MUHAMMAD SHARIF Versus THE STATE

MUNIR A. SHEIKH, J.‑‑‑ This judgment will also dispose of Criminal Appeal No.27 of 1991 and Criminal Miscellaneous No.38/Q of 1991 as common questions of law and facts are involved in all of them.

2. These are two appeals from the judgment of the learned Judge, Punjab Special Court NO.VII (Suppression of Terrorist Activities) Act, 1975, Multan, dated 24‑1‑1991 convicting the appellant Muhammad Sharif and Muhammad Salim under section 411, P.P.C. and sentencing them to three years' R.I. each and to pay a fine of Rs.2,00,000 each or in default to further undergo two years' R.I. each. Half of the fine if recovered was ordered to be paid to the National Bank of Pakistan as compensation. In Criminal Miscellaneous No.38/Q of 1991 filed by Mst. Sajida Rashid, she has prayed for the quashment of the said judgment in so far as it directed the sale of Bungalow No.117/C, Shah Rukan‑e‑Alam Colony, Multan.

3. Muhammad Sharif and Muhammad Salim two appellants alongwith one Mushtaq Mustafa were tried for committing offence under section 395/394/397/ 307/149, P.P.C. by the learned Punjab Special Court No.VII under Suppression of Terrorist Activities Act, 1975, Multan. The learned trial Judge convicted only Mushtaq Mustafa accused under section 392/397, P.P.C. who was sentence to 10 years' R.I. and fined Rs.10,00,000 and in default to undergo five years' R.1. Muhammad Sharif and Muhammad Salim appellants have been convicted under section 411, P.P.C. and sentenced as aforementioned. Bungalow No.1.17/C, situated in Shah Rukan‑e‑Alam Colony, Multan, having been found to have been purchased with the stolen money which stands in the name of Mst. Sajida Rashid was also ordered to be sold and sale proceeds paid to the National Bank of Pakistan as compensation.

4. Learned counsel for the appellants and Mst. Sajida Rashid raised an argument based on section 4 of Act XV of 1975 Suppression of the Terrorirst Activities (Special Courts) Act, 1975 that the offence under section 411, P.P.C. being not a scheduled offence, as such, the trial Court under said Act was not vested with jurisdiction to try the said offence and convict the appellants and as a consequence thereof no property allegedly purchased with the stolen money could also be ordered to be sold. Since the decision of this question of law revolved around the interpretation of the relevant provisions of Act XV of 1975 without going into the evidence led by the parties on the merits of the case, therefore, we heard learned counsel for the appellants and Mst. Sajida Rashid and the learned Additional Advocate‑General on this point. Section 4 of Act XV of 1975 reads as under:‑‑‑

"4. Jurisdiction of Special Court. ‑‑ Notwithstanding anything contained in the Code, the scheduled offences shall be triable exclusively by a Special Court:

Provided that this section shall not be construed to require the transfer to a Special Court of any case which may be pending in any Court immediately before the constitution of the Court.

(2) If, in the course of a trial before the Special Court, the Court is o1 opinion that any of the offences which the accused is alleged to have committed is not a scheduled offence, the Court shall record such opinion and try the accused only for such offence, if any, as is a schedule offence."

5. It is distinctly clear from the provision of this section jurisdiction of the Special Court constituted under the Act extended only to the trial of offences enumerated in the schedule attached with this Act. Learned Additional Advocate‑Genera: frankly conceded that offence under section 411, P.P.C. does not find mention in the schedule. When questioned that in such a situation as to how he could defend the judgment convicting the appellant under section 411, P.P.C. he raised the following contentions:‑‑

(a) By virtue of subsection (2) of section 5 of the Cr.P.C. all offences under any other law are to be tried according to the provisions of the Cr.P.C.

(b) That being so, it was legally permissible under section 235 of the Cr.P.C. to charge and try an accused in one trial for more than one offences if it is found that in one series of acts so connected together as to form the same transaction he had committed more than one offence.

6. The argument appeared to be ingenious but not tenable on close scrutiny. Learned Additional Advocate‑General overlooked the provisions of section 1(2) of the Cr.P.C. the reproduction of which in extenso will be useful which is as follows:‑‑

"It extends to (the whole of Pakistan); but in the absence of any specific provision to the contrary, nothing herein contained shall affect any special or local law now in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other la‑w for the time being in force."

The application of any provision of the Code is excluded where a provission of any special or local law or any special jurisdiction or power conferred or any special form of procedure prescribed thereunder provides otherwise. Suppression of Terrorist Activities (Special Courts) Act (XV of 1975) is a special law conferring exclusive jurisdiction on the Special Courts constituted under the said Act to try only the offences enumerated in the schedule attached therewith in which admittedly offence under section 411, P.P.C. has not been included. Subsection (1) of section 4 of this Act overrides the provisions of the Code of Criminal Procedure. It is implicit in subsection (2) of section 4 that if in the course of trial before the Special Court the Court is of the opinion that any of the offences which the accused is alleged to have committed is not a scheduled offence the Court shall record such opinion and the accused shall be tried for such offence only, if any, as is a scheduled offence. The jurisdiction of the Special Court has been expressly ousted to try an offence which is not a scheduled offence. It is also manifest from this provision of law that the legislature was conscious of a situation where an accused who was being tried by the Special Court might be found to have committed offences not falling in the schedule in addition to scheduled offence but instead of making a provision permitting trial of the accused for all such offences by the Special Court on the anology of principles enacted in section 235 of the Cr.P.C. a provision to the contrary has been enacted prohibiting the trial of the accused of such offence ‑which did not fall within the ambit of the schedule. This being so, by virtue of section 1(2) of the Cr.P.C. the provisions as enacted in section 235, Cr.P.C. cannot be pressed into service as argued by the learned Additional Advocate?-General. The argument of the learned Additional Advocate‑General cannot be accepted, without doing violence to this express provisions of section 4 of (Suppression of Terrorist Activities) Act, 1975 as the acceptance of the same shall have the legal effect of conferring the jurisdiction on the Special Court to try non‑scheduled offence which is, as discussed above, expressly prohibited by the law itself under which the Court is constituted and derives its jurisdiction.

7. Apart from what has been discussed above section 235 as per its terms will not be applicable to the facts of the present case as it is applicable where the same accused person or persons are found to have committed more than one offences on account of one series of acts so connected together as to form the same transaction whereas in the present case only Mushtaq Mustafa was convicted under section 392/397, P.P.C. which is a scheduled offence and the two appellants Muhammad Sharif and Muhammad Salim have been found guilty under section 411, P.P.C. therefore, it is not a case of the same person having found to have committed more than one offences as provided in section 235.

8. For the foregoing reasons the conviction and sentence of both the appellants under section 411, P.P.C. is without jurisdiction and the consequential direction for the sale of Bungalow No.117‑C, Shah Rukan‑e?Alam Colony, Multan standing in the name of Mst. Sajida Rashid on the ground that it was purchased with the stolen money can also not stand. Both the appeals and Criminal Miscellaneous No.38/Q of 1991 are accepted. The conviction and sentence of both the appellants under section 411, P.P.C. and direction for sale of Bugalow No.117-C are set aside. The case against both the appellants under section 411, P.P.C. shall be tried under the ordinary law.

N.H.Q./M‑80/L ?????????????????????????????????????????????????????????????????????????????????? Appeals accepted