2018 P Cr (PLP)

FAHIM AHMED SIDDIQUI, J.

Through the instant application, the applicants have impugned Order dated 18-3-2017 passed by the learned Additional Sessions Judge-III, Khairpur in Sessions Case No. 540/2010 whereby the application of learned ADPP for transfer of case to the Anti-Terrorism Court was considered and directed the Investigation Officer to collect the Final Report and submit the same before the learned Judge of Anti-Terrorism Court.

2. The learned counsel for the applicants made his submission at length. According to him, the order of the learned Additional Sessions Judge dated 18-3-2017 is totally illegal and unlawful and the same is required to be set aside. He submits that the appellants were appearing before the trial Court and now after eight years, the trial court has passed the order for resubmitting the Final Report before the learned Judge Anti-Terrorism Court, which is unjust and amounting to vexing the appellants unduly. He submits that the case of the appellants is a fit case for trial before the ordinary Court. He submits that the circumstances of the case demand that it should not be entrusted to the Anti-Terrorism Court. He took reliance from 2006 YLR 224 and unreported order passed by this Court in Criminal Revision Application No. S-55 of 2010.

3. The learned APG opposes the instant application by submitting that the order of the learned Additional Sessions Judge is proper and the same has been passed according to law as such the same does not require any interference by this Court. He submits that in the incident a uniformed policeman lost his life as such the learned judge rightly observed that the matter is required to be dealt with by the Anti-Terrorism Court.

4. I have heard the arguments advanced and have gone through the material placed before me. It is the case of the prosecution that on the fateful date and time, an encounter took place between accused persons and the police in which one police head constable namely Munawar Ali Bhutto received fatal injuries due to firing made by the accused persons. The said injured was sent to Hospital where he lost his life. The act of firing at police, when they are discharging their duties, is actually an act of terrorism and such persons are required to be tried by the Anti-Terrorism Courts only. It is settled that in case of an act of terrorism, the offence is exclusively triable by the Anti-Terrorism Court. In this respect, the law is very much clear. The legislature has further elucidated their intention by inserting section 6(2)(n) in Anti-Terrorism Act, 1997, according to which involvement of an accused in an act of serious violence against a member of the police force, armed forces, civil armed forces, or a public servant shall be an act of terrorism. In this respect, reliance may be taken from a judgment of a Division Bench of this Court reported as Qaiser Baloch and 3 others v. The State (2013 PCr.LJ 1259) in which it has been observed as: "The record reflects that applicants/accused had fired upon the police party and deterred them from discharging their official duties. From the place of wardat empties of automatic weapons used by the accused have been recovered. The act of applicants/accused clearly shows the serious violence against the members of police force and accused created terror by such act in the area. Offence clearly falls under section 6(2)(n) of the Anti-Terrorism Act, 1997."

5. The learned counsel for the applicants emphasized upon the inordinate delay in deciding the point of jurisdiction by the trial Court and according to him after such a long delay, the case cannot be transferred or the Final Report be returned to the investigation officer for submitting the same before the learned Presiding Officer of Anti-Terrorism Court. In this respect, I am of the view that a legal point can be raised at any time before the trial court and the trial court is very much competent to decide the same and if the trial Court came to conclusion that it lacks jurisdiction then it may act accordingly. If a court has no jurisdiction to decide a case under the law, it cannot assume the jurisdiction on account of the prevailing facts and circumstances of the case. As explained above, the jurisdiction of an ordinary court is ousted in case of serious violence offered against the police or any other uniformed force or public servant in the discharge of their duties, and in such a situation, the accused, allegedly involved in offering such violence against police etc., is required to be tried by the Anti-Terrorism Court having jurisdiction. In the instant matter, it has been ordered that the Final Report is returned to Investigation Officer to place the same before the concerned Anti-Terrorism Court. As per provision of section 23 of Anti-Terrorism Act, 1997, Jurisdiction to decide whether a particular case did or did not fall within purview of its jurisdiction lay with the Presiding Judge of Anti-Terrorism Court. If the learned counsel for the applicants considers that the case is not triable by the Anti-Terrorism Courts on account of personal enmity or any other reasons, then he has an opportunity to agitate his point of view before the said Court. In this respect, I would like to quote a passage occurring in Mehram Ali's case (PLD 1998 SC 1445):- "It was urged by Mr. Gilani, learned counsel for some of the petitioners, that a perusal of the amended Schedule indicates that if the victim of a murder case under section 302, P.P.C. is a member of police, armed forces or civil armed forces or a public servant, the accused of such case is triable under A.T.A. even if the murder had taken place on account of personal enmity and had nothing to do with the discharge of his official functions/duties. Whereas, Ch. Muhammad Farooq, learned Attorney-General, has submitted that in order to terrorise the public servants so that they may not discharge their functions/duties efficiently and effectively, the terrorists started killing public servants, for example, the Commissioner of Sargodha, a Secretary of the Provincial Government in Lahore, Superintendent of Police, Gujranwala, and the Managing Director, K.E.S.C., Karachi, were brutally murdered. According to him, the above acts of terrorism were intended and designed to create panic amongst the public servants. It will suffice to observe that if a Government servant or any other employee of the Government functionaries is murdered because he belongs to the above service and that there was no enmity or plausible reason for commission of the above offence, such a killing is an act of terrorism within the ambit of the Act and can lawfully be included in the Schedule, but if the murder is committed solely on account of personal enmity, such a murder will have no nexus with the above provisions of the Act and will not be triable under the Act. However, this is a matter to he decided by the Special Court as under section 23 of the Act Special Court has been empowered to transfer a case to a regular Court if after taking cognizance of an offence, it is of the opinion that the offence is not a scheduled offence."

6. The learned counsel for the applicants have relied upon the case of Abdul Razzaq v. The State (2006 YLR 224). In this case, the learned Additional Sessions Judge after going through the available material formed an opinion that the case is to be tried under section 322, P.P.C. instead of section 302, P.P.C. and Charge Sheet was returned to resubmit the same after amending before the magistrate of section 30 of Cr.P.C. The said case law pertains to amendment of penal sections without collecting material and recording evidence, and there was no question of jurisdiction of regular and special courts; therefore, the same is not applicable to the instant case. As far as the unreported case of Criminal Revision No.55 of 2010 is concerned, in the said case the order was passed without hearing the applicant as such the same was set aside with direction to the trial Court to pass a fresh order by giving an opportunity of hearing. As such the said case law, is also distinguishing.

7. The consequential outcome of the above discussion is that the instant Criminal Miscellaneous Application is devoid of merits and the same was dismissed under the short order dated 13-06-2017 and these are the reasons for the same. JK/Z-8/Sindh Application dismissed.