1. ' IFTIKHAR MUHAMMAD CHAUDHARY, J.--- This appeal has been filed under section 417(2-A) of the Code of Criminal Procedure, against the judgment, dated 8th July, 1997, passed by Sessions Judge, Pishin, whereby respondents have been acquitted of the charge, under section 302/34, P.P.C.
2. ' Briefly the facts are that on 21st April, 1994, P.W.4 Abdullah Jan, vide Exh.P.4-A, lodged a complaint with Assistant Commissioner, Chaman, to the effect that at about 10-30 a.m. Abdul Qahir son of Haji Dilbar Malezai (P.W.1) informed him on telephone that when he and his brother Nazar Jan, were passing from near Killi Shadezai, while coming from Bazar, sons of Haji Wandad and Hanifia, both by caste Malezai, fired upon them. Nazar Jan was hit with bullets, on account of which, he died at the spot. On this report, case was registered and investigation commenced. Subsequently on 30th April, 1994, appellant Haji Dilbar Jan, who appeared as P.W.8, filed a complaint under section 302/34, P.P.C., against 10 persons including respondents 1 to 3. Initially investigation was conducted by levies Force, at Chaman, but subsequently case was transferred to Crime Branch, Quetta. It is stated that Tehsildar being the In charge of Levies Force arrested four persons namely Saleh Muhammad, Shah Muhammad, Wali Muhammad and Nida Muhammad, on the day of incident, whereas remaining accused succeeded in absconding. The Crime Branch on completion of investigation submitted challan in the Court of Special Judge, for Suppression of Terrorist Activities, Balochistan, being a scheduled offence triable by the Special Court.
3. ' Learned Special Court, read over charge to the respondents, including Saleh Muhammad and Nida Muhammad on 19th September, 1995, to which, they did not plead guilty and claimed trial.
4. ' Prosecution to substantiate the accusation led evidence of P.Ws. Abdul Qahir, Haji Wafa, Sultan Muhammad, Abdullah Jan, Haji Dilbar (appellant), Matiullah, Tehsildar and Muhammad Iqbal, Inspector, Crimes Branch, Quetta. After recording statement of last mentioned witness, case file was transferred from the Court of Special Judge, Suppression of Terrorist Activities, Quetta to Special Judge, Suppression of Terrorist Activities, Pishin, on creation of new Sessions Division. The Incumbent Officer (Sessions Judge) completed statement of respondents and co-accused under section 342, Cr.P.C. And last case-diary was maintained by him upto 18th March, 1997, when he fixed the next date to be 7th April, 1997. In the meanwhile on 26th March, 1997, vide Notification No,556/Admn. The service of Syed Abdul Wajid Agha the then District and Sessions Judge, Pishin, were placed under suspension and the charge of the Court of District and Sessions Judge, was given to Additional District and Sessions Judge, Pishin, in addition to his own duties till further orders. In the meanwhile the then Additional Sessions Judge, who was holding the charge of the Court of Sessions Judge, was also transferred vide Notification No,716120- ' Est:/Adam. High Court of Balochistan, dated 16th April, 1997 and Mr. Abdullah Khan was posted as Additional District and Sessions Judge, Pishin. As such, he completed oath statement of the respondents as well as of the co-accused on 2nd June, 1997. Thereafter, arguments were heard and vide impugned judgment, dated 8th July, 1997, acquitted the respondents of the charge including Nida Muhammad and Saleh Muhammad. As such, instant appeal has been filed on 12th August, 1997.
5. ' Mr. Aslam Chishti, learned counsel was heard in support of the appeal on 20th August, 1997, when the same was admitted for regular hearing, by passing following order:- "Mr. Chishti, contended that Incharge Sessions Judge, Pishin, was not conferred with jurisdiction of Special Judge under section 3 of the Suppression of Terrorist Activities Act, 1975. Since the instant case was pending on the file of Special Judge, S.T.A., therefore, he had no jurisdiction to proceed with the matter. Contentions raised require consideration. Admit. Notice."
6. ' Appellant questioned the above admission order before the honourable Supreme Court, by filing a Criminal Petition for leave to Appeal No,41/Q of 1997, alongwith a C.M. Application No,47/Q of 1997, with the prayer that, until decision of petition, learned Court may graciously stay hearing of criminal Acquittal Appeal No,208 of 1997 pending before Balochistan High Court. The Honourable Supreme Court passed order on C.M. Application on 8th September, 1997, which reads as under:- "Mr. S.A.M. Quadri, A.O.C. For the petitioner. The grievance of the petitioner is that the learned Division Bench of the High Court of Balochistan while admitting the acquittal appeal mentioned only the ground of jurisdiction. According to Mr. Quadri, if the High Court will come to the conclusion that the Court below had the jurisdiction in the matter, there would be no hearing of the appeal on merits. In my view, it will be appropriate for the petitioner to approach the High Court with the prayer to include the ground of merit if prima facie there is material available on record to justify the hearing on merits.
7. (S4.)
8. ' Ajmal Mian, J.
9. 'After passing of the above order by Honourable Supreme Court, the appellant submitted Criminal Miscellaneous Application No,279 of 1997, under section 561-A, Cr.P.C. Wherein, after tracing the history of the case, concerning filing of petition, Appeal, its hearing, summoning of record, preparation of paper book etc. It was pointed out that the appeal deserves to be heard on merits, as in such circumstances, it is customary to use the expression "inter alia" in the admitting note, if all the contentions are not noted, therefore, under these circumstances, appellant expressed apprehension that if the expression "inter alia" is not inserted or for that matter the appeal is not directed to be heard on merits as well and question of jurisdiction is decided against the appellant, the appeal might not be heard on merits. As such, it was prayed that in the admitting note, ground of merit as well, be included and appeal may be directed to be heard both on the ground of jurisdiction and merits. Notice of the application was given to respondent's who vehemently opposed the request of appellant. This question would be taken up later on. At the first instance we are inclined to examine; whether Additional Sessions Judge, being Incharge Sessions Judge, Pishin, was competent to function as Special Court under the Suppression of Terrorist Activities (Special Courts) Act, 1975 (hereinafter referred to as "the Act of 1975").
10. ' Mr. Muhammad Aslam Chishti, learned counsel for appellant contended that the Additional Sessions Judge was not competent to perform function of Special Court under the Act of 1975, because he was holding the charge of Sessions Judge, Pishin. According to him under section 3(1)
(b) of the Act of 1975 only those Sessions Judges, can function as Special Court, who have exercised, whether continuously or not, the powers under the Court of a Sessions Judge, for three years. According to him Abdullah Khan, who had delivered the impugned judgment, being an Additional Sessions Judge could have not competently function as Special Court. In support of his argument, he relied on PLD 1967 Pesh. 343, 1968 PCr.LJ 1373, PLD 1969 SC 187. The Interpretation of Statutes, by N.S. Bindra's 7th Edition, 1984 p.230 (Special Tribunal), Maxwell on the Interpretation of Statutes 10th Edition Section 2, p.3 (literal construction) and the Interpretation of Statute by Crowford Paragraphs 178 and 288.
11. ' On the other hand, Mr. Nasrullah Khan Achakzai, learned counsel, appearing on behalf of respondents stated that in the Province of Balochistan by a general Notification, all the Sessions Judges, functioning in respective Sessions Divisions, have been declared "Special Courts" under the Act of 1975, therefore, whosoever would be holding the charge of Sessions Court irrespective of the fact; whether he is Additional Sessions Judge or the Sessions Judge, would be deemed to be as a "Special Court". He further emphasised that vide Notification, dated 26th March, 1997, the Additional Sessions Judge, Pishin by virtue of his post, was authorised to hold the charge of the Court of District and Sessions Judge; meaning thereby, that for all intent and purposes, he was the Sessions Judge, under the Code of Criminal Procedure as such, he was empowered to function as "Special Court" as well, under the Act of 1975. He further argued that appellant was represented by an Advocate before the Additional Sessions Judge, functioning as Sessions Judge, as well as Special Court, Pishin and during trial no objection was raised by him on the competency of Presiding Officer, being Incharge Sessions Judge, therefore, at this stage, the objection is not available to him in view of the principle of law, laid down by Honourable Supreme Court in 1992 PCr.LJ 2299. He further stated that this Court is not competent to review the admission order and is legally bound to decide the appeal only on the point, on which, it was admitted, as it has been held in 1975 SCM R 258, 1976 SCM R 199 and PLD 1981 SC 582. Lastly he contended that this Court may also examine that what prejudice has been caused to appellant, if the acquittal order has been passed by Additional Sessions Judge, in acting as Incharge Sessions Judge/Special Court, Pishin, because under the Code of Criminal Procedure, there is no distinction in the powers of Sessions Judge and Additional Sessions Judge. Similarly on same analogy, under section 3(1)(b) of the Act of 1975, Special Court can comprise of the Sessions Judge or the Additional Sessions Judge, as well as the Judge of the High Court.
12. ' Mr. Noor Muhammad Achakzai, learned Additional Advocate-General, was also of the opinion that Additional Sessions Judge, being Incharge Sessions Judge, had rightly exercised jurisdiction of Special Court, because at that time, he was not an Additional Sessions Judge, but a Sessions Judge, in terms of the Notification issued by the High Court of Balochistan on 26th March, 1997, after the suspension of the then Incumbent Sessions Judge, Mr. Abdul Wajid Agha. Therefore, the order has been passed with jurisdiction and does not deserve interference.
13. ' We have heard the learned counsel for parties and also minutely examined the law, on the subject.
14. ' It may be noted that section 6 of Code of Criminal Procedure, defines classes of criminal Courts including High Court and the Courts constituted under any law other than the Code for time being in force. Under the circumstances there shall be 5 classes of criminal Courts, including the Courts of Session. Whereas section 9 of the Code speaks that the Provincial Government shall establish a Court of Session for every Session Division and appoint a Judge of such Court. Subsection (3) of this section also empowers the Provincial Government to appoint Additional Sessions Judges and Assistant Sessions Judges, to exercise jurisdiction, in one or more such Courts. As for as its subsection (4) is concerned, it is most important to clinch the issue, as according to it, Sessions Judge of one Sessions Division may be appointed by the Provincial Government to be also an Additional Sessions Judge of another Division, and in such case he may sit for the disposal of cases at such place or places in either Division as the Provincial Government may direct. It may be noted that by virtue of Rule of the High Court Rules and Orders, in place of Provincial Government, the High Court comprising of Chief Justice and the Judges have been empowered to transfer Sessions Judge from one Division to another and so is the position of Additional Sessions Judges. Under section 31(2), Cr.P.C. The powers of Sessions Judge or Additional Sessions Judge are similar, as for as passing of any sentence, authorized by law is concerned, except that any sentence of death passed by such Judge, shall be subject to confirmation by the High Court. On the basis of this scheme of law, conveniently it can be held that the Sessions Judges and the Additional Sessions Judges, if have been appointed under the Code of Criminal Procedure, they enjoy same powers, as regards awarding of sentences. It may be seen that under administrative arrangement, a Sessions Judge holds the charge of Sessions Division, for administrative purposes, and so for Additional Sessions Judge is concerned, from administrative point of view, he would be his subordinate, but as regards the powers of awarding sentences, there is no distinction nor the Additional Sessions Judge, can be deemed to be his subordinate. In view of these provisions of Code of Criminal Procedure, now we will advert towards section 3 of the Act of 1975, which deals with constitution of Special Court.
15. ' For our purpose, clause (b) of subsection (1) of section 3 of the Act of 1975, is relevant. According to which, the Federal Government may, by notification in the official Gazette, constitute, for the whole or any part of Pakistan, Special Courts consisting of a person, who has, for a total period of not less than three years, exercised whether continuously or not, the powers under the Court of Sessions Judge, Additional Sessions Judge. In this clause total period of not less than three years of exercising the powers continuously or otherwise, would be applicable, on the Court of Sessions Judge and Additional Sessions Judge. It would mean that if a Sessions Judge or an Additional Sessions Judge, had worked for this much period, anyone of them can be appointed as Special Court. In the instant matter, it is nobody's case that Additional Sessions Judge, to whom the charge was given on 26th March, 1997, by the High Court had not exercised powers of Additional Sessions Judge for a period less than three years. It is necessary to observe that under subsection (2) of section 3, the Provincial Government of Balochistan has been authorized by the Federal Government to appoint Special Courts, therefore, in exercise of these delegated powers, throughout the Province, all the Sessions Judges, functioning in their respective Divisions, have been empowered to function as Special Court.
16. ' Mr. Aslam Chishti, learned counsel by making reference to "The Interpretation of Statutes by N.S. Bindra's" contended that when Special Tribunal is constituted under the Statute, its jurisdiction depends upon the specific provisions of the Statute. According to him, if the Sessions Judge, Pishin was authorized to function as Special Court, the Additional Sessions Judge, cannot discharge the duty of Special Court in his substance, notwithstanding the fact, that Additional Sessions Judge, .Has been allowed to hold the charge. Similarly he referred to section 2(Literal Construction) of "Maxwell on the Interpretation of Statutes", and stated that the first and most elementary rule of construction is that it is to be assumed that the words and phrases of technical legislation are used in their technical meaning if they have acquired one, and, otherwise, in their ordinary meaning; and, secondly, that the phrases and sentences are to be construed according to the rules of grammar.
17. ' As for as these principles of Interpretation of Statutes, are concerned, there is no cavil with them, rather applying the same test, we are inclined to hold that the plain language of section 3(1)(b) of the Act of 1975, clearly suggests that either the Sessions Judge or an Additional Sessions Judge, who has exercised such powers, for a period, not less than three years, can act as a Special Court.
18. At this juncture, reference to section 9(4), Cr.P.C. Would not be out of context, according to which, even a Sessions Judge in another Division, can be appointed as Additional Sessions Judge of another Division and in this manner he would be holding the charge of Sessions Judge of one Division and would be acting as Additional Sessions Judge under the subordination of Sessions Judge of other Division. Therefore, on the basis of same analogy, whenever an Additional Sessions Judge, has been authorized by the competent Authority, to hold the charge of Sessions Judge, he would be deemed for all intent and purposes to be the Sessions Judge of said Division, notwithstanding the fact, whether in his personal capacity, his status in the service is of an Additional Sessions Judge. The object of giving the charge to an Additional Sessions Judge is always to perform all functions, duties, etc. Which are required to be performed by the Sessions Judge.
19. ' As for as the authorities, cited by Mr. Aslam Chishti, learned counsel, are concerned, those are not helpful to him in advancing his plea.
20. For the above discussion, we are inclined to hold that Additional Sessions Judge, being Incharge of the Sessions Court, in absence of a Sessions Judge, shall be competent to function as Special Court, in view of section 3 (1)(b) of the Suppression of Terrorist Activities (Special Courts) Act, 1975.
21. ' At this stage, it is also most important to note that to the knowledge of appellant the Additional Sessions Judge was functioning as Special Court under the Act of 1975, because he fully participated in the proceedings through his counsel, as it is evident from the order-sheets, dated 26th April, 1997 to onward till 14th June, 1997 when the arguments advanced by the State Counsel, counsel for accused as well as counsel for appellant (Mehta K.N. Kohli) were heard and judgment was reserved. Had the appellant any doubt about the competency of Additional Sessions Judge to function as Special Court, he could have raised the objection at that time, therefore, such objection touching to the jurisdiction of the Court, cannot be allowed to be raised for the first time, at appellate stage. In forming this view we are fully supported by the judgment reported in 1992 PCr.LJ 2299.
22. ' Now adverting towards the application submitted by appellant's counsel for allowing to him to argue the appeal on merits, it is to be noted that the admission order is explicit on the point that only to consider the question of jurisdiction of the Trial Court the appeal was admitted. If appellant had made out a prima facie case on merits, there was no reason to incorporate the word "inter alia" in the admission order. Order was dictated in presence of Mr. Muhammad Aslam Chishti learned counsel for appellant. He did not raise any objection at that time, concerning his submission on merits of the case, because he was fully aware that the Bench is not inclined to entertain the appeal on merits otherwise there was no hurdle in his way to point out at that time that the appeal may also be admitted on merits of the case as well. Even later on he did not move an application agitating his grievance for not admitting the appeal to consider its merits. However, he filed a criminal petition for leave to appeal before the honourable Supreme Court but on his application being No,47/Q of 1997 in which request was made for stay of hearing of criminal acquittal appeal until decision of petition the honourable Supreme Court was pleased to refuse to stay hearing and advised appellant to approach this Court, for inclusion of ground of merits, if prima facie there is material available on record to justify the hearing on merits.
23. ' Application under section 561-A, Cr.P.C. So submitted later on by appellant has been vehemently opposed by respondents' counsel as well as by learned Additional Advocate-General.
24. At this juncture, it is to be noted that even before the honourable Supreme Court it is an established practice that after granting leave to appeal matter had to be disposed of on the same points on which the leave was granted, if the expression "inter alia" has not been used. It is the consistent view of the honourable Supreme Court that after signing the order, the Court becomes functus officio to add or delete anything from it. In this behalf reference can be made to 1975 SCM R 258 and 1976 SCM R 199, wherein it has been held that points specifically dealt with and decided against the appellant at the time of granting leave to appeal, cannot be agitated at the time of hearing of appeal. Thus, we are of the opinion that as the appeal was not admitted to consider the merits of the case, therefore, the conclusion would be that prima facie appellant had no case to agitate on merits and alone for this reason, the appeal was admitted to examine question of jurisdiction.
25. Likewise in another case reported in PLD 1981 SC 582, the honourable Supreme Court held that if the counsel appearing for appellant at the leave granting stage was not able to argue certain available points or failed to properly highlight certain aspects, this by itself would not be a valid ground for review. Applying this test as well on the facts of the case in hand, we are inclined to hold that learned counsel for appellant failed to convince us on merits of the case, therefore, appeal was admitted only on the question of jurisdiction. As such, by making request through civil miscellaneous application he cannot be allowed to argue the appeal on merits. Therefore, application is rejected.
26. ' For the foregoing reasons, we are of the opinion that the Additional Sessions Judge being Incharge Sessions Judge, Pishin was competent to function as "Special Court" under the Suppression of Terrorist Activities (Special Courts) Act, 1975, therefore, the impugned judgment has been passed by him competently, and thus it deserves no interference. Consequently appeal is dismissed.