and 25 of the Constitution of Pakistan, every citizen of Pakistan is entitled to the equal treatment before law and a free and in discriminatory access to justice.
' Right of equality before law all the human being is also guaranteed by the Charter of Human Rights adopted by the United Nations. Dilating upon the concept of equality before law and fundamental rights of access to get justice by the citizen of Pakistan, their Lordship of the Supreme Court of Pakistan in case Government of Balochistan through Additional Chief Secretary v. Aziz Ullah Memon and 16 others (PLD 1993 SC 341) at page 358 of the report held as under:- "The equal protection clause was also considered in Zain Noorani v. Secretary of the National Assembly of Pakistan PLD 1957 Kar.
1. In Malik Muhammad Usman v. The State and another PLD 1965 Lah. 229, sections 8 and 11 of the Frontier Crimes Regulation providing for reference of proceedings to a Jirga were held to offend against Fundamental Right No,15 of 1962, Constitution for the reason that the Commissioner and the Deputy Commissioner were given uncontrolled discretion to select particular cases and even particular accused in the same case for the discriminatory procedure which was not governed by any settled principle. The observations made in Jibendra Kishore and Waris Meah were reiterated in East and West Steamship v. Pakistan PLD 1958 SC 41 that 'where a statute is not ex fade discriminatory but is capable of being administered in a discriminatory manner, the party challenging its constitutionality has to show that it has actually been administered in a discriminatory manner'. Thus, where the statutory functionary acts mala fide or in a partial, unjust, oppressive or discriminatory manner, his action can be challenged for violation of equality clause of the Constitution. In F.B. Ali's case PLD 1975 SC 506 the challenge to amendments in Pakistan Army Act and Ordinance IV of 1967 was made inter alia as violative of equality clause of 1962 Constitution. This Court repelled it on the basis of principles laid down in Waris Meah's case and observed that in this case if the Foreign Exchange Regulation Act had set up a Tribunal of exclusive jurisdiction, with a procedure different from the Code of Criminal Procedure, the challenge would not have succeeded as the offenders under the Foreign Exchange Regulation could validly and reasonably be considered a different class from the offenders under the ordinary law. Fauji Foundation's case PLD 1983 SC 457 held that legislation in regard to an individual can be made provided it is not discriminatory. In I.A. Sherwani's case 1991 SCMR 1041 after considering the judgment in F.B. Ali's case PLD 1975 SC 506, Abdul Wali Khan's case PLD 1976 SC 57, Aziz Begum's case PLD 1990 SC 899, Shirin Munir and others v. Government of Punjab PLD 1990 SC 295 and several judgments of the Supreme Court of India, the following principles were deduced:---
(i) that equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated alike;
(ii) that reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis; ' (iii) that different laws can validly be enacted for different sexes, persons in different age groups, persons having different financial standing, and persons accused of heinous crimes;
(iv) that no standard of universal application to test reasonableness of a classification can be laid down as what may be reasonable classification in a particular set of circumstances, may be unreasonable in the other set of circumstances;
(v) that a law applying to one person or one class of persons may be constitutionally valid if there is sufficient basis or reason for it, but a . Classification which is arbitrary and is not founded on any rational basis is no classification as to warrant its exclusion from the mischief of Article 25;
(vi) that protection of law means that all persons equally placed be treated alike both in privileges conferred and liabilities imposed;
(vii) that in order to make a classification reason it should be based
(a) on an intelligible differentia which distinguishes persons or things that are grouped together from those who had been left out;
(b) that the differentia must have rational nexus to the object sought to be achieved by such classification."
7. We have considered the arguments addressed by the petitioner and the learned counsel for the respondent in the light of relevant statutory provisions and the relevant case-law on the subject. It is an established and conceded legal proposition that all the provisions of Cr. P.C. Shall have to be read together so as to harmonize them rather than to the exclusion of each other. The Senate Act, 1975 does not provide a Court who is to try the offences committed therein, nor any special procedure for inquiry/trial for such offences has been provided therein, therefore, the provision of section 29(2) of the Criminal P.C. Shall govern the situation, according to which, the trial can be held by the High Court or by a Magistrate 1st Class or 2nd Class. Reading the provisions of sections 5, 29(2), 194, 526 and the Schedule II of the Criminal P.C. Referred to in the earlier part of this judgment, it becomes clear that prior to the amendment in the provisions of Criminal P.C.
Particularly section 194, Cr.P.C. By Law Reforms Ordinance, 1972, the High Court could take cognizance of a criminal case/complaint in the following situation:---
(1) A complaint transmitted to the High Court after holding of commitment proceedings by a Magistrate.
(2) A complaint directly filed by the Advocate-General of the Government with prior sanction of the Government.
(3) A case/complaint transferred by the High Court in exercise of its powers under section 526, Cr.P.C.
8. After the amendment in the provision of section 194, Cr.P.C. The cases/complaints can no more be committed by a Magistrate or filed by the Advocate-General with prior sanction of the Government, hence, the present position is that the case or a complaint can be brought before the High Court by invoking the powers under section 526, Cr.P.C. When the matter is pending C before a lower Court. There is no other provision in the Criminal Procedure Code where under a complaint could be filed in the High Court directly, therefore, applying the principle of harmoneous interpretation of statute, the position which emerges out of combined reading of various provisions of Criminal Procedure Code read with Schedule II, thereof is that it is the Magistrate 1st Class/2nd Class, who is competent to take cognizance of a D complaint under section 62 of the Senate Act.
The above taken view is also supported by the reason, that in case the complaint is directly entertained by this Court either party thereto will be deprived of a vested and legal right of an appeal or revision, which may have to be filed in case of adverse order passed against either of parties, to the complaint. In case of `Harish Chandara' (supra) this ground has also been considered as a debarring factor for this Court to entertain a complaint directly which is also triable by a Court of inferior jurisdiction. Merely because the parties to the petition are persons of higher status, is also not a valid ground to entertain a complaint of a person who enjoys a high social status, as the above referred concession would amount to violating the principles of equality before law as guaranteed by the Constitution of Islamic Republic of Pakistan, 1973 read with injunctions of Islam as contained in Holy Qur'an and Sunnah. Above taken views, are fully supported by law declared in cases of "Harish Chandara", "Muhammad Azhar Hussain" and Amir Habibullah (supra).
9. As regards the arguments of the petitioner to the effect that the complaint should be entertained by this Court due to the pendency of election petition before Election Tribunal, which is presided over by a learned Judge of this Court, suffice it to say that the provisions of section 76 of the Senate Election Act, 1975, are a complete answer to negate the above argument. A close reading of the provision of section 76 of the Senate Act, 1975, clearly shows that Act of 1975 has envisaged two situations: (a) where a person wishes to file a complaint without filing of or before the decision of election petition, he can do so within a period of six months w.e.f, the commission of the alleged offence. (b) Prosecution for the commission of offence of corrupt practice can also be commenced within a period of three months w.e.f, the date of final order passed by the Election Tribunal holding that the offence of corrupt practice has been committed. Both the situations being quite distinct and independent, the pendency or otherwise of election petition, is hardly a relevant circumstance to be pressed into service by the petitioner in support of his contention that the complaint should be directly entertained by this Court.
10. Examined the case from another angle, a perusal of provision of section 76 of the Senate Act, 1975, shows that a prosecution on account of commission of offence of corrupt practice can only be commenced within six months w.e.f, commission of the offence. The complaint in question was filed in this Court for the first time on 12-12-1994, although, as per statement of facts in the complaint itself, the commission of the alleged offence was complete on 11-6-1994 when the respondent No,3 having been appointed as Chairman of the Council of Islamic Ideology, had withdrawn/retired from the election and had intimated his decision, through a fax message, received by the Provincial Election Commission Punjab, Lahore on 11-6-1994 at 3-25 p.m., therefore, it is quite clear that the complaint was filed after expiry of a period of six months, w.e.f, the date of commission of alleged offence which could not be done as per provision of section 76 of the Senate Act, 1975. Hence, no prosecution on the basis thereof can be ordered to be commenced after a period of about ten months even after the date of the referred election on this score as well, the complaint cannot be entertained by this Court as being barred by time.
11. Resultantly, we hold that the present complaint is not entertain able before this Court, hence, the same is dismissed.
' Complaint dismissed.