2001 PLP 380 (SCMR)

DEEDAR HUSSAIN SHAH, J.

Petitioner seeks leave to appeal against the order of the High Court whereby Constitutional Petition No.991 of 1999 filed by the respondents was allowed on 21-10-1999.

2. Facts of the case are that on 20-5-1997, an F.I.R. was registered showing the time of occurrence as 19-5-1997 at 5-30 p.m. by Dr. Abdu Jalil Shaikh at P.S. Saddar under section 365, P.P.C. stating therein that hi younger brother Dr. Abdul Qudoos was kidnapped by some unknown culprits. It was alleged that investigation revealed that Dr. Abdul Qadoos deceased was called by respondent No.1 Jehangir Akhtar Awan through hi; wife Mst. Zubeda respondent No.2 on 19-5-1997 and murdered by him.

3. On 12-6-1999 an application was moved on behalf of the Stag praying to return the case to concerned police station for presentation there of before Anti-Terrorism Court for trial which was allowed and the case was ordered to be transferred to respondent No.4 for disposal in accordance with law vide order, dated 19-7-1999.

4. Being aggrieved and dissatisfied with the said order, the respondent filed writ petition as mentioned above which was allowed hence, the present petition for leave to appeal by the State.

5. Mr. Sarwar Khan, learned Additional A.-G. contended that section 38 of the Anti-Terrorism Act,, 1997 (hereinafter referred to as the Act) provides that:-- "Punishment for terrorist act committed before this Act.

Where person has committed an offence before the commencement of this Act which if committed after the date on which this Act comes into force would constitute a terrorist act hereunder he shall be tries under this Act but shall be liable to punishment as authorized by law at the time the offence was committed." Accordingly learned Sessions Judge South had rightly ordered for referring the case to Anti-Terrorism Court. After taking cognizance of an offence by the Anti-Terrorism Court if the respondent was aggrieved he could have moved an application under section 23 of the Act which provides as follows:-- "

23. Power to transfer cases to regular Courts.

Where, after taking cognizance of an offence, an Anti-Terrorism Court is of opinion that the offence is not a scheduled offence, it shall, notwithstanding that it has no jurisdiction to try such offence, transfer the case for trial of such offence to any Court having jurisdiction under the Code, and the Court to which the case is transferred may proceed with the trial of the offence as if it had taken cognizance of the offence."

6. Mr. S. Zaki Muhammad, learned D.A.-G. contended that since the respondents had not approached the Anti-Terrorism Court for transfer of the case and the deceased being a public servant was brutally murdered, his case falls within the ambit of section 6 (b) of the Act therefore, impugned order suffers from misconception of law.

7. Mr. Gul Zaman Khan, -learned Advocate Supreme Court for respondents Nos. l to 3/caveators submits that the case is not covered by section 6(b) of the Act. He also referred to confessional statement of the respondent recorded by the First Class Magistrate.

8. We have given our anxious thought to the submissions of the learned counsel for the parties and have also examined the material on the record. Admittedly, the respondents had not approached the Anti-Terrorism Court for transfer of the case under section 23 of the Act and the manner m which deceased was done to death also ex facie shows that it was an act of terrorism and as required under section 38 of the Act, the case should have been allowed to be proceeded before the Anti-Terrorism Court.

9. We, therefore, grant leave to appeal to consider (1) whether the impugned judgment of the High Court is sustainable in law?. (2) Whether notification, dated 12-6-1998 can be impugned in the writ petition before the High Court under Article 199 of the Constitution? (3) Whether a criminal case can be transferred to another Court having jurisdiction in jurisdiction? (4) Whether a writ is competent to stay the transfer criminal case from one jurisdiction to another, in exercise of jurisdiction under Article 199 of the Constitution?.

10. The appeal may be fixed in the month of October, 2000 subject to the administrative approval by the Honourable Chief Justice. Q.M.H./M.A.K./S-74/S Leave granted.