2019 PLP 328 (MLD)

Through this constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, petitioners Umar Hameed, Asad Aslam and Salman have challenged the legality of orders dated 28.07.2018 and 11.08.2018 passed by the learned Duty Judge Anti-Terrorism Court, Bahawalpur Division, Bahawalpur whereby their request for deletion of offence under Section 7 of the Anti-Terrorism Act, 1997 at remand-stage was turned down and thereafter their application under Section 23 of the Act ibid for transfer of case FIR No.341 dated 25.07.2018, in respect of offences under Sections 382, 506-B, 427, 148 and 149, P.P.C. and Section 7 of the Anti-Terrorism Act, 1997, registered at Police Station City A-Division Rahimyarkhan to the Court of ordinary jurisdiction was dismissed.

2. Learned counsel for the petitioners submits that from bare perusal of the crime report and the investigation conducted so far, no element of causing intimidation, awe, fear or insecurity in the public or society or the mens rea and actus reus as specified in Section 6 of the Act ibid, is attracted in the case in hand; that the investigation process is still under-way and the challan has not yet been submitted before the learned trial court; that offence under Section 7 of the Act ibid has been deleted to the extent of nominated co-accused namely Muhammad Ismaeel and Muhammad Waqas vide order dated 31.07.2018; that the learned Court below has passed both the impugned orders at pre-mature stage beyond jurisdiction and the same are not sustainable in the eyes of law, which otherwise amounts to hamper the investigation process.

3. Conversely, learned counsel for the respondent No.3 defends the impugned orders while submitting that the petitioners along with their co-accused have committed an offence, which falls under the ambit of Section 6(2)(m)(n) of the Act ibid.

4. Learned Law Officer has half-heartedly opposed this petition.

5. We have heard learned counsel for the petitioners, learned counsel for respondent No.3, learned Assistant Attorney General appearing for the State and have perused the available record with their able assistance.

6. After taking cognizance of the matter, the Anti-Terrorism Court is empowered under Section 23 of Anti- Terrorism Act, 1997 to transfer the case for trial of such offence to the Court of ordinary jurisdiction, if it does not come within the ambit of scheduled offences. For ready reference, Section 23 of Anti- Terrorism Act, 1997 is reproduced as under:- "Power to transfer cases to regular Courts.

Where, after taking cognizance of the offence, 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."

7. The aforementioned provisions of law clearly and without any ambiguity provide that the Anti-Terrorism Court is empowered to transfer the case into the Court of ordinary jurisdiction only when it has taken cognizance of the matter. The petitioners along with their five co-accused were implicated in this case through supplementary statement, they were arrested in this case on 27.07.2018 and the investigating officer made an application before the learned trial court seeking their physical remand for 15-days wherein, vide impugned order dated 28.07.2018, the learned court had given a specific observation that offence under Section 7 of the Act ibid attracts to the facts and circumstances of the case and granted the physical remand. Thereafter, they were sent to judicial lockup vide order dated 11.08.2018 by the said court. On the same day i.e. 11.08.2018, application submitted by the petitioners under Section 23 of the Act ibid to transfer the case to the court of ordinary jurisdiction was dismissed by the said court. Admittedly, the investigation process is underway and complete or incomplete report under Section 173, Cr.P.C. has not yet been submitted before the learned trial court. Learned Court below has expressed his view while granting physical remand of the accused under Section 167, Cr.P.C., which is totally against the law causing prejudice to the case of either side and also amounts to hamper the investigation process. The petitioners made application under Section 23 of the Act ibid before the same learned court before taking cognizance of the matter, which has been decided by the said court without taking into consideration that it was premature. Learned Court below was neither authorized to express such view at the stage of physical remand nor decide the aforesaid application seeking transfer of case to the court of ordinary jurisdiction before taking cognizance of the matter.

8. In view of what has been discussed above, the petition in hand is allowed, both the impugned orders are set aside with the observation that the petitioners may approach the learned trial court seeking the selfsame relief at appropriate stage, if so advised. It is made clear that such application, if filed, shall be decided on its own merits strictly in accordance with law. JK/U-7/L Petition allowed.