STATE Versus MUHAMMAD ZAHEER ALIAS DADA
ORDER
1. The above named accused have been challaned by the S.H.O., Police Station North Nazimabad, Karachi under section 14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 read with sections 380 and 457, P.P.C. The prosecution case may be briefly stated as under:‑‑
2. On 4‑5‑1991 Inspector Ainuddin Qureshi was on patrol duty in the jurisdiction of his Police Station North Nazimabad, Karachi when he received information of this offence from complainant Zahid Hussain to the effect that he was carrying on jewellery business in Shop No.8 of Mashallah Market under the name and style of `Rajput Jewellers'. On 2‑5‑1991 at about 9‑30 p.m. he closed his shop 3‑5‑19‑ was Friday. Hence on 4‑5‑1991 at 10‑45 a.rn. reopened the shop and found the locks of the shop broken and the articles lying scattered: The ornaments of the show‑cases were missing. The value of the missing ornaments was Rs.1,50,00,000 (Rupees one and a half crores). Consequently the S.H.O. took down the F.I.R. on a plain paper and then incorporated it in 154, Cr.P.C. Book. He started the investigation and also brought the crime to the notice of the superior Officers. On 14‑5‑1991 on receipt of spy information S.I. Sultan Ahmed of Special Investigation Cell (S.1.C.) alongwith subordinates, in presence of Mashirs, raided an under construction house in Gabole Town at 4‑00 a.m. Two unidentified persons scaled over the wall firing shots and carrying a brief‑case in their hands and ran away towards the river. The police party entered into the house where they found accused Muhammad Zahecr, Muhammad Nascer. Abdul Rauf, Aamer and Mirza Nisar Baig carrying fire‑arms and ammunition. They named the culprits, who had run away as Javed and Bagh Ali. S.I. Sultan Ahmed interrogated these five accused. On interrogation accused Zaheer made discovery of a cloth bag containing ornaments, weighing 1100 grams, accused Muhammad Naseer made discovery of a pillow cover containing gold ornaments weighing 2230 grams, accused Abdul Rauf made discovery of an envelope containing Rs.2,82,990 and accused Aamer made discovery of a bundle of cloth containing gold ornaments weighing 940 grams, while accused Mirza Nisar Baig did not make any discovery. Consequently all the five accused were arrested and separate cases under the Arms Ordinance and under sections 399 and 402, P.P.C. were registered against them. The complainant identified all the ornaments to be his stolen ornaments which were delivered to the complainant on `Sapurdaginama'.
2. Mr. Abdul Waheed Siddiqui, Advocate, who appeared for the accused, has raised a preliminary objection to the jurisdiction of this Court. It is contended that neither the offence under section 14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, nor those under section 380 or 457, P.P.C. which are proposed to be covered by the above provision of the Hudood Ordinance, find place in the Schedule of Ordinance NOXXV of 1991. It was additionally contended that even if the offence alleged against the accused was proposed to be brought under the Schedule by the words `under the law of tire land for the time being in force', the same being subject to an opinion of the Federal Government in terms mentioned in clause (c) of section 2 of Ordinance XXV of 1991 could not be validly challaned in or transferred to this Special Court without the declaration of such an opinion in the order passed under section 5 thereof.
3. Mr. Shaukat Zubedi, learned Special Public Prosecution, relying upon the Transfer Order, dated 14‑9‑1991, submitted that the transfer having been ordered by the Federal Government under section 5 of the Ordinance expressing; an opinion that the case should be tried and decided `speedily' implied that it had formed the opinion requisite for the purposes of clause (c) of section 2 of Ordinance XXV of 1991 in respect of this case and no express declaration of such opinion was necessary.
4. It is clear from the submissions made by the learned defence counsel and the learned Special Public Prosecutor that the question as to whether in a case where an offence is not a scheduled offence, like section 14, Enforcement of Hadd Ordinance or sections 380 and 457 or 411, P.P.C., a declaration in terms required by clause (c) of section 2 of the Ordinance is necessary or not. The transfer Order that has been received in this Special Court reads as under: ‑‑
3. Islamabad,
4. Dated the 14th September, 1991.
ORDER
5. Whereas the Federal Government is of opinion that the cases ' specified in column (1) of the table below relating to offences specified therein should be tried and decided speedily;
6. Now, therefore, in exercise of the powers conferred by section 5 of the Special Courts for Speedy Trials Ordinance, 1991 (XXV of 1991), the Federal Government is pleased to order that the said cases shall be tried and decided by the Special Court specified in column (2) thereof.
TABLE
7. Particulars of cases Special Court
8. 1 ` .. . 2
2. F.I.R. No. 167/91, dated Special Court (consisting of Mr.
9. 4‑5‑1991 Police Station Justice Syed AbdurRehman),
10. North Nazimabad, Karachi
11. Karachi, under section 14, 1 JA
12. E.H.O.
13. ' (ABDUL JALIL SIDDIQI),
14. Deputy Secretary."
15. A perusal of this order clearly shows that the declaration of the opinion requisite in clause (c) of section 2 of the Ordinance docs not find place in this order in express terms.
5. In order to appreciate the preliminary objection raised by learned counsel Mr. Abdul Waheed Siddiqui appearing for the accused, it will be necessary to reproduce the definition of the word `offence' in clause (c) of section 2 of the Ordinance XXV of 1991, which reads as under:‑‑
16. "2. Definitions .‑‑‑In this Ordinance, unless there is anything repugnant in the subject or context‑‑
(a) .
17. (b)..................................................................
(c) `offence' means an offence specified in the Schedule, or an offence punishable under any law for the time being in force, which in the opinion of the Government is gruesome, brutal and sensational in character or shocking to public morality or has led to public outrage or created panic or an atmosphere of fear or anxiety amongst the public or a section thereof or which because of increase !n its incidence needs to be tried most speedily."
18. A perusal of the above definition makes it quite clear that an offence can be termed to be an offence only when either (i) it is specified in the Schedule, or (ii) when it is an offence punishable under any law for the time being in force even though not mentioned in the Schedule, provided it `in the opinion of the Government is gruesome, brutal and sensational in character or shocking to public morality or has led to public outrage or created panic or an atmosphere of fear or anxiety amongst the public or a section thereof or which because of increase in its incidence needs to be tried most speedily' i.e. it conforms to the guidelines mentioned in the above provision. A Special Court can, therefore, take cognizance of such an offence under section 5 or 7 of the Ordinance only when an order is passed by the Federal Government as required by section 5 thereof, which should be within the four corners of the definition of offence provided in clause (c) of section 2 of the Special Courts for Speedy Trials Ordinance, 1991 (XXV of 1991) i.e.' either it should be an offence specified in the Schedule or if it is an offence punishable under any law for the time being in force, then it should be expressed that it is in the opinion of the Government gruesome, brutal and sensational in character or shocking to public morality or has led to public outrage or created panic or an atmosphere of fear or anxiety amongst the public or a section thereof or which because of increase in its incidence needs to be tried most speedily.
6. A reference in this connection spay be made to the decision of the honourable Supreme Court in the case of Muhammad Yaqub v. Government of Balochistan and another P L D 1989 SC 13 which is almost identical to the present case. It related to a case under a Special Courts for Speedy Trials Act, 1987 (XV of 1987) 'which is almost similar to the Special Courts for Speedy Trials Ordinance, 1991 (XXV of 1991). In that case the accused was booked for murder of a Traffic Sergeant by firing pistol shot at him on 21‑9‑1987 causing his death. He was challaned after usual investigation in Sessions Court Quetta and the trial had commenced. On 26‑6‑1988 Additional Clhiuf Secretary, (Home) Government of Balochistan passed an order transferring the case to Special Court for Speedy Trials under subscction (2) of section 5 of the Special Courts for Speedy Trials Act, 1987 (XV of 1987). The order was tot the following effect: ‑‑
19. "No. S.O.(Judl.)8(1)/87‑VII./861‑65.‑‑In exercise of powers conferred under section 5 of the Special Courts for Speedy Trials Act. 1987 (XV of 1987), the Government of balochistan is pleased to transfer the case F_I_R. No.93/87 under section 302, P.P.C. of Police Station City Quetta pending in the Court of Additional Sessions Judge‑1, Quetta to the Special Court headed by Mr. Justice Mir Hazar Khan Khoso, established vide Government of Balochistan's Notification No.SO(Judl.)5(10)/87, dated the 5th May, 1988."
20. The order was challenged in a Constitutional petition before the honourable Supreme Court. The petition was converted into an appeal and was allowed resulting in the quashment of the order of Government of Balochistan. It will be useful to reproduce,. the following observations of the honourable Supreme Court:‑‑
21. "In order to appreciate the contention of the learned counsel for the petitioner, it will be necessary to examine the definition of the word offence' in clause 2(c) which means `an offence specified in the Schedule which, in the opinion of, the Government, is gruesome, brutal and sensational in character or shocking to public morality or. has led to public outrage or created panic or an atmosphere of fear, or anxiety amongst the public or a section thereof.'
22. In the context of this definition, an offence cannot be an offence specified in the Schedule unless it conforms to the guidelines mentioned above. It is the commission of this offence which the `Special Court can take cognizance of under section 7 of the Act in pursuance of a report under section 173 of the Code of Criminal Procedure. There is, therefore, a duty cast on the Special Court before it takes cognizance to satisfy itself that the guidelines exist to give to it the jurisdiction to try the case. Reading, therefore, the definition of the word `offence' in section 2(c) and section 5 of the Act together a conclusion is obvious that unless the `offence' satisfies the guidelines enumerated to the definition, the power to transfer the case cannot arise in the public interest which is an expression of wide import and means `general social welfare or‑ regard for social good and predicating interest of the general public in matters where a regard for the social good is of the first moment.' (See Law Lexicon, 2nd Edition, 1986, Vo1.3, pp.1956‑1957). The opinion, therefore, should be relatable to the guidelines which are elemental in the concept of `public interest' and this should appear from the order itself.
23. We find from the order that while transferring the‑ case from the. Court of a competent jurisdiction, there is no consideration of the guidelines which renders the order, on the face of it, illegal. Needless to say that as there is deprivation of jurisdiction of the competent Court,' the power is to be exercised with care and caution within the parameters laid down in the Act.
24. Somewhat similar situation had arisen in a recent unreported case (Criminal Appeal No.2 of 1991) in the Supreme Appellate Court, Sindh, Karachi, where the case against the accused wits registered under sections 307. 353. 147, 148 and 149, P.P.C. In pursuance of a similar order under section 5 of the Special Courts for Speedy Trials Ordinance, 1991 (XXV of 1991), the Federal Government ordered that the said case shall be tried by the Special Court of Mr, Justice Allahdino Memon. This order also did not contain declaration '`of the opinion required under clause (e) of section 2 of the Special Courts for Speedy Trials Ordinance, 1991 (XXV of 1991) in express terms. The Special Court tried the accused and convicted them under sections 307 and 353, P.P.C. They challenged the order through an appeal under section 13 of the Ordinance before the Supreme Appellate Court which set aside the conviction and sentence so awarded and remitted the case to the Special Court for determining whether the transfer to it was in accordance with law or not and satisfied the requirements of section 5 read with section 2(c) of the Ordinance XXV of 1991. It will be useful to reproduce the following extract from the judgment of the Supreme Appellate Court: ‑‑
25. "9. It is also of importance that the effect and validity of the transfer order passed under section 5 has not been examined. Where the offence which is not a scheduled offence line section 353, a declaration in terms required by subsection (c) of section 2 of the Ordinance is necessary or not must be examined. The transfer order that we have received in support of the jurisdiction of the Special Court reads as hereunder:‑‑
26. `Whereas the Federal Government is of opinion that the cases specified in column (1) of the table below relating to offences specified therein should be tried and decided speedily;
27. Now, therefore, in exercise of the powers conferred by section 5 of the Special Courts for Speedy Trials Ordinance, 1991 (XXV of 1991), the Federal Government is pleased to order that the said cases shall be tried and decided by the Special Court specified in column (2) there of.
TABLE
28. Particulars of cases Special Court
29. 1 Special Court (consisting of Mr
30. Justice Allahdino h1emon). Stilckur.
31. 2, ‑do
32. F.1.R. No.116/91 Police =do.
33. Station `A' Section,
34. Khairpur, under section
35. 307/353/1.17/148/149,
36. P.P.C.
10. There is no such declaration in respect of the offence. under scclion 353, P.P.C. It is for the trial Court at the initial stage to examine this question pertaining to its jurisdiction."
7. I am, therefore, of the clear view that the order passed by the Federal Government directing the trial of the case by this Court did not contain a declaration as required by clause (c) of section 2 of the Special Courts for Speedy Trials Ordinance, 1991 (XXV of 1991), although the offences under section 14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and sections 380, 457 and 411, P.P.C. do not find place in the Schedule and, therefore, the declaration of an opinion in terms thereof was necessary. Since there is no such declaration in respect of the offences mentioned above, the order transferring the case to this Court and depriving ordinary Courts of law of the jurisdiction is not legal.
8. I am, therefore, satisfied that the transfer of the case to this Court being illegal, this Court cannot take its cognizance. Hence I direct that the case I be returned to District and Sessions Judge, Karachi (Central) so that he may make over the same to the Court having jurisdiction.
37. N.H.Q./S‑817/K Case returned.