1. ' MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---All the above bail applications arise out of two F.I.Rs,, one being Crime No,68 of 2001 recorded at Police Station Baberloi District Khairpur and the other being Crime No,101 of 2001 recorded at Police Station 'A' Section, Khairpur.
2. ' The facts and circumstances in both the F.I.Rs, are almost similar. Both the F.I.Rs, were recorded as a result of Dharna at the instance of two political parties on account of shortage of water in Sindh.
3. ' All the applicants have been challaned to face trial in the Court of Special Judge S.T.A., Khairpur under sections 324, 353, 147, 148, 149, 123-A and 124-A, P.P.C. In F.I.R. No:68 of 2001 one T.T. Pistol is alleged to have been recovered from one applicant and in Crime No,101 of 2001 of Police Station, 'A'
4. Section Khairpur two T.T. Pistols are alleged to have been recovered.
5. ' All the applicants submitted bail applications before the Special Judge S.T.A. Court Khairpur and the bail applications of all the applications have been dismissed for the similar reasons.
6. ' The main plea raised before the trial Court on behalf of the applicants was that the main offence is alleged under 'sections 123-A and 124-A, P.P.C. So far the other offences are concerned it was alleged that nobody sustained any injury from the alleged firing and no other offence was alleged to have been committed and the punishment provided in other sections were lesser. Thus, main consideration was that even if the offences under sections 123-A and 124-A, P.P.C. Were committed at all, whether the S.T.A. Court had the jurisdiction to take cognizance, for want of complaint made by order of or under authority from the Central Government or the Provincial Government concerned or some officer empowered in this behalf by either of the two Governments as provided in section 196, Cr.P.C. We would like to observe that admittedly the provisions contained in section 196 Cr.P.0 have not been complied with. The learned trial Court repelled the contention that it was not empowered to take cognizance because of the provisions contained in section 196 Cr.P.C. The trial Court held that S.T.A. Act is a special law and the offences under sections 123-A and 124-A, P.P.C. Are mentioned in the Schedule to the S.T.A Act and, therefore, section 196, Cr.P.0 is not attracted.
7. ' The learned Trial Court further observed that applicants have been assigned specific role of raising slogans against the State of Pakistan and the witnesses have fully implicated all the applicants in section 161, Cr.P.C. While dismissing the bail applications arising out of F.I.R. No,68 of 2001 of Police Station, Baberloi, the Trial Court further observed that the order was without prejudice to the merits of the case. However, while dismissing the bail applications arising out of F.I.R. No,101 of 2001 of Police Station, A-Section Khairpur, the learned Trial Court made no such observation but the perusal of the order shows that the merits have not been considered and the bail applications have been rejected in a summary manner.
8. ' We have heard Mr. Imdad Ali Awan learned counsel for the applicants in Bail Applications Nos. 400 and 418 of 2001 arising out of F.I.R. No,68 of 2001 of Police Station Baberloi and the other learned Advocates have adopted the arguments addressed by Mr. Imdad Ali Awan.
9. ' Mr. Imdad Ali Awan has drawn our attention to the provisions contained in section 196, Cr.P.0 which reads as follows: "196. Prosecution for offences against the State---No Court shall take cognizance of any offence punishable under Chapter VI of IX-A of the Pakistan Penal Code (except section 127), or punishable under section 108-A, or section 153-A, or section 294-A or section 295-A or section 505 of the same Code, unless upon complaint made by order of or under authority from the Central Government, or the Provincial Government concerned, or some officer empowered in this behalf by either of the two Governments."
10. ' He has vehemently argued that section 196, Cr.P.C. Starts with the words "No Court shall take cognizance of any offence punishable under Chapter VI of IX-A of the P.P.C.", meaning thereby that it is applicable to all Courts whether established under the Cr.P.C. S.T.A. Act or any other law for the time being in force. He has submitted that the provision is in general terms and does not admit of any exception and consequently the learned trial Court was not justified in holding that the S.T.A.
11. Court being a Special Court constituted under special law is not covered by the provisions contained in section 196, Cr.P.C.
12. ' Mr. Imdad Ali Awan has further referred to section 4 of the Suppression of Terrorist Activities (Special Courts) Act, 1975 (hereinafter referred to as the S.T.A. Act), which provides that notwithstanding any contained in the Code, the scheduled offences shall be triable exclusively by a Special Court, Mr. Imdad Ali Awan has submitted that section 4 of the S.T.A. Court has merely conferred jurisdiction on the S.T.A. Court to try the offences mentioned in the Schedule to the S.T.A.
13. Act and the applicants do not assail the jurisdiction to try the offences mentioned in the Schedule.
14. He has conceded that sections 123-A and 124-A, P.P.C. Are mentioned in the Schedule. However, Mr. Imdad Ali Awan has submitted that the conferment of jurisdiction on S.T.A. Court under section 4 does not mean that the applicability of section 196, Cr.P.C. Is excluded. He has submitted that if section 106, Cr.P.C. And section 4 of the S.T.A. Act are read together the logical conclusion would be that instead of ordinary Court under Cr.P.C., the offence shall be tried by the S.T.A. Court but subject to the general provisions contained in section 196, Cr.P.C. The condition precedent for taking cognizance under section 196, Cr.P.C. Is that either there should be complaint made by order of or under authority from the Central Government, or the Provincial Government concerned, or some officer empowered in this behalf by either of the two Governments. This condition precedent is lacking and consequently the S.T.A. Court Khairpur is not empowered to take cognizance, with the result that the remanding of applicants by a Court having no power to take cognizance would amount to keeping the applicants/accused persons in illegal confinement and consequently the applicants are entitled to be released on bail, on the point of law.
15. ' Mr. Imdad Ali Awan and the other learned Advocates have argued, the bail plea on merits as well but in view of the order proposed to be made, we do not intend, to dilate on the merits.
16. ' Mr. G.A. Shahani learned Additional Advocate-General has opposed the grant of bail and has supported the finding of learned trial Court that the S.T.A. Court being a Special Court established under a Special Act, the provisions of section 196, Cr.P.C. Are not attracted.
17. ' We have carefully considered the contentions raised at the bar and the impugned order, as well as the relevant provisions of law. Since the trial Court as well as the learned Additional Advocate- General have not elaborated the relevant provisions, excluding the applicability of section 196, Cr.P.C., therefore, we would like to advert to the relevant provisions of which notice has not been taken by the trial Court as well as learned Additional Advocate-General.
18. ' Before referring to the relevant provisions in the S.T.A. Act 1975, we would like to observe that it is an established principle of Interpretation of Statutes that the special laws exclude the general laws and the special provisions in a Statute exclude the general provisions contained in the same Statute.
19. ' Now we come to the provisions contained in S.T.A. Act. The S.T.A. Courts are established under section 3 of the S.T.A. Act and as pointed out by Mr. Imdad Ali Awan, the jurisdiction is conferred on the S.T.A. Court under section 4 of S.T.A. Act.
20. ' So far the taking of cognizance is concerned it has been dealt with in section 5 of the S.T.A. Act. At this stage we would like to clarify that sometimes the jurisdiction of a Court and taking of cognizance by the Court having jurisdiction is confused and mixed up. The jurisdiction of a Court is not the same as the taking of cognizance by a Court. These two issues are independent of each other and . Should be considered independently and separately. If the Court has jurisdiction to try a offence it does not mean that it can take cognizance of the offence otherwise than in the way provided by law. For example a Sessions Court has the jurisdiction to try an offence under section 302, P.P.C. And for taking cognizance of the said offence a procedure is .Provided in the Cr.P.C. The Sessions Court cannot take cognizance otherwise than recourse to the said provisions. We will refer sections 190 and 193. Cr.P.C. It is provided in section 190(3) that a Magistrate taking cognizance under subsection (1) of section 190 of an offence triable exclusively by a Court of Sessions shall without recording any evidence send the case to the Court of Sessions for trial, and it is provided in subsection (1) of section 193 that except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been sent to it under section 190(3). Now these provisions are in addition to the jurisdiction under Second Schedule to the Cr.P.C. Which provides that an offence under section 302, P.P.C. Is triable by a Court of Session.
21. ' Now we come to sections 123-A and 124-A, P.P.C. Which are also triable by a Court of Session under the ordinary course, according to the Second Schedule to the Cr.P.C. And the provisions contained in section 190 as well as section 193, Cr.P.C. Are to be complied with for taking cognizance. In addition thereto, the provisions contained in section 196, Cr.P.C. Are also to be adhered to for the purpose of taking cognizance of an offence punishable under sections 123-A and 124-A, P.P.C.
22. ' There are whole set of sections in Cr.P.C. Dealing with the subject and here we do not intend to give survey of entire provisions, but few sections have been cited just for the purpose of illustration and to clarify that the jurisdiction of a Court and taking of cognizance by a Court is not one and same thing and they are to be considered separately.
23. ' Now, reverting to the issue under hand, we find that admittedly the jurisdiction on S.T.A. Court is conferred under section 4 of the S.T.A Act, but the taking of cognizance is dealt with in section 5 which reads as follows: "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 ill a case where good reasons are shown for not doing 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 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 wilful disobedience of the order of the Special Court and dealt with under the law accordingly.
(3) The Special Court may directly take cognizance of a case triable by such Court without the case being sent to it under section 190 of the Code."
24. ' A perusal of above section shows that under subsection (1) of section 5, it is provided that an 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. It is further provided in subsection (3) of section 5 that the Special Court may directly take cognizance of a case triable by such Court without the case being sent to it under section 190 of the Code. A bare perusal of the above provision shows that there is a marked deviation from the provisions contained in Cr.P.C. If cognizance of an offence is to be taken by an ordinary Court under the provisions of Cr.P.C. The Sessions Court cannot take the cognizance directly and report under section 173, Cr.P.C. Cannot be submitted directly before the trial Court in respect of offence under section 123-A, Cr.P.C. However, if the offence is tried under the S.T.A. Act, the report under section 173, Cr.P.C. Shall be submitted directly before the Special Court.
25. ' It is further provided in section 5-A (9) that a Special Court shall in all matters with respect to which no procedure has been prescribed by this Act, follow the procedure prescribed by the Code for the trial of cases by Magistrates. This provision is confined to the procedure prescribed for trial of cases and it does not deal with the issue of taking cognizance by a Court.
26. ' It is further provided in section 10 of the S.T.A. Act that the provisions of this Act shall have effect notwithstanding anything contained in the Code or any other law for the time being in force.
27. ' Thus, the point for consideration is, whether in view of the overriding provision contained in section 10 of S.T.A. Act, the provisions contained in section 196, Cr.P.C. Shall be attracted for taking cognizance by the S.T.A. Court. We are of the opinion that the overriding provision contained in section 10 of S.T.A. Act, shall have the effect of excluding the normal provisions contained in Cr.P.C.
28. Which is a general law dealing with the provisions pertaining to the investigation, recording of F.I.R., procedure of trial, powers of various Courts established under the Cr.P.C. And all other procedural matters pertaining and incidental to the investigation, enquiry and trial. In view of the specific provisions contained in section 5 which deals with the issue pertaining to the taking of cognizance by the Special Court, all the provisions contained in Cr.P.C. Regarding the taking of cognizance by the Court including sections 190, 193, 196, Cr.P.C. And any other sections shall stand excluded.
29. ' As observed earlier the established principle of Statute is that the Special Acts exclude the applicability of the general provisions contained in Cr.P.C. Section 196, Cr.P.C. Is included in part-VI, Chapter XV which deals with the jurisdiction of the Criminal Courts of enquires and trials, and is further placed in part 'B' which prescribed conditions requisite for initiation of proceedings. Sections 190 and 193 are also included in the same Chapter. The S.T.A. Act has its own mechanism and, therefore, in section 4 a non-obstante clause has been inserted. Subsection (1) starts with the word "notwithstanding anything contained in the Code, the schedule offences shall be triable exclusively by a Special Court". When this non-obstante clause contained in section 4 of the S.T.A. Act is read with provisions contained in section 5 and section 10 of the S.T.A. Act, it leaves no scintilla of doubt, that the provisions contained in S.T.A. Act override the provisions contained in Cr.P.C. Except to the extent which are specifically made applicable under the provisions of S.T.A. Act itself.
30. ' For the foregoing reasons we are of the considered view that the trial Court has rightly held that section 196 is not attracted for taking cognizance of offences under the S.T.A. Act. In spite of very erudite and able arguments advanced by Mr. Imdad Ali Awan and valuable assistance provided by him, we are not persuaded to agree with his contention which is hereby repelled.
31. ' As observed in the earlier part of this order the trial Court has not considered the merits of the case and it appears that the trial Court was influenced with the fact that since the offence is triable under the Special Act and offences alleged under sections 123-A and 124-A, P.P.C. Are serious in nature, therefore, applicants are not entitled to bail in the ordinary course. We do not subscribe to such attitude on the part of S.T.A. Court. Notwithstanding seriousness of allegation, the trial Court is required to consider the case on merits and to give a finding whether in the facts and circumstances of the case a person is entitled to be released on bail or not. As rightly argued by Mr.' Imdad Ali Awan, the entire background and the circumstances in totality are to be considered by a Court to decide whether a person is entitled for bail or not. Under the Constitution of Islamic Republic of Pakistan, 1973 it is fundamental right of every citizen to raise voice against anything which he feels to be unjustified or discriminatory with the condition that he has to remain within the precincts of law. Thus, in the absence of section 144, Cr.P.C. Or any other law prohibiting gathering of persons or taking of procession it shall be within the lawful right of a citizen to do so. The learned trial Court has observed that the applicants were members of an unlawful assembly and the police attempted to prevent the unlawful assembly. But there is nothing on the record to show that there was any law making the gathering an unlawful assembly. Thus, if some persons have raised slogans against Pakistan it is to be determined, of course tentatively at the stage of bail, whether every person protesting against the shortage of water would be vicariously responsible for irresponsible act on the part of few persons. A balance is to be struck in the liberty of citizens and the respect and integrity of the State, its sovereignty and maintenance of law and order. Since the trial Court has not examined the merits of the case, therefore, all the matters are remanded back to the trial Court with the direction that although the trial Court has taken cognizance in accordance with the law but the applicants are also entitled to be treated in accordance with the law and, therefore, the trial Court should examine the facts by going through 161, Cr.P.C. Statements.
32. It should be examined if there is specific role of rising anti Pakistan slogans against any particular person in the background that under section 149, P.P.C. Every member of unlawful assembly is guilty of offence committed in prosecution of common object and as stated in F.I.R. No,101 of 2001 information was received that some persons were coming in the bus led by Ashraf Ali Leghari and others and as submitted by Mr. Imdad Ali Awan their object was to raise voice against the shortage of water and primarily their object was not to commit any act of sedition or condemn the creation of State and to advocate the abolition of its sovereignty. The trial Court is further directed to decide the applications on merits, keeping the above observations in view.
33. ' All the bail applications stand disposed of accordingly.