P L D 2015 Balochistan 54
Before Muhammad Noor Meskanzai, C.J. and Muhammad Hashim Khan Kakar, J
INDEPENDENT MEDIA CORPORATION (PVT.) LTD. through Attorney and another ---
Petitioners
versus
PROSECUTOR GENERAL, QUETTA and 7 others ---Respondents
Constitutional Petition No.891 of 2014, decided on 30th December, 2014.
(a) Criminal Procedure Code (V of 1898) ---
----S. 185(2) ---Proceedings before two courts ---Interference by High Court ---Principle ---Sine
qua non for interference by High Court unde r S.185(2), Cr.P.C., is as to where proceedings were
first commenced.
(b) Criminal Procedure Code (V of 1898) ---
----S. 185(2) ---Proceedings before two courts ---Earlier commencement, principle of ---
Interference by High Court ---Scope ---Where two or mor e subordinate courts taking cognizance
of same offence are not subordinate to same High Court, therefore, to eliminate possible
confusion and conflict, principle of earlier commencement has been enjoined.
(c) Criminal Procedure Code (V of 1898) ---
----S. 185(2) ---Proceedings before two courts ---Interference by High Court ---Considering
factors ---Factum of earlier commencement may be one of such considerations but not the only
consideration for exercising discretion of High Court conferred under S.185(1) , Cr.P.C.---
Question of convenience and other peculiar factor of case may be a material consideration for
exercising such discretion.
(d) Criminal Procedure Code (V of 1898) ---
----S.185---Constitution of Pakistan, Art.199---Constitutional petition ---Multiple FIRs for one
occurrence--- Quashing of FIRs ---Principle ---Large number of FIRs were got registered against
petitioners all over the country for one and the same occurrence ---Petitioners sought quashing of
FIRs pending before different courts subordinate to the High Court ---Validity ---Court had to
examine facts and circumstances giving rise to all FIRs and test of sameness was to be applied to
find out whether all FIRs related to same incident in respect of same occurrence or were in
regard to incidents which were two or more parts of the same transaction--- If answer was in the
affirmative, second or remaining FIRs were liable to be quashed ---In case, contrary was proved,
where version in second FIR was different and they were in respect of two different
incidents/crimes, second FIR was permissible ---Manner in which number of FIRs were got
registered, that too, in different parts of country regarding one and the same offence and
subsequently its investigation and submission of challans before concerned courts having
jurisdiction, indicated that it was abuse of process of law ---There had to be an end to litigation in
every legal system, it would be shocking to judicial system to tr y a man again and again for one
and the same alleged offence and that was what would happen if such practice was allowed ---
High Court quashed all FIRs except one pending trial ---Petition was allowed accordingly.
Saim Hashim and Zahra Sehr Vayani for Petitioners.
Abdul Latif Kakar, Asstt. A.G. for Respondents.
Miss Sarwat Hina, Addl. P.G.
Date of hearing: 16h December, 2014.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J : The instant constitution petition carries
the following prayer:
A. That in view of the fact that other courts in the Province of Sindh has taken cognizance
for the same alleged offence, this Hon'ble Court may order quashment of multiple trials pending
before the trial courts subordinate to this Hon'ble Court which have been comme nced in
pursuance of F1Rs registered as mentioned in Para '20' of the instant petition for the alleged
morning show of Dr. Shaista Lodhi on Geo Entertainment dated 14th May 2014. Or in the
alternative.
B. The Hon'ble Court may direct to quash all the tri als except ones which have been
commenced in pursuance of FIRS as mentioned in Para '20' of the instant petition registered in
pursuance of alleged morning show of Dr. Shaista Lodhi on Geo Entertainment dated 14th May,
2014.
C. That in the meanwhile, till the disposal of this petition this Hon'ble Court may kindly
restrain the respondents/law enforcing agencies working under the respondents from taking any
coercive action against the petitioners on the basis of any trial pending before any of subordinate
Court of this Hon'ble Court.
D. That in view of the unique and unprecedented circumstances on the basis of which the
instant petition is being filed, this Hon'ble Court may pass any other just and appropriate order
that it may deem fit to do complete jus tice to the petitioners."
2. It is the case of the prosecution that on l4th May 2014, during the transmission of
morning show of Dr. Shaista Lodhi "Utho Jago Pakistan", while committing the offence of
Toheen -e-Ahl-e-Bait, a Kalam was sung by some Qawals, usually sung all over Pakistan,
particularly at the time of wedding ceremonies, however, within hours of airing of that morning
show, the host of the Programme Dr. Shaista Lodhi openly and unconditionally prayed for
forgiveness from the Almighty Allah and also publically apologized, stating that all this was
inadvertent and unintentional. Since 15th May, 2014, the apology of Dr. Shaista Lodhi has been
broadcast after every hour on 'Geo News' and `Geo Entertainment' channels. After airing the said
show, cog nizance was taken by Pakistan Electronic Media Regulatory Authority ("PEMRA"), a
number of FIRs were lodged against the petitioners including the following:
(i) FIR No.3 of 2014, under Sections 295- A, 295- C and 298- A of the Pakistan Penal Code
1860 (PPC) , registered at Sambaza Police Station district Zhob on the report of one Habibullah
son of Haji Baz Gul:
(ii) FIR No.5 of 2014, under Sections 295, 295- A and 298- A of the P.P.C., registered at Zhob
Police Station district Zhob on the report of one Arsala Khan son of Sahib Jan;
(iii) FIR No.35 of 2014, under Sections 295- A, 298- A read with section 109 of the P.P.C. and
Section 7 of the Anti -terrorism Act, 1997, registered at Jinnah Town Police Station, Quetta on
the report of one Muhammad Naseem so n of Sher Muhammad, and
(iv) FIR No.117 of 2014, under Sections 295 -A, 298 -A read with section 109 of the P.P.C.
and section 7 of the Anti -terrorism Act, 1997, registered at City Police Station, Quetta. In
pursuance of registration of the aforesaid FIRs, challans were prepared and submitted before the
different Courts, which are still pending.
3. Messrs Saim Hashmi and Zahra Sehr Vayani, Advocates, representing the petitioners,
submitted that in view of pendency of four separate proceedings over the sam e offence in four
different Courts in the Province of Balochistan would only lead to a double jeopardy and, as
such, the proceedings pending in the said Courts, except the learned Sessions Judge, Quetta, as
prayed for by the petitioners, should be dropped. They further submitted that the dominant
consideration for interference under section 185(1) of the Code of Criminal Procedure 1898
(Cr.P.C.) is the ground of convenience of the accused and not the fact of earlier commencement,
as enjoined under section 185(2) of the Cr.P.C. While concluding their arguments, they
submitted that proceedings were firstly commenced by a Court at Quetta within the local limits
of appellate jurisdiction of this Court, thus, this Court, within the purview of section 185(2) of
the Cr.P.C, can direct trial of the petitioners by the learned Sessions Judge, Quetta and
quashment of the remaining proceedings.
4. On the contrary, Mr. Abdul Latif Kakar, learned Assistant Advocate General, and Miss.
Sarwat Hina, learned Additional Prosecutor General, Balochistan, contended that the question of
convenience of the accused is immaterial and the sine qua non for an interference under section
185(1) of the Cr.P.C. is as to which proceedings were 'first commenced' as enjoined under
section 185(2) of the Cr.P.C. They further stated that the proceedings by the different Courts in
the sister province of Sindh were commenced first and cognizance was taken by the said Courts,
as such, this Court has no jurisdiction to adjudicate upon the matter within the purview of section
185(2) of the Cr.P.C. In response to the contention raised by them, Mr.Hashmi was of the view
that the concept of an 'earlier commencement' as enjoined under section 185(2) of the Cr.P.C.
cannot be imported into section 185(1) of the Cr.P.C. for the purpose of determining as to in
which of the four subordinate Courts, the inquiry or trial should go on.
5. Since the claim of the petitioners relates to interpretation of section 185 of the Cr.P.C. as
such, it would be advantageous t o reproduce the same:
185. High Court to decide, in case of doubt, district where inquiry or trial shall take
place. --(I) Whenever a question arises as to which of two or more Courts subordinate to the same
High Court ought to inquire into or try any of fence, it shall be decided by that High Court.
(2) Where two or more Courts not subordinate to the same High Court have taken
cognizance of the same offence, the High Court within the local limits of whose appellate
criminal jurisdiction the proceeding were first commenced may direct the trial of such offender
to be held in any Court subordinate to it, and if it so decides all other proceedings against such
person in respect of such offence shall be discontinued if such High Court, upon the matter
having been brought to its notice, does not so decide any other High Court, within the local
limits of whose appellate criminal jurisdiction such proceedings are pending may give alike
direction, and upon its so doing all other such proceedings shall be disconti nued."
6. A bare perusal of subsection (1) of section 185 of the Cr.P.C. would show that the said
provision does not fetter in any way the discretion of High Court by enjoining any condition
precedent for deciding as to in which of the two or more Courts , subordinate to the same High
Court, the inquiry or trial shall proceed, however, in subsection (2) of section 185 of the Cr.P.C,
the sine qua non for such interference is as to where to proceedings were first commenced. The
point for determination, there fore, is whether the concept of an earlier commencement as
enjoined in subsection (2) can be imported into subsection (1) of section 185 of the Cr.P.C.
which is, otherwise, silent on the same. In this regard, we are of the considered view that the
dominant consideration of an earlier commencement has been incorporated in subsection (2) of
section 185 of the Cr.P.C. for the reasons, because the said subsection refers to a different state
of circumstances, where the two or more subordinate Courts taking cogni zance of the same
offence are not subordinate to the same High Court and, therefore, to eliminate possible
confusion and conflict, the principle of earlier commencement has been enjoined, however, the
same is not the position, as enjoined under subsection (1) of section 185 of the Cr.P.C, where the
two or more Courts concerned are subordinate to the same High Court. The field of consideration
is, therefore, wider and includes not only the ground of earlier commencement, but also the
ground of general convenience and any other sufficient reasons, while deciding as to which of
the two subordinate Courts shall inquire into or try the offence.
7. The discretion conferred under the said subsection is unfettered and untrammeled by any
consideration of an earlier commencement only. The factum of earlier commencement may be
one of such considerations, but not the only consideration for exercising the discretion of the
Court conferred under subsection (1) of section 185 of the Cr.P.C. In that context, undoubtedly,
the question of convenience and other peculiar factor of the case may be a material consideration
for exercising the said discretion.
8. It is also worth mentioning that section 185 of the Cr.P.C. does not enable a High Court
to make an order transferring a case pending on the file of a criminal Court whether within or
outside its jurisdiction to the file of another criminal Court whether such other criminal Court be
within its own jurisdiction or without its jurisdiction. Section 185 of the Cr.P.C. has absolutely
nothing to do with transfer or with a High Court's power of transfer. The power to transfer vested
in the High Court, insofar as the Criminal Procedure Code is concerned, is dealt with solely by
section 526 of the Cr.P.C. Similarly, section 527(1) of the Cr.P.C. implies that it is only the
Provincial Government that has the power to transfer a case pending in a Court subordinate to
one High Court to be tried by a Court subordinate to another High Court. Section 185(1) of the
Cr.P.C. only implies th at whenever a question arises as to which of two or more Courts
subordinate to the same High Court ought to inquire or try any offence, shall be decided by that
High Court.
9. Considering the instant case on the touchstone of the aforesaid provisions of law,
particularly the prayer of learned counsel for the petitioners in respect of discontinuing the
proceedings pending before different Courts outside the jurisdiction of this Court, we are unable
to pass any order due to lack of relevant evidence, showin g that the subordinate Courts of
Balochistan have commenced proceeding prior to the Courts of sister provinces. In this regard,
the learned Assistant Advocate General as well as Additional Prosecutor General has rightly
pointed out that for the same relief , the petitioners have already approached the Hon'ble Sindh
High Court at Karachi by means of filing C.P. No.D -3608 of 2014 and referred to the order dated
15th July 2014, the operative portion whereof reads as under:
"We have briefly considered section 185 Cr.P.C. with the assistance of the learned
counsel for the petitioner as well as learned AAG. Prima facie, but without prejudice to the case
of the parties, the question of relief cannot be properly addressed unless the details and
particulars of all the FIRs being referred to, and proceedings (if any) in relation thereto in the
different criminal courts, are not on the record. Learned Counsel for the petitioner undertakes to
do the needful and place on record the relevant details under cover of a stat ement."
Thus, it would be appropriate for the petitioners to approach the relevant High Courts for
redressal of their grievances regarding consolidation of FIRs and trial by a single Court, if
advised.
10. So far as the prayer of the learned counsel for the petitioners regarding trial of the
petitioners by a single Court is concerned, we have noticed that almost 75 FIRs across the
country have been got registered against the management of petitioner No.1 and petitioner No.2.
The moot question for consideration arises as to whether investigation and further proceedings
on the basis of all the FIRs is permissible? Though a straitjacket formula cannot be laid down,
yet the only test whether 75 FIRs can be permit ted to exist. In such case, the Court has to
examine the facts and circumstances giving rise to all the FIRs and the test of sameness is to be
applied to find out whether all the FIRs relate to the same incident in respect of the same
occurrence or are in regard to the incidents, which are two or more parts of the same transaction.
If the answer is in the affirmative, the second or the remaining FIRs are liable to be quashed.
However, in case, the contrary is proved, where the version in the second FIR is different and
they are in respect of the two different incidents/crimes, the second FIR is permissible.
11. Considering the instant case on the touchstone of aforesaid settled legal propositions, we
are of the view that it is neither possible nor convenie nt for the petitioners to obtain bail from
various Courts in various cities joining various investigations and finally defending themselves
before various Courts, that too, for one and the same offence. Admittedly, all the aforementioned
FIRs have been reg istered for the same incident under the same provisions of law against the
same accused and in such state of affairs, taking cognizance by multiple Courts, having different
territorial jurisdiction, simultaneously, seems to be in violation of Articles 4 an d 13 of the
Constitution of Islamic Republic of Pakistan 1973 ("the Constitution"), section 403 of the
Cr.P.C. and section 26 of the General Clauses Act 1897. Similarly, Part VI, Chapter XV, sections
177, 179, 180, 181 and section 235 of the Cr.P.C. also e nvisage a single trial.
12. We have also noticed that the petitioners have been charge -sheeted in a number of Courts
and they shall either be convicted or acquitted on the basis of facts and evidence. In such view of
the matter the simultaneous and conti nuous trials in presence of same facts and on the same set
of evidence and allegations, would patently result in a duplicate punishment or at least a
duplicate trial in violation of the doctrine of double jeopardy, thus, the petitioners can seek the
relief of acquittal without first having been convicted or acquitted for the same offence by a
Court of competent jurisdiction. Even otherwise, in the instant case, the documents appended
with the petition revealed that they have been acquitted of the charge by a number of Courts,
while convicted for the same offence by an Anti -terrorism Court, Gilgit Baltistan vide judgment
dated 25th November 2014.
13. We are also in agreement with the learned counsel for the petitioners that it is the
convenience of the peti tioners, which is to be considered and no question, however, of the
complainant being inconvenienced, because the complainants are different in the 75 proceedings
and, as such, whoever may be, the complainants will not be inconvenienced in any way,
wherever the proceedings may ultimately take place. Even otherwise, the question of general
convenience does not include the complainants and can only relate to the accused in such
proceedings and the same again must depend on the facts of each case. In the instant case; after
broadcasting of the disputed Kalam, within a short span of time, competitor media channels
unleashed a most ferocious and nasty provocative campaign charging the host of petitioner No.I
as well as petitioner No. 2, allegedly, committed disre spect to Hazrat Bibi Fatima (razi allah tala
anhu) and Hazrat Ali (razi allah tala anhu). In such situation, it is absolutely not possible for the
petitioners to defend themselves before different Courts, situated across the country.
14. The manner, in w hich a number of FIRs have been got registered, that too, in different
parts of the country regarding one and the same offence and, subsequently, its investigation and
submission of challans before the concerned Courts, having jurisdiction, clearly indicat e that it is
abuse of process of law. There has to be an end to litigation in every legal system. It would be
shocking to the judicial conscience to try a man again and again for one and the same alleged
offence and that is what would happen if we allow such practice. Needless to observe that, as
stated above, Article 13 of the Constitution prescribes that "no person shall be prosecuted or
punished for the same offence more than once". The word 'liberty' under Article 9 of the
Constitution is of the widest amplitude covering variety .of rights, which goes to constitute
personal liberty of a citizen. Similarly, Article 4 of the Constitution enshrines that it is
inalienable right of every citizen to enjoy the protection of law and to be treated in accordance
with law. Likewise, Article 10 -A of the Constitution guarantees a fair trial and due process.
Thus, the deprivation of any citizen shall be only as per procedure prescribed in the Code
conformable to the mandate of the Constitution.
Under the circumstances, we partly allow this constitutional petition and quash the
proceedings in Crimes Nos.3 of 2014, 5 of 2014 and 35 of 2014, respectively lodged with Police
Stations Sambaza, Zhob and Quetta up to the extent of the petitioners. However, this order will
not affect trial of the petitioners by Sessions Judge, Quetta in Crime No.117 of 2014, dated 3rd
June 2014, under section 295- A, read with section 109 of the Pakistan Penal Code.
MH/10/Bal. Order accordingly.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.