P L D 2022 Lahore 700
Penal Code (XLV of 1860)---
----Ss. 302, 324, 353 & 186---Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public functions, possession of narcotic substance---Prosecution case was that accused was apprehended from the house by the officials of ANF and one of the accused was given a chase by the personnel of ANF but he responded with a straight fire hitting one of the officials; accused made a successful escape and from the blue sack thrown by him 15-packets of charas, weighing 16.875 kilograms were recovered---Case was thoroughly investigated by ANF and on the conclusion of the investigation, report under S.173, Cr.P.C. only to the extent of Ss.9(c), 15 & 17 of Control of Narcotic Substances Act, 1997 was submitted in the court of CNS---To the extent of offences under P.P.C. and Anti-Terrorism Act, 1997 a separate report under S.173, Cr.P.C. was proposed to be submitted in the Anti-Terrorism Court---Special Judge (CNS) Court, held that he lacked jurisdiction and both the reports under S.173, Cr.P.C., were to be submitted before the Court constituted under ATA, 1997---Validity---Record showed that the raid though led to the recovery of a consignment comprising upon 16.875 Kilograms of charas but also culminated into the death of one ANF personnel, who statedly was gunned down by one of the accused while decamping from the spot so as to avoid his arrest---Language of S.235, Cr.P.C. is explicit in sense and enables a Court to charge an accused in one trial for multiple offences comprising upon different acts but committed during same transaction---Term "same transaction" used in S.235, Cr.P.C., was of dominant importance and called for indulgence---Offences, though, committed not at same place and time but if were stemming from common motivation, intent, design or in continuity with each other, still could be described as forming same transaction---For the determination of question about the offences having been committed during same transaction, the root cause of the crime or the motive was to be considered along with proximity of time and distance between the different events---If the different events forming basis of a crime could not be bisected in reference to the motive, design, concert and reasons rather were strongly interwoven with each other by common thread of background, it could inexorably be held that offences were committed during same transaction within the meaning of S. 235, Cr.P.C.---In the present case, all the accused named in the crime report prima facie, were found concerned in drugs trafficking and one out of them committed the murder of a person hailing from raiding party to make an escape and to avoid arrest---All the offences were committed in one transaction, thus were to be tried through a common charge under S. 239(d), Cr.P.C. by the same Court in a single trial---According to the Preamble, CNS Act, 1997, was enacted to consolidate and amend the laws relating to narcotic drugs, psychotropic substances and to control the production, processing and trafficking of drugs and substances---Chapter II deals with certain prohibitions and provide punishments for their violations---Inexorably, all the penal provisions contained in Chapter II of CNS Act, 1997, deal with offences relating to narcotic drugs, psychotropic and controlled substances---For trial of cases arising out of CNS Act, 1997, Special Courts were notified and established under S.45, which also specified the sphere of their jurisdiction---Section 45 of CNS Act, 1997, signified that the jurisdiction of Special Court was restricted only to the extent of offences mentioned in CNS Act, 1997, and did not go beyond---Tenor of S. 45 CNS Act, 1997, made it unambiguously clear that jurisdiction of Court established under CNS Act, 1997 though was exclusive but limited in nature---Alluded from the Preamble that ATA, 1997, was enacted to cater the need of countering the menace of terrorism, sectarian violence and heinous offences---Preamble extended the scope of ATA, 1997 even to the offences which were connected with terrorism etc. or were incidental thereto---Word "incidental" used in the Preamble of ATA, 1997, is of higher import and stand for acts and results attached with the main transaction---Use of word "incidental" that matters ancillary or connected with the principal misdeed of terrorism and heinous offences come within the scope of ATA, 1997---Anti-Terrorism Court besides taking cognizance of terrorism, sectarianism and heinous offences could also extend jurisdiction to offences which were their fall out or by-products---Under S. 12(1) of Anti-Terrorism Act, 1997, Special Court were constituted with exclusive domain to take cognizance of scheduled offences as was evident from its S.12(1) Anti-Terrorism Act, 1997---After dilating in-depth upon the Preamble, Ss.12(1), 17 & 21-M of ATA, 1997, it was concluded that all those provisions were required to be read in conjunction with each other for determining the jurisdiction of Special Court constituted under ATA, 1997---Non-obstante clause of S. 12(1) when read continently with other provisions of ATA, 1997, it becomes abundantly clear that the jurisdiction of Special Court is extended to other offences as well if committed along with scheduled offences during same transaction as continuity of actions---Canvassed allegations give rise to different offences committed by same set of accused and in the manner that they could not be bisected---Similarly, the same set of persons were proposed to stand as witnesses along with common documents like FIR, inspection notes, recovery memos etc. to prove the charge of possession of narcotics and committing the murder of deceased---If the allegations were placed before two different courts through separate 173, Cr.P.C reports, there would be a possibility of conflicting decisions and above all it would put in peril both the sides for undergoing the ordeal of separate trials regarding the same transaction---Appeal was dismissed accordingly.
JUDGMENT
CH. ABDUL AZIZ, J.---Through this appeal in terms of section 48 of the Control of Narcotic Substances Act, 1997 (hereinafter referred to as "CNS Act, 1997") read with Section 561-A of the Code of Criminal Procedure, 1898 (Cr.P.C.), the Anti-Narcotics Force (ANF) through its Regional Directorate, North Islamabad (appellant) assailed the vires of order dated 25.01.2021 passed by learned Judge Special Court (CNS), Rawalpindi whereby the file of case FIR No.24/2020 dated 07.08.2020 registered under sections 302, 324, 353 and 186 of Pakistan Penal Code, 1860 (P.P.C.) read with sections 9(c), 15 and 17 of CNS Act, 1997 at Police Station ANF, Islamabad, was ordered to be remitted to learned Judge Anti-Terrorism Court, Rawalpindi for a joint trial.
2. Succinctly stated the facts of the prosecution case as it gleans from the afore-said FIR are to the effect that on 07.08.2020 Allah Bakhsh Inspector (complainant) received a telephonic spy information that Muhammad Faizan etc. were scheduled to shift sizeable quantity of narcotics from their house; that upon receipt of such information a raiding party comprising upon ANF officials was constituted, who after boarding two vehicles reached the vicinity wherein Muhammad Faizan etc. were residing; that ANF personnel entered in the house at about 5:15 a.m. and noticed that one of the inmates was having a blue sack in his hand; that after noticing the presence of ANF officials, the accused who was identified as Faizan threw the blue sack and decamped from the house by scaling over the wall; that one male and one female occupants were apprehended from the house by the officials of ANF; that Faizan (accused) was given a chase by the personnel of ANF but he responded with a straight fire hitting Akbar Ali; that Faizan made a successful escape and from the blue sack thrown by him 15-packets of Charas, weighing 16.875 kilograms were recovered.
3. The case was thoroughly investigated by ANF and on the conclusion of the investigation, report under section 173, Cr.P.C. only to the extent of sections 9(c), 15 and 17 of CNS Act, 1997 was submitted in the Court of Special Judge CNS, Rawalpindi. To the extent of offences under P.P.C. and Anti-Terrorism Act, 1997 (hereinafter referred to as "ATA, 1997") a separate report under section 173, Cr.P.C. was proposed to be submitted in the Anti-Terrorism Court, Rawalpindi. The learned Judge Special Court (CNS), Rawalpindi vide order dated 25.01.2021 held that he lacks jurisdiction and both the reports under section 173, Cr.P.C. are to be submitted before the Court constituted under ATA, 1997, hence the instant appeal.
4. It is contended by the learned law officer appearing on behalf of ANF that the impugned order passed by the learned Judge CNS Court is an outcome of misinterpretation of law; that in accordance with the peculiar facts of the case, joint trial is not permissible; that the offences under section 9(c) of CNS Act, 1997 and section 7 of ATA, 1997 read with section 302, P.P.C. are distinct in nature, thus cannot be clubbed together; that CNS Act, 1997 and ATA, 1997 are special enactments and their provisions are not overlapping in nature and that since the impugned order is contrary to the law on the subject and facts of the case, hence is liable to be set-aside.
5. On the other hand, learned counsel appearing on behalf of respondents Nos.2 and 3 came forward with the submissions that the provisions of ATA, 1997 have overriding effects in respect of all other enactments by necessary implication of section 32; that the offences since are committed during same transaction, thus it would be in the interest of justice to try them through a single charge by one Court; that separate trials are likely to give rise to contradictory decisions which will damage the cause of justice. With these submissions, learned counsel urged that the impugned decision since is in consonance with the spirit of law, thus calls for no interference from this Court.
6. Arguments heard. Record perused.
7. A wade through the record reveals that in the earlier hours of 07.08.2020 ANF contingent after receipt of a lead given by stool pigeon about presence of a sizeable cache of narcotics raided a house wherein Faizan, Sehrish and Rashid (respondents) were having abode. The raid though led to the recovery of a consignment comprising upon 16.875 Kilograms of Charas but also culminated into the death of one ANF personnel Akbar Ali, who statedly was gunned down by one of the accused Faizan (respondent No.1) while decamping from the spot so as to avoid his arrest. The crime, which from plain review was having simple details, later gave rise to intricate question of jurisdiction, upon which we have to dilate and to decide that whether trial is to be conducted by the Special Court constituted under CNS Act, 1997 or the Court created by necessary implications of ATA, 1997.
8. In order to decide beyond ambiguity, the jurisdictional controversy in question, we feel a compelling need to set out the actual genesis of the crime which can be summed up in the following manner:-
(i) Receipt of information by ANF officials on 07.08.2020 at about 2:00 a.m. about the presence of narcotics hoarded in the house of Muhammad Faizan, a notorious drug dealer.
(ii) Conducting of raid by ANF contingent at about 5:15 a.m. upon a house wherein the three accused were having abode.
(iii) One of the culprits Muhammad Faizan after noticing the presence of ANF personnel threw a plastic bag and beat a hasty retreat by scaling over the wall and in the process gunned down a member of the raiding party namely Naik Akbar Ali.
(iv) Though Muhammad Faizan made successful escape but two others, namely, Rashid and Sehrish were nabbed red handed along with narcotics.
The eloquent scanning of accusations unfolds that the crime is comprising upon set of wrongs, punishable under different legal provisions arising from various enactments. The recovery of narcotics attracts the mischief of 9(c) of CNS Act, 1997, whereas the killing of Akbar Ali gives rise to an offence under section 302, P.P.C. and the peculiar background in which he was gunned down also warrants applicability of section 7 of ATA, 1997.
9. Cognizant of the fact that the fate of instant case is hanging in balance and its trial has yet not commenced due to jurisdictional controversy between the courts constituted under ATA, 1997 and CNS Act, 1997, thus we intend to restrict ourselves to the extent of forum of trial and feel no need to dilate upon the merits of accusations. In the given circumstances, primarily, we are confronted with the proposition that the fate of accusations is to be decided by one common forum or to be tried separately by the Courts constituted under ATA, 1997 and CNS Act, 1997. The trial commences from the taking of cognizance which is generally described as the stage when the court applies its mind by framing a charge against accused. As a general rule laid down in section 233, Cr.P.C, for every distinct offence an accused is to be indicted separately and for advantage sake the foregoing provision is being reproduced hereunder:-
"Separate charges for distinct offences. For every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately, except in the cases mentioned in sections 234,235,236 and 239."
(emphasis provided)
The expression "distinct offence" used in section 233, Cr.P.C. is to be construed in consonance with the statutory illustration annexed therewith and its perusal unambiguously demonstrates that it stands for offences having no nexus with each other. Indeed, the term "distinct offence" denotes transactions having occurred at different places and times without community of motivation and background. The rule of a separate charge for every distinct offence laid down in section 233, Cr.P.C qualifies for acceptance but subject to the exceptions laid down in sections 234, 235, 236 and 239, Cr.P.C. Inexorably, the provision of section 233, Cr.P.C is not to be read in isolation from the remaining provisions of Chapter XIX rather are to be considered in conjunction with them. Section 235, Cr.P.C is an exception to what is contemplated in Section 233 Cr.P.C and on account of its relevancy with the proposition under consideration is being referred hereunder:-
"235.Trial more than one offence. (1) If, in one series
of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence.
(2). Offence falling within two definitions. If the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the person accused of them may be charged with, and tried at one trial for each of such offences.
(3) Acts constituting one offence, but constituting when combined a different offence. If several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence, the person accused of them may be charged with, and tried at one trial for, the offence constituted by such acts when combined, and for any offence constituted by any one, or more, of such acts.
(4) Nothing contained in this section shall affect the Pakistan Penal Code, section 71."
The language of section 235, Cr.P.C is explicit in sense and enables a Court to charge an accused in one trial for multiple offences comprising upon different acts but committed during same transaction. The term "same transaction" used in section 235, Cr.P.C is of dominant importance and calls for our indulgence. In our view the offences, though committed not at same place and time but if are stemming from common motivation, intent, design or in continuity with each other, still can be described as forming same transaction. For the determination of question about the offences having been committed during same transaction, the root cause of the crime or the motive is to be considered along with the proximity of time and distance between the different events. To be precise, if the different events forming basis of a crime cannot be bisected in reference to the motive, design, concert and reasons rather are strongly interwoven with each other by common thread of background, it can inexorably be held that offences are committed during same transaction within the meaning of section 235, Cr.P.C. The foregoing provision, from simple recital, is found to be person specific as it deals with multiple offences committed by a single accused in a series of acts tied with common knot so as to form same transaction. In the instant case, three persons are clubbed together with the allegation of having committed different offences, during same transaction. Section 239, Cr.P.C caters the proposition of joint trial in cases wherein two or more accused are burdened with the allegation of having committed different offences during same transaction. In order to better comprehend the proposition under consideration, section 239, Cr.P.C is being mentioned hereunder:-
"239. What persons may be charged jointly. The following persons may be charged and tried together, namely:
(a) persons accused of the same offence committed in the courses of the same transaction;
(b) persons accused of an offence and persons accused of abetment, or of an attempt to commit such offence.
(c) persons accused of more than one offence of the same kind, within the meaning of section 234 committed by them jointly within the period of twelve months;
(d) persons accused of different offences committed in the course of the same transaction;
(e) persons accused of an offence which includes theft, extortion or criminal misappropriation, and persons accused of receiving or retaining, or assisting in the disposal or concealment of property possession of which is alleged to have been transferred by any such offence committed by the first named persons, or of abetment of or attempting to commit any such last named offence;
(f) persons accused of offences under sections 411 and 414 of the Pakistan Penal Code or either of those sections in respect of stolen property the possession of which has been transferred by one offence; and
(g) persons accused of any offence under Chapter XII of Pakistan Penal Code relating to counterfeit coin, and persons accused of any other offence under the said Chapter relating to the same coin, or of abetment of or attempting to commit any such offence;
and the provisions contained in the former part of this Chapter shall, so far as may be, apply to all such charges."
(emphasis provided)
The clause (d) of Section 239 (ibid) deals with joint trial of multiple accused who are saddled with the allegation of having committed multiple offences but in the course of same transaction. We have already pondered upon the expression "same transaction" in the preceding para, thus feel no necessity to re-dilate upon it as the same will be an exercise in futility. Apparently, the solitary difference between sections 235 and 239, Cr.P.C pertains to the number of persons involved in the crime as the former deals with single accused having committed more offences than one during same transaction and the latter operates when more than one person are found to have committed multiple offences during same transaction. However, a close look of the two provisions makes it abundantly clear that the scope and applicability of section 239, Cr.P.C is wider in sense. In this regard, it is noticed from the phraseology of section 235, Cr.P.C that joint trial is made contingent to the fact that the offences must be committed in series of acts so connected with each other so as to form same transaction. So far as section 239 and more importantly its clause (d), is concerned there is only one legislative restriction that the offences be committed during same transaction and by more than one person. We also intend to lay emphasis that the words "offences" and "transaction" are two distinct terms. The word "offences" stands for different wrongs made punishable under criminal law, whereas the word "transaction" signifies the number of acts or omissions whether occurring as one event or number of events at the same or different locations but part of a common scheme, strategy, plan or in continuity with each other. A peep through the judicial
archives unfolds that interpretation of the expression "same transaction" always remained beyond precision and different meanings are extended in this regard. Despite various meanings given to the expression "same transaction", there is unanimity of interpretation that it attracts in cases where different acts are committed in continuity with each other. The expression "same transaction" in reference to section 239, Cr.P.C came under discussion of Hon'ble Supreme Court of Pakistan in case of MD. Mosaddar Hoque and another v. The State (PLD 1958 Supreme Court 131) and was expounded upon in the following manner:-
"In dealing with the question as to what constitutes "the same transaction", Courts, while indicating that the tests to be implied are proximity of time and place, community of purpose or design and continuity of actions, have also pointed out that the two latter are the essential elements which are necessary in order to link together different acts into the same transaction. Proximity of time and place by themselves are insufficient. This view is in accordance with the principle of section 233, stated above; but the Special Judge in dealing with the objection raised to the joint trial of the appellants seems to have proceeded on the basis that proximity of time and place are sufficient to form the same transaction. He lost sight of the fact that community of purpose or design and continuity of action were sine qua non if separate acts were to be linked together, so as to constitute one transaction."
In a case from Indian jurisdiction reported as Dinkarray Raghnath v. The State (AIR 1963 Gujarat 15) the term "same transaction" was defined as under:-
"The expression "same transaction" used in section 235 of the Code is difficult if not incapable of exact definition. The question whether the acts are so connected together as to form one transaction or not would depend on facts and circumstances of a particular case. It is not possible to lay down any comprehensive formula of universal application. The real and substantial test for determination of the question is the continuity of action and purpose."
In another case reported as Madan Gopal Dey and another v. State and another (AIR 1968 Calcutta 79), the term "same transaction" came under discussion and met with the following observation:-
"The term 'same transaction' has nowhere been defined. The term suggests a continuity of actions and purpose and it has been held that the real and substantive test for determining whether several offences are so connected together as to form one transaction depends upon whether they are related together in point of purpose or as cause and effect or as principle and subsidiary acts so as to constitute one continuous action. If a continuous thread runs through the acts complained of, charges arising out of those acts would be liable to be joined together under this section. Continuity of actions therefore seems to be very important test in the matter."
(emphasis provided)
10. Apparently, the wisdom behind concept of joinder of charges arising from the provision of Chapter XIX of Cr.P.C is firstly to avoid conflicting decisions and secondly to save the witnesses from the ordeal of appearing in the dock repeatedly for deposing about offences committed in same transaction and thirdly to save the time of Courts by clubbing different connected offences in a single trial. The facts of the instant case, when tested on the touchstone of above discussion, lead us to an irresistible conclusion that different offences were committed in the community of object, purpose and in continuity of actions. All the accused named in the crime report prima facie were found concerned in drugs trafficking and one out of them committed the murder of a person hailing from raiding party to make an escape and to avoid arrest. Beyond scintilla of any ambiguity, all the offences are committed in one transaction, thus are to be tried through a common charge under section 239(d), Cr.P.C by the same Court in a single trial.
11. After drawing conclusion that all the accused arrayed in the case along with offences committed by them are to be charged jointly, we are confronted with the pivotal question that the needful of conducting the trial is to be done by the Court constituted under CNS Act, 1997 or by the Special Court created under ATA, 1997. The query so raised by us essentially pertains to the jurisdiction of two Special Courts established under various enactments. The term "jurisdiction" stands for the legal authority vested in a Court to decide the controversy by taking its cognizance. Needless to mention here, such authority is to be derived from some express legal provision of the statute through which the Court is established. The concept of jurisdiction was best defined by Kekewich J. in re Montagu (1897) LR 1 CD 1897 at page 693 in following words:-
"It is part of my duty to expound the jurisdiction of the court. It is no part of my duty to expand it."
The jurisdiction of a Court established under Special Law is always exclusive to the extent of specified offences. From the concept of exclusive jurisdiction, it follows that regarding the specified offences, no Court other than the Special Court is empowered to take cognizance. Such exclusive jurisdiction of a Special Court on occasions is limited and often extended or coordinated. The notion of limited jurisdiction denotes that the Special Court cannot try an offence other than those mentioned in the enactment through which it is created. The term "limited jurisdiction" is defined in the book titled as "P RAMANATHA AIYAR'S ADVANCED LAW LEXICON" 4TH EDITION VOLUME-3" in the following manner:-
"Limited Jurisdiction, as applied to Courts, has been often used instead of the term "Special" to distinguish such Courts from Courts which have general jurisdiction. A count of limited or special jurisdiction is one which has jurisdiction only for a particular purpose, or is clothed with special powers for the performance of specific duties beyond which they have no manner of authority."
The concept of exclusive limited jurisdiction can further be comprehended by epitomizing Section 4 of Suppression of Terrorist Activities (Special Courts) Act, 1975 (since repealed), which though blessed exclusive jurisdiction to the extent of scheduled offences but striped the special court from the authority to try other offences. For reference sake, Section 4 is being referred hereunder:-
"Jurisdiction of Special Court: (1) Notwithstanding anything contained in the Code, the scheduled offences shall be triable exclusively by a Special Court.
……………………………………………………………………………………………………………………………………………………………..
(2) If in the course of a trial the Special Court, the Court is of 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 offences, if any, as is a scheduled offence."
(emphasis provided)
If some other example is needed that can also be made to section 4(6) of the Offences in Respect of Banks (Special Courts) Ordinance, 1984 which again for the clarity of proposition is reproduced below:-
"Scheduled offence to be tried by Special Court. (1) Notwith-standing anything contained in the Court, scheduled offences shall be triable exclusively by a Special Court.
……………………………………………………………………………………………………………………………………………………………..
(6) If, in the course of a trial before a Special Court, the Court is of 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 scheduled offence."
(emphasis provided)
According to the concept of concurrent, coordinated or extended exclusive jurisdiction a Court constituted through a special enactment besides exercising exclusive jurisdiction regarding the scheduled offences, can also try other connected offences. It implies from this concept that certain class of offences though not amenable to the jurisdiction of the Special Court but still can be tried as such if committed along with scheduled offences. This concept is found embedded in section 5(7) of Pakistan Criminal Law (Amendment) Act, 1958 and is being quoted below for elucidating the proposition:-
"Offences to be tried by Special Judges. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898, or in any other law, the offences specified in the Schedule shall be triable exclusively by a Special Judge.
……………………………………………………………………………………………………………………………………………………………..
(7) When trying an offence under this Act a Special Judge may also charge with and try other offences not so triable with which the accused may, under the provisions of the Code of Criminal Procedure, 1898 relating to the joinder of charge be charged at the same trial."
The concept of exclusive and extended jurisdiction can further be explicated from Section 14 of the Protection of Pakistan Act, 2014 which again for clarity of proposition is reproduced hereunder:-
"14.Joint trial.---(1) While trying any offence under this Act, a Special Court may also try any other offence, which an accused may, under the Code of Criminal Procedure, 1898, be charged, at the same trial if the offence is connected with such other offence.
(2) If, in the course of any trial under this Act of any scheduled offence it is found that the accused person has committed, in addition any other offence connected with scheduled offence, the Special Court may convict an accused for such other offence also and pass any sentence authorized by this Act, or, as the case may be, such other law."
12. In the wake of points mentioned in the preceding para now we intend to scan CNS Act, 1997 and ATA, 1997 so as to examine that whether the Courts established under these enactments are having exclusive jurisdiction and if it is so, then such exclusive jurisdiction is limited or extended. The legislative intent of both the statutes can be gathered from their respective preambles, the bare perusal of which gives an insight about purpose of enactment and the jurisdiction of the courts established thereunder. According to the preamble, CNS Act 1997 is enacted to consolidate and amend the laws relating to narcotic drugs, psychotropic substances and to control the production, processing and trafficking of drugs and substances. Its Chapter II deals with certain prohibitions and provides punishments for their violations. Inexorably, all the penal provisions contained in Chapter II of CNS Act, 1997 deal with offences relating to narcotic drugs, psychotropic and controlled substances. For trial of cases arising out of CNS Act, 1997, Special Courts are notified and established under Section 45 which also specifies the sphere of their jurisdiction. Keeping in view the importance of Section 45, the foregoing provision is reproduced in verbatim hereunder:-
"The Special Court appointed under this Act shall have the exclusive jurisdiction to try an offence cognizable under this Act."
Section 45 signifies that the jurisdiction of Special Court is restricted only to the extent of offences mentioned in CNS Act, 1997 and does not go beyond it. Inexorably, the tenor of section 45 makes it unambiguously clear that jurisdiction of Court established under CNS Act, 1997 though is exclusive but limited in nature. It will not be out of place to mention here that the jurisdiction of a Court stems out of the law through which it is created and is meant to be exercised in accordance with express legal provisions. The assumption of jurisdiction by a Court with the consent of the parties will be an approach, fallacious in nature. The just adjudication of a case is only compatible with the wisdom of a Judge having jurisdiction and any decision beyond it will be nothing but injustice. In the same stretch, it is observed by us that there is no express provision in the CNS Act, 1997 dealing with acts of terrorism or offences arising out of Chapter XVI of P.P.C.
While dilating upon the provisions of ATA, 1997, we firstly consider it appropriate to have a look upon its legislative intent discernable from the preamble, which for convenience sake is referred hereunder:-
"Whereas it is expedient to provide for the prevention of terrorism, sectarian violence and for speedy trial of heinous offences and for matters connected therewith and incidental thereto."
(emphasis provided)
It alludes from the preamble that ATA, 1997 was enacted to cater the need of countering the menace of terrorism, sectarian violence and heinous offences. The preamble extends the scope of ATA, 1997 even to the offences which are connected with terrorism etc or are incidental thereto. The word "incidental" used in the preamble of ATA, 1997 is of higher import and stands for acts and results attached with the main transaction. The word "incidental" is exhaustively defined in RANDOM HOUSE WEBSTER'S unbridged dictionary SECOND EDITION as under:-
"Incidental: 1. Happening or likely to happen in an unplanned or subordinate conjunction with something else."
It implies from the use of word "incidental" that matters ancillary or connected with the principal misdeed of terrorism and heinous offences comes within the scope of ATA, 1997. In other words, Anti-Terrorism Court besides taking cognizance of terrorism, sectarianism and heinous offences can also extend jurisdiction to offences which are their fall out or by products. Section 12 (1) of ATA, 1997, Special Courts are constituted with exclusive domain to take cognizance of scheduled offences as is evident from its section 12(1) which on account of its relevancy is required to be looked into and is reproduced hereunder:-
"Notwithstanding anything contained in the Code or in any other law, a scheduled offence committed in an area in a province [or the Islamabad Capital Territory] shall be triable only by (Anti-Terrorism Court) exercising territorial jurisdiction in relation to such area."
(emphasis provided)
So far as, the term "scheduled offence" used in Section 12 (1) is concerned, it stands defined in Section 2 (t) of ATA, 1997 as an offence set out in the Third Schedule. Section 12 (1) carries a non-obstante clause and excludes the jurisdiction of all other courts regarding offences mentioned in the Third Schedule. Similarly, in line with the preamble it is explicitly made permissible under Section 21-M for Anti-Terrorism Court to try other offences along with scheduled offences if these are connected with each other. For advantage sake, both foregoing provisions are reproduced hereunder:-
"17. Powers of (Anti-Terrorism Court) with respect to other offences.---When trying any scheduled offence, (Anti-Terrorism court) may also try any offence other than the scheduled offence with which the accused may, under the Code, be charged at the same trial."
21-M. Joint Trial.---(1) While trying any offence under this Act, a Court may also try any other offence which an accused may, under the Code of Criminal Procedure, 1898, be charged, at the same trial if the offence is connected with such other offence.
(2) If, in the course of any trial under this Act of any offence it is found that the accused person has committed any other offence under this Act or any other law for the time being in force, the Court may convict an accused for such other offence and pass any sentence authorized by this Act or, as the case may be, such other law, for the punishment thereof."
After dilating in-depth upon the preamble, sections 12 (1), 17 and 21-M of ATA, 1997 we have formed inescapable conclusion that all these provisions are required to be read in conjunction with each other for determining the jurisdiction of Special Court constituted under ATA, 1997. The non-obstante clause of section 12(1) when read conjointly with other provisions of ATA, 1997 it becomes abundantly clear that the jurisdiction of Special Court is extended to other offences as well if committed along with scheduled offences during same transaction as continuity of actions.
13. We have already mentioned above that the canvassed allegations give rise to different offences committed by same set of accused and in the manner that they cannot be bisected. Similarly, the same set of persons are proposed to stand as witnesses along with common documents like FIR, inspection notes, recovery memos etc. to prove the charge of possessing narcotics and committing the murder of Akbar
Ali (deceased). If the allegations are placed before two different
courts through separate 173, Cr.P.C reports, there will be a possibility of conflicting decisions and above all it will put in peril both the sides for undergoing the ordeal of separate trials regarding the same transaction.
14. In the foregoing circumstances, we hold that both the 173, Cr.P.C reports arising out of FIR No.24/2020 of Police Station ANF, Islamabad be placed before the Anti-Terrorism Court for a single trial. Resultantly, Criminal Appeal No.206 of 2021 fails and is accordingly dismissed.
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