Face book account--Photograph--Edited--Detestable act--Religious feelings were outraged--Over riding effect of ATA Act--Technical Jurisdiction of special Court--

 PLJ 2018 Lahore 122 (DB)

Pakistan Penal Code, 1860 (XLV of 1860)--

----S. 295-A--Anti-Terrorism Act, 1997, Ss. 9, 19(2B) & 32--Criminal Procedure Code, (V of 1898), S. 265-K--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Face book account--Photograph--Edited--Detestable act--Religious feelings were outraged--Over riding effect of ATA Act--Technical Jurisdiction of special Court--Application for acquittal--Dismissed--Challenge to--Case was registered under Anti-Terrorism Act, 1997--Where no such provision under Section 196, Cr.P.C. was applicable--Anti-Terrorism Act, 1997 is a special law and have overriding effect on all other laws as envisaged under Section 32 of Anti-Terrorism Act, 1997--Provision of Code of Criminal procedure, 1898 are inapplicable to proceedings arising out of Special Law by virtue of sub-section (a) of Section 1 of the Criminal Procedure Code, 1898 and Section 32 of Act ibid having overriding effect--Petition was dismissed.  [Pp. 124 & 125] A & B

Syed Jafar Tayyar Bukhari, Advocate for Petitioner.

Date of hearing: 27.2.2017.

 PLJ 2018 Lahore 122 (DB)
[Multan Bench Multan]
Present: Muhammad Qasim Khan and Asjad Javaid Ghural, JJ.
GHULAM QADIR--Petitioner
versus
STATE and 2 others--Respondents
W.P. No. 3871-ATA of 2017, decided on 27.2.2017.

Order

Through this Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 Ghulam Qadir, the petitioner has challenged the vires of order dated 01.03.2017 passed by learned Judge Anti-Terrorism Court, Sahiwal in case FIR No. 713, dated 24.12.2015 in respect of offences under Section 295-A, PPC alongwith Section 9 of the Anti-Terrorism Act, 1997 registered at Police Station Yousaf-Wala, District Sahiwal.

2.  Briefly, the allegation against the petitioner was that on 22.12.2015, the petitioner edited a photograph from his Facebook account wherein a green turban was placed on the heads of the dogs and by this detestable act of the petitioner religious feelings of Hanfi-Brelvi Sect were outraged. Allegedly the petitioner to provoke the abhorrence further shared this photograph which was seen by Muhammad Asif, Sajjad Bashir, Sajid Mukhtar, Qari Muhammad Akmal, Safdar Ali Shad and Javed Mukhtar etc. and spread the anarchy in the society. After trial the petitioner has moved an application seeking his acquittal under Section 265-k, Cr.P.C., which was dismissed vide impugned order dated 01.03.2017. Hence. Hence, this petition.

3.  Learned counsel for the petitioner submits that primarily the registration of case was illegal as sanction for prosecution had not been obtained which amounts to clear violation of Section 196, Cr.P.C. where a complaint could be made by an order of the Central Government or the Provincial Government concerned, or some officer empowered in this behalf, but in the instant case no such sanction was procured to proceed further with the alleged offence; that the petitioner is liable to be acquitted as subsequent proceedings after registration of the case are without any foundation and ultimately there is no probability of his conviction at all.

4.  Heard. Record perused.

5.  Admittedly, no sanction for prosecuting the petitioner is available with the file, but it is important to mention here that the case was registered under Anti-Terrorism Act, 1997 where no such provision under Section 196, Cr.P.C. was applicable. The Anti-Terrorism Act, 1997 is a special law and have overriding effect on all the other laws as envisaged under Section 32 of the Anti-Terrorism Act, 1997, the same is reproduced here:--

“32. Overriding effect of Act.--(1). The provisions of this Act shall have effect notwithstanding anything contained in the Code or any other law but, save as expressly provided in this Act, the provisions of the Code shall, insofar as they are not inconsistent with the provisions of this Act, apply to the proceedings before (An Anti-Terrorism Court), and for the purpose of the said provisions of the Code, (Anti-Terrorism Court) shall be deemed to be a Court of Session.

(2)  In particular and without prejudice to the generality of the Provisions contained in sub-section (1), the provisions of Section 350 of the Code shall, as far as may be, apply to the proceedings before (Anti-Terrorism Court), and for this purpose any reference in those provisions to a Magistrate shall be construed as a reference to (Anti-Terrorism Court):”

6.  According to Section 19(2-b) of the Act ibid, in Anti-Terrorism Act, amendment has been made with regard to sanction for prosecution and Section 19(2-b) has been insulted. That if sanction for prosecution is not received within thirty days, the same shall be deemed to have been given the same is reproduced here:

“(8-b)--Notwithstanding anything contained in Section 7 of the Explosive Substances Act, 1908 (VI of 1908), or any other law for the time being in force, if the consent or sanction of the appropriate authority, where required, is not received within thirty days of the submission of challan in the Court, the same shall be deemed to have been given or accorded and the Court shall proceed with the trial of the case.”

Bare reading of aforesaid section shows that the sanction for prosecution in cases relating to Anti-Terrorism Act is not to be required and it shall be deemed to have been granted after expiry of thirty days of the submission of challan. Learned counsel for the petitioner submits that the proceedings are illegal and for the said reason the petitioner deserves acquittal. The petitioner was alleged to have committed a scheduled offence under the provision of Section 12 of the Act ibid which shall be triable only by the Special Court exercising territorial jurisdiction in relation to such area. In cases

where Special Law attracts the provision of Code of Criminal procedure, 1898 are inapplicable to the proceedings arising out of the Special Law by virtue of sub-section (a) of Section 1 of the Code of Criminal Procedure, 1898 and Section 32 of the Act ibid having overriding effect. In this regard, we seek guidance from the case reported as “Mian Nawaz Sharif and others vs. The State” (2000 MLD 946).

7.  In view of above, without going into the merits of the case, the submissions made by learned counsel for the petitioner as he has confined himself to the extent that there was no sanction for prosecution to proceed with the matter is without any substance, hence, the same stands dismissed in limini.

(Y.A.)  Petition dismissed