MIAN ALLAH NAWAZ, C.J.---This order will govern four petitions namely Criminal Miscellaneous No.727-H of 2000 and three Constitution Petitions bearing Nos. 1004, 1005 and 10805 all of 2000. The first one is a petition under section 491, Cr.P.C. By Imran Raza, Advocate/nephew of Ghulam Qambar Chadhar detenu. Two petitions Nos. 1004 and 1005 of 2000 under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 have been filed by Ghulam Qambar Chadhar, detenu. Last and fourth is also a Constitutional petition moved by Mr. Abid Saaqi, Advocate/General Secretary, Lahore High Court Bar Association, Lahore. Through the first petition, Imran Raza wants this Court to depute a Bailiff to recover all the detenus mentioned in the petition; produce them before the Court and to set them at liberty in accordance with law. In second Constitutional petition, Ghulam Qambar has prayed that respondent/S.H.O. Be restrained from taking any step under the cover of F.I.R. Impugned in this petition and he may be restrained from initiating any action against his relatives. He further wants this Court to declare the action of getting him declared as proclaimed offender, as without jurisdiction, without any lawful consequences and nullity in the eyes of law; that the Anti-Corruption Establishment be directed to ensure that the contents of Memo., dated 9-5-2000 are obeyed by the S.H.O.; that the Inspector- General of Police be directed to initiate action against the respondent/S.H.O. The third petition has been filed to restrain the Police from seeking any further police remand on the bass of F. I. R. No. l of 2000.'The fourth petition seeks the quashment of F.I.R. No. 131 of 2000.
2. In order to resolve the Competing claims of both sides, it is necessary to note the factual background leading to filing of these petitions. Concisely stated, the case of petitioner is; that Imran Raza Khan applicant herein is nephew of Ghulam Qambar who had been working as Accounts Officer in the office of Accountant General, Punjab, Lahore, F.I.R. No. l of 2000 was lodged by Ghulam Rasul, Accountant of Elite Training School, Lahore under section 409, P.P.C. Against Maqsood Bashir, ex-Accountant of the School and Fida Hussain/alleging therein that the aforesaid accused were involved in sheinous acts of manipulation, forgeries and massive embezzlement of funds of the School; that they had taken away the cash registers relating to 1997-98, 1998-99 and 1999-2000, contingent registers relating to 1997-98, 1998-99 and 1999-2000 and various other records. This F.I.R. Was lodged at Police Station, Barki. Statedly, on 2-2-2000 Sayed Muhammad Abbas, Inspector/S.H.O. Police Station Barki abducted Ghulam Qambar from the gate of office of the Accountant General, Punjab, Lahore, took him to some unknown destination and kept him in illegal confinement. Feeling aggrieved, he filed a habeas corpus petition which was disposed of by our learned brother Zafar Pasha Chaudhry, J. On 8-2-2000 with the observation that the said petition had become infrunctuous; that the Investigation Officer had obtained warrants of arrest of Ghulam Qambar; and according to him he had not been arrested by him. The petitioner, however, was given option to pursue remedies under the law. At this stage, it is necessary to mention that the occurrence reported in F.I.R. No.1 of 2000 came to the notice of Director Anti-Corruption and on 7-2-2000, a high powered committee comprising Additional Director, Anti-Corruption Establishment, Lahore, Deputy Director (Legal) and Sayed Abdus Samad Shah was constituted to look into the matter. Thereafter, another petition i.e. Writ Petition No.6795 of 2000 was filed by Jamila Qambar wife of detenu, which was withdrawn on 1-5-2000 as impressed.
3. This is the background, in which Imran Raza Khan filed a complaint under section 19(3) of Anti- Terrorism Act, 1997 read with section 200, Cr.P.C., in the Court of the learned Special Judge, Anti- Terrorism Court, Lahore on 27-4-2000. The aforesaid complaint was withdrawn with permission to file fresh one. Resultantly, on 28-4-2000, a fresh complaint was lodged. It was alleged therein that Ghulam Qambar was kidnapped by Abbas respondent/S.H.O. At about 8:30 a.m. On 2-2-2000 from the main gate of A.G. Office/Turner Road, Lahore; that his car Suzuki Mehran was also taken into custody by the said police officer; that there was massive embezzlement in the Institution known as Elite Training School, Baidian Road, Lahore; that one Col. (Rtd.) Tariq Ehtisham, who was Incharge of this School and was involved in the `embezzlement, goaded the said S.H.O. To kidnap Ghulam Qambar in order to destroy the evidence pertaining to his crimes. It will be highly useful to quote para. 10 of the afforded complaint in extenso:-- "That the aforesaid Ghulam Qambar Chadharh is still being held in illegal confinement by respondent Abbas at various secret places within his special knowledge in order to protect himself from penal consequence of his criminal act. Even now, the aforesaid detenu remains in illegal confinement after the lapse of 84 days. In order to protect himself, respondent Abbas has arranged for an arrest warrant even though the detenu continues to remain in his illegal custody for a prolonged period, hence the need for a Search Warrant in terms of section 100, Cr.P.C. Which has been separately applied for."
4. The learned Special Judge recorded the statement of the complainant on 29-4-2000 and that of the witnesses on 2-5-2000 respectively. On 29-4-2000, the basis of material before him, the S.P.
Was directed to make a search and produce the detenus in Court, if possible on 6-5-2000. Despite hectic efforts, the aforesaid order did not yield any productive result. The applicant was, so, forced to move another application under section 100, Cr.P.C. For issuance of search warrant. The learned Special Judge, vide order, dated 10-5-2000, rejected the application holding that a search warrant issued under section 100, Cr.P.C. Will be totally an unproductive one. This was the situation in which the second application was filed on 17-5-2000 under section 100, Cr.P.C. On this application, after hearing the parties, learned Special Judge was pleased to appoint Mr. Shaukat Rafique Bajwa, Advocate as Bailiff of the Court and was empowered to effect the recovery of the detenu with the assistance of the concerned police. Pursuant to this order, Mr. Shaukat Rafique Bajwa, Advocate requested the Court to appoint two more Advocates in order to assist him in the above exercise.
Consequently, on 19-5-2000, Mr. Zafar Mahmood Chaudhry, Advocate and Mr. Hamaad Raza, Advocate were appointed to assist Mr. Shaukat Rafique Bajwa, Advocate. Armed with this order, on the same date, the aforesaid two Advocates raided the Office of Union Council, Wahga and found that Ghulam Qambar, Zahid Kaleem, Sikander Hayat and Muhammad Latif son of Muhammad Siddique were confined in a room with handcuffs. Thereafter, they were taken from that place alongwith Nazir Hussain, Constable No. 11707 to the Court of Special Judge, Anti-Terrorism Court.
The report was duly submitted by Mr. Shaukat Rafique Bajwa, Advocate, Mr. Zafar Mahmood Chaudhry, Advocate and Mr. Hamaad Raza, Advocate. The statements of the Constable and the detenus were recorded. All the above--mentioned detenus, at the time of raid, were found in handcuffs, which were removed. Their statements were recorded and they were again handcuffed and were required to be produced before the learned Judge Anti-Corruption. In this exercise the detenus were sent to jail by the learned Special Judge Anti-Corruption.
5. As a sequel to the above recoveries, F.I.R. No.131 of 2000 was registered on 24-5-2000 by Muhammad Riaz, A.S.I. At Police Station Batapur under sections 365 and 186, P.P.C. Against the aforesaid learned Advocates, who recovered the detenus from the office of Union Council, Wahga.
As a result of this, Criminal Miscellaneous No.727-H of 2000 was filed, which was received by one of us (Mian Allah Nawaz, Chief Justice) at his residence on 27-5-2000. Pursuant to the order of the Court, Bailiff raised the Police Station, Batapur, Lahore and found Shaukat Hussain son of Haji Shah Muhammad, Fazal Abbas son of M. Rafique, Haji M. Ismail son of Muhammad Ibrahim and Muhammad Shafique son of Muhammad Siddique present in the Police Station. They, according to Bailiff, were in a Police Van and were being taken to Court of competent jurisdiction for seeking their remand. They had been arrested in case F.I.R. No.131 of 2000, dated 25-4-2000. The S.H.O.
Stated that they had taken away the accused in case F.I.R. No.1 of 2000, dated 2-1-2000 registered with Police Station Burki under sections 409/468/471/477-A, P.P.C. Thereafter, Writ Petitions Nos.1004, 1005 and 10805/ all of the 2000 were filed on 30-5-2000, 30-5-2000 and 6-6-2000 respectively.
6. Before we proceed further to note the legal contentions of the parties, we find, it is expedient to record to version of Abbas/S.H.O. Burki. This version was unfolded by Sayed Shabar Raza Razvi, Advocate, who entered appearance on his behalf. He stated, at the outset, that Abbas/S.H.O. Was being painted as a devil but he was not so. He relied upon Zimni No. 15, dated 19-1-2000 and Zimni No.35, dated 19-5-2000. The Copies of the Zimnis were placed on record of this petition. According to the learned counsel, Maqsood Bashir, the Accountant and Fida Hussain, Cashier P.P.C. Battalion- I, Abbas Line, Lahore were arrested in a case under sections 498, 468, 471-A, 477 and 120-8, P.P.C.
The aforesaid accused, on interrogation, divulged that they had prepared fictitious- record of Elite Training School under the supervision of Ghulam Qambar, accused and manoeuvred to misappropriate, in the first instance, 5 to 6 crore rupees on the basis of felonious strategy charted` by him. He further disclosed, that a pretty good amount had been paid to Col. (Retd.) Ehtisham, the Principal of the Institution, in order to solicit his support in the aforesaid felonious process. He further disclosed that an amount of more than 4 crorers had been misappropriated by the above gang with respect to purchase of pistols; that said police official had conducted investigation under the orders of the competent Authority and found incriminating material against the aforesaid accused and also against a very high official, Col. (Retd.) Ehtisham, another senior police officer in the rank of D.I.-G., and Mrs. Seemi Khan, Deputy Accountant General in the office of A.-G.; that it came to light that the aforesaid gang had manufactured fictitious record to pocket huge amount of public money with tacit connivance of Col. (Retd.) Ehtisham. Learned counsel continued that the aforesaid S.H.O. Had conducted investigation with mathematical honesty and unearthed a case of embezzlement of public fund. On the arrest of Ghulam Qambar and his two associates, he stated that on 19-5-2000, the said S.H.O. Received an information that Ghulam Qambar, Zahid Kaleem, Muhammad Latif and Sakindar Hayat were coming from 'Goal Chakkar' and were proceeding towards `Cantt. Ketchary'; that they were arrested and taken to Union Council, Wahga from where they had been taken away by the Bailiff, deputed by the learned Special Judge Anti- Terrorsim Court. This is factual version of maligned S.H.O.
7. The above given factual narrative will not be complete without noting certain revenue which happened in the Court. Criminal Miscellaneous No.727-H of 2000 came before one of us (Chief Justice) at his residence on 27-5-2000. Pursuant to his order, the bailiff raided Police Station Batapur, Lahore and found Shaukat A.I, Fazal Abbas, Haji Muhammad Ismail and Muhammad Shafique present in the police station. According to the bailiff the aforesaid detenus were in a van and were being taken on concerned Court for seeming their remand in a case F.I.R. No.131 of 2000, registered on 24-5-2000 under sections 365/186, P.P.C., etc. The aforesaid detenus were produced alongwith S.H.O. The learned Advocates, who had earlier performed duties of bailiff, were also implicated in the F.I.R. And were also granted ad interim bail subject to their furnishing bail bonds in the sum of Rs.5,000 each to the satisfaction of Deputy Registrar (Judl.) of this Court. Again this case came up for hearing before one of us (the Chief Justice) on 29-5-2000, 31-5-2000, 31-5-2000 and then on 2-6-2000 when an unfortunate incident occurred in the Court. However, whatever happened on the date i.e. 2-6-2000, is not useful to recapitulate in this judgment. On 5-6-2000, one of us (Chief Justice) felt that it was proper to put all these matters before a Full Bench. This is how all these causes were heard by the Full Bench on 8-6-2000 and 9-6-2000. On this date of hearing, Dr. A. Basit, Advocate entered appearance. He expressed his deep remorse and regret for whosoever had happened on 2-6-2000. He expressed his unconditional feeling of regret and sought that the aforesaid episode be forgotten. Thereafter, he opened arguments on behalf of Imran Raza Khan and Ghulam Qambar and inter alia urged:-- Firstly: That Ghulam Qambar Chadharh had been kidnapped by Abbas, Inspector/S.H.O. On 2-1- 2000 from the main gate of the office of the Accountant General, Punjab, Lahore and had been kept in illegal confinement till the date of his recovery; that the version given by the S.H.O. Was totally incorrect and was a device to put a cover on his illegal acts. On the strength of the above circumstances, he submitted that the detention of Ghulam Qamabar Chadharh from 2-1-2000 to 19-5-2000 be declared as illegal and a case be registered against the said delinquent police official.
Secondly: That the petitioner had filed a complaint before the learned Special Judge Anti-Terrorism Court; that a search warrant was issued on 17-5-2000; that the bailiff party comprising Mr. Zafar Mahmood Chaudhry, Advocate and Mr. Hamaad Raza Naqvi, Advocate recovered the detenus from the office of the Union Council, Wahga and they were produced before the Court of law in pursuance of its order; that the registration of F.I.R. No.131 of 2000 was therefore, wholly without jurisdiction, sheer abuse of authority and so needed to be quashed.
Thirdly: That the learned Special Judge Anti-Terrorism Court was competent to entertain the complainant and was also competent to issue order of search warrant under section 100, Cr.P.C.
Read with section -202, Cr.P.C.; that the conduct of the S.H.O. Was totally contumacious, unlawful and merited to be checked.
8. Ms. Yasmin Saigal, Assistant Advocate-General entered appearance on behalf of the State. She in reply raised the following points:--
(i) That the case of the Advocates Bailiffs/accused in F.I.R. No. 131 of 2000 is separable from that of other co-accused; that the aforesaid Advocates were acting in pursuance of an order passed by the Court arid so the State has no objection to the quashment of F.I.R. Qua the aforesaid Advocates Bailiffs; that the other co-accused obstructed public servants in discharge of their official duties and so F.I.R. No.131 of 2000 had been correctly recorded against them.
(ii) That from the contents of the complaint filed in the Court of Special Judge Anti-Terrorism, it was clear that offence under sections 342/340, P.P.C. Was also mentioned therein and so the learned Special Judge Anti-Terrorism Court had no jurisdiction to entertain the complainant within the framework of section 6 of the Anti-Terrorism Act, 1997.
(iii) That the petitioners were not entitled to any discretionary relief under Constitutional jurisdiction as they had approached Special Court with unclean hands.
(iv) That the learned Special Judge Anti-Terrorism Court was a Special Court and riot a Court of plenary or general jurisdiction, therefore, it had no jurisdiction or power to issue search warrants under section 100 of Cr.P.C. Reliance was placed on the case of Mst. Kausar Parveen v. Ahmad A.I Zafar, Judicial Magistrate, Kabirwala, District Khanewal (PLD 1997 Lahore 208).
(v) That there was no material whatsoever for registration of a case against Abbas/S. H. O.
(vi) That the petitioner had filed a complaint before the Special Judge wherein a process had been issued, therefore, there was no occasion to issue a direction for registration of a case.
The learned Advocate-General supported whatever was argued by Mr. Shabbar Raza Rizvi, Advocate.
9. Raja Shafqat Abbasi, Advocate/Chairman, Executive Committee, Punjab Bar Council entered appearance on behalf of the Punjab Bar Council and supported the act of the bailiffs dated 19-5- 2000. Thereafter, Ch. Abdur Razzaq, Advocated appeared on behalf of Mr. Zafar Mahmood Chaudhry, Advocate and Mr. Aftab Ahmad Bajwa, Advocate appeared on behalf of Lahore High Court Bar Association. They also supported the arguments of Dr. A. Basit, Advocate. They further relied upon sections 77 to 79 of Pakistan Penal Code to suggest that even if the order of the learned Special Judge, Anti-Terrorism Court was incorrect, still the F.I.R. No.131 of 2000 could not have registered. The President, Lahore High Court Bar Association supported the action of the bailiffs. He also filed written arguments in support of his contentions which have been placed on record of this petition.
10. From the foregoing factual narration, the following propositions of law/points/questions arise for consideration:--
(1) Whether the learned Anti-Terrorism Court was competent to entertain and take cognizance of complaint moved by Imran Raza Khan under section 19(3) of the Anti-Terrorism Act, 1997 read with section 200, Cr.P.C.?
Whether the learned Special Judge Anti-Terrorism Court was competent to issue a search warrant under section 100, Cr.P.C.?
(3) Whether the raid conducted by Mr. Zafar Mahmood Chaudry, Advocate and Mr. Hamaad Raza, Advocate on 19-5-2000 was void ab initio and it was tantamount to interference in the official duties of the concerned police functionaries, and whether on the facts and circumstances of the case, F.I.R. No.131 of 2000 was rightly registered at Police Station Barki on 24-5-2000 by A.I Raza, S.-I.
Under sections 136/186, P.P.C.
(4) Had Ghulam Qambar Chadhar been in the illegal custody of Abbas, S.H.O., Police Station Barki from 2-1-2000 till 19-5-2000?
11. Having noted the facts, circumstances of the instant petitions and competing contentions of the parties, we, now, proceed, to deal with the above proposition in seriatim. As regards question No. 1, we will have to undertake servey of the relevant provisions of the Anti-Terrorism Act (XXVII of 1997).
It was promulgated on 20-8-1997 with an object "to provide for the prevention of terrorism, sectarian, violence and for speedy trial of heinous offences and for matters connected therewith in and incidental thereto". This statutory instrument has 40 sections/followed by a Schedule under section 2(e) of the Act (ibid). Its sections 6, 10, 11, 12, 13, 19 and 23 are pertinent for present examination. Section 6 contains the definition of terrorist acts committed by the terrorists. Section 10 empowers any officer of the police, armed forces or civil armed forces to enter and search the premises where it is suspected that there is some material or recording which is in contravention of section 8. Section 11 empowers the Anti-Terrorism Court to forfeit any material or recording referred to therein. Section 12 pertains to jurisdiction of Anti-Terrorism Court. It says that notwithstanding anything contained in the Code or in any other law, a scheduled offence committed in an area in a Province shall be triable only by the Anti-Terrorism Court having the territorial jurisdiction, in relation to such area. Subsection (2) of this section empowers the Government to seek trial of a scheduled offence by any Anti-Terrorism Court having territorial jurisdiction. Section 13 empowers the Federal Government to establish, by notification, one or more Anti-Terrorism Courts and take any further administrative measures. Section 14 lays down the qualification of a Judge of Anti- Terrorism Court. Then comes section 19. It is very important provision. It relates to procedure and power of the Anti-Terrorism Court. This section contains 14 subsections. Subsection (1) mandates that officer-in--charge of a police station shall complete the investigation with regard to a scheduled offence within seven working days and put a report directly to that Court under section 173, Cr.P.C. Subsection (2) deals with any default/lapse on the part of the Investigating Officer and empowers the Court to deal with it. Subsection (3) specifically- states that the Anti-Terrorism Court may directly take cognizance of a case triable by it without the case being sent to it under section 190, Cr.P.C. Subsections (4) and (5) relate to police custody while subsection (6) enacts that Anti- Terrorism Court shall be deemed to be a Magistrate for the purpose of subsections (4) and (5).
Subsection (7) states that on taking the cognizance of the case, the Anti-Terrorism Court shall proceed with the case from day to day and shall conclude the matter within seven working days.
Subsections (8), (9), (10, (11), (11-A), (12) and (13) are of not much relevance. Then comes the last subsection i.e. (14). It postulates that, the Anti-Terrorism Court shall, for the purpose of trial of any offence, shall function and possess all the powers of Court of Session and try it in accordance with the procedure prescribed in the Code for trial of Sessions case. These are, in brief, salient features of this statutory instrument. Briefly, it can be said that Anti-Terrorism Court is a Special Court; it functions as a Sessions Court for the purpose of trying scheduled offences and acts falling within the ambit of section 6 of the Act, it is the only Court which has the power to try the scheduled offences; it is to follow the procedure as prescribed in Chapter relating to Sessions trial unless it is in conflict with any provision in the Anti-Terrorism Act.
12. The stage has now come to examine the inter-actions between section 19 of the Anti-Terrorism Act and sections 190, 190(3), 200 to 203 of the Code of Criminal Procedure. Section 190(3) lays down that any. Magistrate, who takes cognizance under subsections (1) of an offence triable by a Court of Session shall without recording any evidence, send the case to the Court of Session in accordance with law. Clearly the Magistrate may examine the material judicially for the purpose of taking cognizance of a case and if he so finds out that there is a prima facie which is triable by the learned Sessions Judge, he shall forward it to that Court. Section 190(3) provides an embargo on the power of the learned Sessions Judge. It specifically enacts that no Court of Sessions shall function as a Court of ordinary jurisdiction and take cognizance of any offence unless the case has been sent to it under section 190(3), Cr.P.C. By a Magistrate, empowered to do so.
13. The first difficulty which so arises, is due to section 190(3), Cr.P.C. And section, 19(3) of Anti- Terrorism Act, 1997. In order to solve the difficulty, we are inclined to refer to decision rendered by the apex Court in Riffat Hayat v. Judge 'Special Court for Suppression of Terrorist Activities, Lahore and another (1994 SCMR 2177). This case arose out of the Suppression of Terrorist Activities Act (Act XV of 1975). Coincidentally, section 5 and section 5(a) of this Act are pari materia with section 19(1) and (3) of Anti-Terrorism Act, 1997. These are as follows:--- Section 5 of Suppression of Terrorist ActivitiesSection 19(1)(3) of Anti- -Terrorism Act(XXVIIof Courts) Act, 1997)
5. Taking of cognizance .- -(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 subsection.-- Any default on the part of an officer-in-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 subsection (1), shall be deemed to be a willful disobedience of the order of the Special Court and dealt with under the law accordingly.19. Procedure and powers of [Anti- Terrorist Court].--(1) The officer-in- charge of a police station shall complete the investigation in respect of a case triable by a [Anti- Terrorism Court] within seven working days and forward directly to the [Anti-Terrorism Court) a report under section 173 of the Code: Provided that the [Anti-Terrorism Court) may extend the time within which such report is to be forwarded in a case where good reasons are shown for not being able, to do so within the time specified in this subsection.(2) Any default on the part of an officer-in-charge -of a police station an Investigating Officer I or any other person required by law to perform any functions in connection with the investigation, that result in, or has the effect of delaying the investigation, or the submission of the report under subsection (1), shall be deemed to be a willful disobedience of the order of the [Anti-Terrorism Court] and the person committing the default shall be liable to be punished for contempt of Court.
Section 5 of Suppression of Terrorist Activities (Special Courts) Act, 1975Section 19(1)(3) of Anti-- Terrorism Act(XXVIIof Courts) Act, 1997)
(3) The Special Court may directly take cognizance of a case triable by such Court without the case(3) The [Anti-Terrorism 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.(Special Court) Act, 1975 <p.m> </p.m> "Section 5(1) of the Act provides that the officer-in- charge of the police station, on completion of investigation, shall. Forward its report under being sent to it under section 190 of the Code.section 173 of the Code to the Special Court, within 14 days in respect of a case triable exclusively by the Special Court. Section 5(2) of the Act deals with the power of Special Court to extend time of 14 days prescribed under subsection (1) of section 5 of the Act for submission of police report and the consequences of delay and default in compliance with the provisions of section 5(1) by the police officer. Subsection (3) of section 5 of the Act provides that the Special Court may directly take cognizance of a case triable by that Court without the case being sent to it under section 190 of the Code. A comparison of provisions of section 190 of the Code with section 5 of the Act will show that neither application of section 173 nor 190 of the Code is excluded either specifically or by necessary implication. 'The, provision relating to taking of direct cognizance by the Special Court contained in subsection (3) of section 5 of the Act is not a new one as a similar provision for taking cognizance of the case directly by a 'Magistrate already existed under subsection (2) of section 190 of the Code. Section 5 of the Act, which appears to be a combination of sections 173 and 190 of the Code differs from the provisions only to the extent hereinafter indicated. Section 173 of the Code provides for submission of the report by the incharge of police station to the concerned Magistrate who in term forwards the same to the Court competent to try the case,. Under section 5 of the Act, the incharge of police station is required to submit the report in a case triable by Special Court directly to that Court. Section 173 of the Code provides no time limit for submission of the report on conclusion of investigation by the officer-in-charge of the police station to the concerned Magistrate while section 5 of the Act lays down a time limit of 14 days for submission of such a report to Special Court and delay in compliance of this time limit is punishable as disobedience of the order of Special Court. A Court of Session under section 193 of the Code is debarred from taking cognizance of a case as a Court of original jurisdiction unless the case is sent to it by a Magistrate under section 190(3) of the Code whereas a Special Court under the Act can take cognizance of a case directly as a Court of original jurisdiction in the same manner as a Magistrate is empowered to take cognizance of a case under section 190 of the Code."
As regards subsection (9) of section 5-A of the Act (ibid), it was observed as under:-- "'Subsection (9), section 5-A of the Act clearly provides that in all matters with respect to which no procedure has been prescribed under the Act, the procedure prescribed by the Code for cases triable by the Magistrate will be adopted. Therefore, only to the extent of the inconsistency and difference between the provisions of the Act and the Code, the provisions contained in the latter will not be applicable to the proceedings before the Special Court. The learned counsel for the appellant admitted that no specific procedure has been laid down under section 5-A of the Act for taking direct cognizance by the Special Court in a case triable by it. The only condition prescribed under-the Act for taking direction cognizance by the Special Court in a case triable by it is, that the case has not been sent to it under section 190 of the Code. Therefore, in our view the procedure prescribed under the Code for entertaining private complaints or taking direction cognizance of a case by the Magistrate insofar it is not inconsistent with the provisions of sections 5 and 5-A of the Act, was not excluded in its application to proceedings before the Special Court. Section 190 of the Code in its application to Special Court is neither excluded by express prohibition nor by necessary implication, except to the extent of the difference between the two provisions (section 5 of the Act and section 190 of the Code) indicated above. A direct complaint, therefore, in a case triable by the Special Court, which had not been sent to it under section 190 of the Code was maintainable. In the case before us, it is quite clear from the facts brought on record that no police report under section 173 of the Code or under section 5(1) of the Act, was submitted to the Special Court at the time the direct complaint was filed by the respondent before the Special Court. In these circumstances the Special Court was not only competent but rightly entertained the private complaint and issued, process to the accused persons after holding preliminary inquiry in the case. The subsequent filing of the police report under section 173 of the Code by the incharge of the police station long after filing of the private complaint before the Special Court by the respondent/complainant could not vest the Special Court of its jurisdiction under section 5(3) of the Act to take direct cognizance of the case. "'
14. The rule enunciated in the case of Riffat Hayat (supra) was followed by the Division Bench of Sindh High Court in Bago and 2 others v. The State (1996 PCr.LJ 1818). Applying the above rule propounded by the apex Court to petitions in hand, we have no hesitation in holding that the learned Anti-Terrorism Court had/has power to entertain a private complaint directly P if it disclosed/discloses the commission of offence falling within the ambit of section 6, Anti-Terrorism Act, 1997 and Schedule issued under section 2(e) of the Act.
15. Having answered question/point/proposition No. l we now turn to second point. Precisely, it is stated that the learned Special Judge, Anti---Terrorism Court was competent under section 100 read with section 202, Cr.P.C. To issue search warrant on 19-5-2000. Section 100, Cr.P.C. Occurs in Chapter VII of Code, which relates to processes to compel the production of documents and other movable property and for the discovery of persons wrongfully confined. Recoveries and searches are made under sections 95 to 105, Cr.P.C. On the orders of the Magistrate. A plain reading of section 100, Cr.P.C. Indicates that this provision is limited to recovery of a person wrongfully confined. The power, to issue search warrants, is conferred upon any Magistrate of First Class or Sub-Divisional Magistrate. Pendency of any investigation or enquiry is not a condition precedent for invocation of this section. The Magistrate is required to issue a warrant when he feels satisfied and has reason to believe that someone is being, wrongfully confined. The satisfaction of the Magistrate and existence of material relating to unlawful detention of such person a-a necessary.
No warrant under this section can be issued in a mechanical manner and without applying judicious mind to above necessary conditionalities. This power is, therefore, of semi judicial nature.
The application of mind is necessary. However, this power is not relatable to Chapter XVI. It is an independent provision having relation to necessities for recovering documents, other movable property and wrongfully confined persons. The persons, having this power, are specifically named therein i.e. Magistrate of First Class or Sub-Divisional Magistrate. Section 19 of the Anti-Terrorism Act clearly specifies that the Anti-Terrorism Court is a Court of Session and furthermore it is a Magistrate for the purpose of judicial custody and remand. The power under section 100, Cr.P.C.
Has not been conferred upon the learned Special Judge, Anti-Terrorism Court. On the above analysis, we have no doubt in our mind in holding that the learned Anti-Terrorism Court has no power or jurisdiction to issue search warrants under section 100, Cr.P.C. The question which now remains is whether the learned Anti-Terrorism Court has power under section 202, Cr.P.C. To issue such warrant under section 160, Cr.P.C. This seems to be a vexed question. In order to answer this question, it is necessary to have a fair comprehension of sections 200 to 203, Cr.P.C. These sections, as already noted fall in Chapter XVI of the Code of Criminal Procedure/relating to complaints to the Magistrate. These provisions form a chapter in themselves. This Chapter details procedure to deal with complaints moved by the private persons. Section 200, Cr.P.C. States that the Magistrate, taking cognizance of an offence on complaint, is bound to examine at once the complainant on oath and is required to reduce into writing the substance of such examination. The proviso to subsection (1) of section 200, Cr.P.C. States that if the complaint has been received by a Magistrate who is not competent to take cognizance of this case, he shall return the complaint for presentation to proper Court. Then comes section 202, Cr.P.C. This is a very important provision in this scheme. It states that any Court which receives a complaint of an offence which it is competent to take cognizance or it has been sent to it under section 190(3), Cr.P.C. Or transferred to it under section 191 or section 192, it may, if it thinks fit, postpone the issue of process for compelling the attendance of the person complained against. In this contingency, it may enquire into the case itself or direct an enquiry or investigation to be made by a police officer or by such other person as it thinks fit, for the purpose of ascertaining truth for falsehood of the complaint. Manifestly, the Magistrate who receives the complaint has a number of options. It was clarified in the case of The State v. Muhammad Usman and 6 others (PLD 1975 Karachi 390) that three courses are open to the Magistrate. He may hold an inquiry himself or if he is a Magistrate other than the Magistrate of 3rd Class, direct an inquiry to be held by Magistrate subordinate to him or he may have the inquiry held by a police officer. The ultimate decision whether the process is to be issued against the accused or postponed lies with the Magistrate. While dealing with a complaint under section 200 of the Cr.P.C., the Magistrate cannot direst the police to register a case. It was so held in the case of Abdul Haleem v. Raja Qurban Hussain and others (PLD 1965 (W.P.) Lahore 570). The relevant part of the judgment is reproduced below:-- "
10. The facts narrated above clearly indicate that Mr. Muhammad A.I; Magistrate, recorded the statement of Mst. Rashidan under section 200, Cr.P.C. As the complainant on the 15th of June, 1964 and then ordered that the paper be forwarded to S.H.O., Bhagtanwala for necessary action, Mr. Abdul Jabbar, to whom the case had been finally entrusted by the Additional District Magistrate, wrongly assumed the aforesaid order to be one under section 156(3), Cr.P.C. Where a complaint has been made, in respect of any offence and the Magistrate taking cognizance thereof considers, before the issue of process to the accused, that the matter should be investigated, he can order such investigation under section 202, Cr.P.C. And not under section 156(3), Cr.P.C. The reason being that once he has decided to take cognizance, he can no longer avail himself of the alternative procedure laid down in section 156, Cr.P.C. The order of Mr. Abdul Jabbar directing the Superintendent of Police to register a case was, therefore, a nullity. It is true that presumption attaches to orders of superior Courts that they are with jurisdiction, but no such presumption attaches to an order of subordinate Court. In the circumstances, Mir Bahadur A.I, Superintendent of Police, respondent No.3, did not commit any contempt of Court by disobeying the order which had no legal force."
15. The above aspects of sections 200 to 203 were considered by the Indian Supreme Court in Copal Das and others v. State of Assam and others (AIR 1961 Supreme Court 986). Para. No.7 of this case is useful and may be quoted here:-- "When the complaint was received by Mr. Thomas on 3-8-1957, his order, which we have already quoted, clearly indicates that did not make cognizance of the offences mentioned in the complaint but had sent the complaint under Section 156(3) of the Code to the Officer Incharge of Police Station Gauhati for investigation. Section 156(3) states 'Any Magistrate empowered under section 190 may order such investigation as abovementioned'. Mr. Thomas was certainly a Magistrate empowered to take cognizance under section 190 and he was empowered to take cognizance of an offence upon receiving a complaint. He, however, decided not to take cognizance but to send the complaint to the police for investigation as sections 147, 342 and 448 were cognizable offences.
It was, however, urged that once a complaint was filed the Magistrate .Was bound to take cognizance and proceed under Chapter XVI of the Code. It is clear, however, that 'Chapter XVI would come into play only if the Magistrate had taken cognizance of an offence on the complaint filed before him, because section 200 states that a Magistrate taking cognizance of an offence on the complaint shall at once examine the complainant and the witnesses present, if any, upon oath and the substance of the examination shall be reduced to writing and shall be signed by the complainant and the witnesses and also by the Magistrate. If the Magistrate had not taken cognizance of the offence on the complaint filed before him, he was not obliged to examine the complaint on oath and the witnesses present at the time of the filing of the complaint. We cannot read the provisions of section 190 to mean that once a complaint is filed, a Magistrate is bound to take cognizance if the facts stated in the complaint disclose the commission of any offence. We are unable to construe the word may in section 190 to mean 'must'. The reason is obvious. A complaint disclosing cognizable offences may well justify a Magistrate in sending the complaint, under, section 156(3) to the police, for investigation. There is no reason why the time of the Magistrate should be wasted when primarily the duty to investigate in cases involving cognizable offences is with the police. On the other hand, there may be occasions when the Magistrate may exercise his discretion and take cognizance of a cognizable offence. If he does so then he would have to proceed in tie manner provided by Chapter XVI of the Code. Numerous cases were cited before us in support of the submissions made on behalf of the appellants. Certain submissions were also made as to what is meant by 'taking cognizance'. It is unnecessary to refer to the case cited. The following observations of Mr. Justice Das Gupta in the case of Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Banerjee (AIR 1950 Cal. 437).
"What is taking cognizance has not been defined in the Criminal Procedure Code and I have no desire to attempt to define it. It seems to me clear, however, that Before it can be said that any Magistrate has taken cognizance of any offence under section 190(1)(a), Criminal Procedure Code, he must not only have applied his mind to the contents of the petition but he must have done so for the purpose of proceeding in particular way as indicated in the subsequent provisions of this Chapter-proceedings under section 200 and thereafter, sending it for enquiry and report under section 202. When the. Magistrate applies his mind not for the purpose of proceedings under the subsequent sections of this Chapter, but for taking action of some other kind, e.g., ordering investigation under section 156(3) or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence." were approved by this Court in R.R. Chari v. State Uttar Pardesh, 1951 SCR 312: (AIR 1951 SC 207). It would be clear from the observations of Mr. Justice Das Gupta that when Magistrate applies his mind not for the purpose of proceedings under the various sections of Chapter XVI but for taking action of some other kind, e.g. Ordering investigation under section 156(3) or issuing a search warrant for the purpose of investigation; he cannot be said to have taken cognizance of any offence. The observations of Mr. Justice Das Gupta above-referred to were also approved by this Court in the case of Naraiyandes Bhagwandas Madhava v. State of West Bengal, (1960)1 SCR 93 (AIR 1959 SC 1118). It will be clear, therefore, that in the present case, neither the Additional District Magistrate nor Mr. Thomas applied his mind to the complaint filed on 3-8-1957, with a view to taking cognizance of an offence. The Additional District Magistrate passed on the complaint to Mr. Thomas to deal with it. Mr. Thomas seeing that-cognizable offences were mentioned in the plaint did not apply his mind to it with a view to taking cognizance of any offence; on the contrary in his opinion, it was a matter to be investigated by the police under section 156(3) of the Code. The action of Mr. Thomas comes within the observation of Mr. Justice Das Gupta. In these circumstances, we do not think that the first contention on behalf of the appellant has any substance. "
16. From the foregoing discussion, it is thus, clear that sections 200 to 203, Cr.P.C. Deal with the procedure pertaining to receiving of direct complaint by a Court of competent jurisdiction. The Magistrate/Judge, who receives the complaint, is required to record the statement of the complainant at once and reduce it in writing. On the basis of such statement/material, he is to ascertain whether the complaint and such material disclose the commission of offence warranting issuance of process against the person complained or not. Under section 202, Cr.P.C. He has the power to postpone the process and refuse to call the person complained against for the purpose of making further inquiry himself or getting the matter inquired into by Police Officer or any other person he deems fit. This power is given to the Magistrate in order to find out the truth or falsehood of the allegation embodied in the complaint. Thus when the Magistrate receives the complaint, he has two options. He may send the complaint to the concerned S.H.O. For proceedings under section 156(3), Cr.P.C. In such eventuality, the S.H.O. Concerned will record the statement of the complainant and register the case if such statement discloses the commission of offence. This means that the Magistrate has refused to take cognizance of the matter and has sent it to the police authorities. The Magistrate has another alternative as well. He may record the statement of the complainant, witnesses and make an effort to find out as to whether the statement of the complainant and material produced before by him discloses the commission of offences/warranting issuance of process against the persons complained. Under section 202 of the Code, he may postpone the process and proceed to make further inquiry himself or get the matter enquired into by some police officer; or by such other person, as he things fit. If he proceeds under section 202 of the Code and attempts to make further inquiry, he has no power to proceed under section 100 of the Code. This is a quasi---ministerial, power, which is to be exercised by a Special Judge/Magistrate within the ambit of section 100 of the Code. This is not a judicial power but a quasi judicial power. On the above analysis, we find substance in the contentions that the order passed by the learned Special Judge, Anti---Terrorism Court dated 19-5-2000 was coram non judice, totally without jurisdiction; hence has no legal sanctity.
17. Insofar proposition/point/question No.3 is concerned, suffice it to say that this is taken care of by section 78 and section 79 of Pakistan Penal Code. A bare reading of section 78 shows that nothing which is done in pursuance of, or which is warranted by the judgment or order of, a Court of Justice is done whilst such judgment or order remains in force, is an offence, notwithstanding the Court may have had no jurisdiction to pass such judgment or order. It further says that the person who has done such act must have acted in good faith and believes that the Court had such jurisdiction.
This section falls in Chapter IV which relates to general exceptions. From the above, it is thus clear that any act which is done in compliance with the judgment or order of the Court while such order or judgment remains in force is not an offence even if the such order or judgment was/is without jurisdiction. This exception is clearly applicable to the facts and circumstances of the case in hand.
From the forgiven narrative; of the case, it is quite clear that the team of the bailiffs conducted the raid on 19-5-2000 in pursuance of order passed by learned Special Judges Anti---Terrorism Court.
They acted in good faith and had believed that the Court had such jurisdiction. No allegation has been made that the Bailiffs were motivated/actuated by any malice or in collusion with any party.
Even the learned Advocate-General stated before the Court that he will not oppose the quashment of the F. I. R. No. 131 of 2000 to the extent of learned Advocates. On the basis of above discussion, it is crystal clear to us that registration of F.I.R. No. 131 of 2000 against the learned Advocates/team of Bailiffs and the persons, who were recovered from Union Council, Wahga was wholly without jurisdiction and cannot sustain. Resultantly, we declare that the firm view that the F.I.R. No.131 of 2000, dated 24-5-2000 Police Station Batapur, Lahore was registered without any lawful authority and is of no legal consequence.
18. Having decided points/questions Nos.1, 2 and 3, we now reach point No.4. The case of Ghulam Qambar is that he was kidnapped from the main gate of office of the Accountant General, Punjab, Lahore and had been kept in illegal confinement from 2-1-2000 till he was sent to judicial remand by the learned Special Judge, Anti-Corruption, while case of Investigating Officer Sayed Muhammad Abbas, S.H.O. Is that he was arrested on 19-5-2000 and was going to be taken to the Court for his physical remand. It was strenuously stated by Dr. A. Basit, Advocate that he had been in custody for more than 100 days and that Abbas, S.H.O. Was in collusion with Col. (Retd.) Ihtesham for the purpose of helping to destroy evidence pertaining to commission of forgeries and massive embezzlement of public funds. From the papers produced in the Court, it transpires that Abbas, S.H.O. Had conducted the investigation of the case in accordance with directions of superior police officers and even had not spared aforesaid Col. (Retd.) Ihtesham. A number of very high officials had been, found by him guilty of being involved in a massive scandal. At this stage, we are not required and it will not be proper to examine the competing claims of both the sides lest it may prejudice the Court, where the ultimate trial of the case (F.I.R. No.1 of 2000) is to be held. The entire controversy pertains to realm E of facts and there are two versions. The learned trial Court will be within its rights and powers to examine the allegation of illegal detention of Ghulam Qambar Chadhar and if the trial Court finds so, it will be within its jurisdiction to proceed against any delinquent official including Abbas, S.H.O. We entirely agree with the learned counsel for the petitioners that everyone is to be given equal protection of his body and protecting of movement in accordance with the Constitution. Nobody can be arrested and kept in confinement by the police against the Constitutional mandate as embodie in Articles 4, 9 and 10 of the Constitution. We are very certain that the learned trial Court will examine this matter earnestly.
19. On the basis of our foregoing conclusions, we are clear in our mind that the petitioners are entitled to the following reliefs:--
(1) F.I.R. No. 131 of 2000, recorded at Police Station Batapur, Lahore on 24-5-2000, is declared to have been registered and action commenced thereof without lawful authority and of no lawful consequence. Resultantly, the same is hereby quashed. Imran Raza, Advocate/complainant in Anti-Terrorism Court, Mr. Zafar Mehmood Chaudry, Advocate and Mr. Hamaad Raza, Naqvi, Advocate had been unlawfully named in the aforesaid F.I.R. And the action was commenced against them without any legal foundation. Similarly, it could not have been registered and action started under Criminal Law against the remaining accused. All of them shall be entitled to, compensatory costs of Rs.10,000 each payable by the State.
(2) The order of the learned Anti-Terrorism Court dated 19-5-2000 is declared to have been passed without any jurisdiction and is accordingly treated of no lawful consequence. The learned Special Judge, Anti-Terrorism Court, however, shall decide the application moved by the respondent on the question of maintainability of complaint filed by Mr. Imran Raza, Advocate. The learned Anti--- Terrorism Court, while undertaking this exercise, shall decide the application as to whether complaint fled by Mr. Imran Raza, Advocate falls within the ambit of section 6 and the Schedule issued under section 2(e) of the Anti-Terrorism Act, 1997. He shall decide this matter after affording opportunity of hearing and after taking into consideration material placed by the parties; and
(3) Nothing container in this order shall have any effect/bearing on investigation being made by Investigating Authorities in F.I.R. No. 1 of 2000 registered at Police Station Barki, Lahore. As a result of the above conclusion and grant of the reliefs, Criminal Miscellaneous No.72'7-H of 2000, Writ Petitions Nos.1004, 1005 and 10805 of 2000 stand disposed of in the above terms.
20. Before parting with order, we are persuaded to note that incident of 2-6-2000 had come to an end with a happy note. On 2-6-2000, one of us (the Chief Justice) was confronted with unpleasant behaviour. Nevertheless he exercised judicial restraint and proceeded to constitute a Full Bench for hearing the abovementioned causes. He did not choose to proceed under Article 204 of the Constitution read with sections 3 and 4 of the Contempt of Court Act, 1976 and left the matter to the collective conscience of the members of the Bar. On the next date of hearing before the Full Bench, Dr. A. Basit expressed his unconditional regrets and stated that he was sorry for the aforesaid incident. From the tenor of his statement, it seemed very clear that his regrets flowed from his heart. The President, High Court Bar Association, the Vice-Chairman of Pakistan Bar Council, the Chairman, Executive Committee, Punjab Bar Council expressed the same sentiments.
They unequivocally stated that if any matter was referred to them they would deal with it strictly in accordance with law. Bench and Bar are two indispensable wheels of the chariot of administration of justice. Both are supplementary and complementary to the institutional system of adversarial hearing. Violent language, dictative propensities on the part of an Advocate and impatience during the course of hearing of a cause on the part of the Judge are alien to the system of administration of justice. The administration of justice, briefly speaking, is a sustentative methodology for settling the dispute between the parties in a peaceful manner and through impartial procedure by an independent Judiciary. It substitutes the flagrant course of armed encounter and blood feud and use of the physical force by the parties for settling their disputes.
The system is scintillating embellishment of civilized behaviour. These objectives are achieved through strong arid independent Judiciary. The concept of weakness or imperious behaviour is not known to this system. The source of system lies upon humility and patience on the part of the Judiciary. In view of the above, we felt moved by the sentiments exhibited by the Bar, its representatives and even Dr. A. Basit, Advocate. In view of the above, we are inclined to proceed no further in the matter and are contents to record that the aforesaid incident had come to an end with the active cooperation of the Bench and the Bar.