IN THE SUPREME COURT OF PAKISTAN 
(Appellate Jurisdiction) 
 
 
PRESENT: 
Mr. Justice Mazhar Alam Khan Miankhel 
Mr. Justice Qazi Muhammad Amin Ahmed 
 
 
 
Criminal Petition No.46-P of 2016 
(Against the order dated 20.04.2016 passed by the Peshawar High Court Peshawar 
passed in Cr. R. No.66-P/2015 with Cr. Misc. No.189-P/2016) 
 
 
 
Muhammad Iltaf Khan 
 
 
 
…Petitioner(s) 
Versus 
 
 
 
 
 
 
 
  
Basheer and others  
 
…Respondent(s) 
 
 
For the Petitioner(s): 
Mr. Muhammad Tariq Hoti, ASC 
 
 
 
 
Mr. Muhammad Ajmal Khan, AOR 
 
 
 
 
For the State: 
 Mr. Shumayl Butt, Advocate General KP 
 
Malik Akhtar Hussain, Addl. Advocate General 
KP 
 
Mr. Aamir Javed, Addl. Attorney General for 
Pakistan.  
 
Date of hearing: 
26.07.2021 
 
 
 
 
 
ORDER 
 
 
Qazi Muhammad Amin Ahmed, J.- Aggrieved by certain 
imputations, viewed as calculatedly malignant, the petitioner instituted 
a criminal complaint under section 500 of the Pakistan Penal Code, 
1860 (P.P.C.), directly in the Court of Session at Mardan against his 
accusers, respondents herein; they were summoned pursuant to the 
process of the Court to face indictment vide order dated 18.05.2015, 
challenged on the ground that the learned Sessions Judge could not 
have issued the process without taking cognizance in derogation to the 
procedure provided under section 193 of the Code of Criminal 
Procedure, 1898 (the Code). The argument weighed with a learned 
Judge-in-Chamber of the Peshawar High Court and the process was 
quashed in pursuance thereto vide impugned judgment dated 
20.04.2016, being assailed herein. Respondents alongside the Attorney 
Criminal Petition No.46-P/2016  
2
General for Pakistan and Advocate General Khyber Pakhtunkhwa were 
sent for, latter to assist the Court. 
2. 
 
   According to the learned counsel for the petitioner, in the 
wake of addition of section 502-A in the P.P.C., introduced by Act IX of 
2004, there was no embargo left in the field for the Court of Session, 
standing in impediment to assumption of cognizance by itself for 
offences enumerated under Chapter XXI thereof as the said amendment 
expressly excluded the conventional magisterial route; he has laid 
emphasis on the non-obstante clause inserted in section 502-A, to argue 
that it expressly left out application of the Code. Prominent amongst his 
various submissions and references was the argument that the 
legislature, in its wisdom and competence, devised a special procedure 
for expeditious disposal of cases of defamation within a stipulated 
timeframe and, thus, the Court of Session was consciously empowered 
to take direct cognizance in order to obviate procedural delays, a 
purpose that can be clearly ‘Read Down’ without possibility of error; he 
was supported by the Advocate General Khyber Pakhtunkhwa who 
addressed on Court call.  
 
Learned counsel for the respondents, contrarily, defended the 
impugned judgment on the ground that non-obstante clause merely 
envisaged prosecution of the offence by a Court of Session, 
notwithstanding the quantum of sentence provided therefor and, thus, 
it could not be construed to have swept away the entire mechanism 
provided under the Code as embargo under section 193 of the Code 
expressly stood in impediment thereto; he has referred to section  
203-A, B and C of the Code to argue that expression “taking of 
cognizance” of designated offences, “in the court of competent 
jurisdiction” is conspicuously missing in section 502-A of the P.P.C. to 
unambiguously suggest that the complaint was to have been routed 
through the regular procedure; he has been supported by the Deputy 
Attorney General for Pakistan.  
3. 
 
Heard. Record perused. 
4. 
 
Section 193 of the Code places a complete and clear bar on 
taking of cognizance of any offence by the Court of Session in its 
original jurisdiction unless the case is sent up by a Magistrate under 
subsection 2 of section 190 of the Code. It is petitioner’s case that 
introduction of section 502-A inserted through the Defamation 
(Amendment Act IX) of 2004 in the P.P.C. circumvents the supra bar 
Criminal Petition No.46-P/2016  
3
and a complaint for prosecution of defamation under section 500 of the 
P.P.C can be directly instituted in the Court of Session for decision 
within the stipulated period of ninety days; the argument is built on the 
non-obstante clause that reads as under: 
 
“502-A. 
Trial 
of 
offences 
under 
this 
chapter.- 
Notwithstanding anything contained in the Code of 
Criminal Procedure, 1898 (Act V of 1898), the Court of 
Session shall have the jurisdiction to try an offence 
under this Chapter and decide it within a period of 
ninety days.” 
 
A non-obstante clause in a Statute is a potent legislative tool often 
employed, essentially to achieve a limited/specific statutory purpose, 
nonetheless, the concomitant overriding effect is purpose specific 
without impinging upon the structural integrity of the Statute; it merely 
presents a restricted deviation or departure without disturbing the 
overall functionality of the Statute.  
 
Offence under section 500 of the P.P.C. is punishable with 
imprisonment that may possibly extend to a period of 5 years and as 
such, triable by a Magistrate. The legislature in its wisdom desired an 
expeditious trial of the offence with right of appeal going to the High 
Court and this appears to be the dominant purpose for insertion of 
section 502A in the P.P.C. with no bearings upon the procedure, 
otherwise provided for the institution of a complaint; aforesaid 
construction is supported by the law declared by this Court in the cases 
reported as Syed Azhar Hussain Shah and another Vs. The State and 
others (2019 S C M R 537), Major ((Retd.) Barkat Ali and others Versus 
Qaim Din and others (2006 S C M R 562), Habibul Wahab-el-Kheiri Vs. 
Ch. Saeed Ahmad (1979 S C M R 545), Rahim Dad Vs. The State and 
another (1980 P Cr. L J 500), Riffat Hayat Vs. Judge Special Court for 
Suppression of Terrorist Activities, Lahore and another (1994 SCMR 
2177), JIK Industries Limited and Ors. Vs. Amarlal Versus Jumani and 
Ors.  (AIR 2012 SC 1079), Madhav Rao Jivaji Rao Scindia Bahadur and 
Ors. Vs. Union of India (UOI) and Ors. (AIR1971 SC 530), Central Bank of 
India Vs. State of Kerala and Ors. (2009) 4 SCC 94, Balveer Singh and 
Ors. Vs. Respondent: State of Rajasthan and Ors. (AIR 2016 SC 2266), 
P.C. Gulati Vs.Lajya Ram Kapur and Ors (AIR 1966 SC 595) and Basdeo 
and Ors. Vs. Emperor (AIR 1945 All 340). 
Criminal Petition No.46-P/2016  
4
The High Court though well within the remit of law, nonetheless, 
should have preferred to return the complaint for its proper institution, 
therefore, 
the 
complainant/respondent, 
successive 
failures, 
notwithstanding, may still present his complaint before the Area 
Magistrate for its onward transmission to the Court of Session for 
redressal of grievance complained, if so advised. Petition fails. Leave 
declined.  
 
 
 
 
 
Judge 
 
 
 
Judge 
Announced in open Court on 16.11.2021 
at Islamabad 
Approved for Reporting 
Azmat/* 
 
 
 
 
 
 
 
Judge 
 
