2010 PLP 883 (MLD)

MIAN FASIH-UL-MULK, J

Through the instant writ petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, petitioner Mohabat Khan seeks declaration to the effect that trial of case No.15/7 of 2009 pending in the Court of Additional Sessions Judge-II, Haripur be transferred to Anti-Terrorism Court.

2. Brief facts of the case are that complainant has lodged F.I.R. .No.56, dated 16-2-2010 under sections 302/201/34, P.P.C. against respondents. Prior to registration of F.I.R., an application was submitted to local police regarding abduction of deceased on 10-2-2009. It was alleged that many calls were received from the respondents for ransom. Challan was put in Court and after recording statements of prosecution witnesses petitioner filed application for transfer of trial case to Anti-Terrorism Court. The application was dismissed vide impugned order. Hence, this writ petition.

3. Learned counsel for the petitioner contended that the abduction was made for ransom and it is also on record that the occurrence created terror in the locality and it is a scheduled offence triable by a Special Court established under the Anti-Terrorism Act. He prayed that the case be transferred from the Court of learned Additional Sessions Judge to Anti-Terrorism Court for trial.

4. We have heard learned counsel for the petitioner at great length and gone through the record annexed with the petition.

5. A perusal of record would show that F.I.R. was lodged on 16-2-2009 regarding murder of Rakub Khan against the respondents. Thereafter challan was put in Court, charge framed and most of the prosecution evidence has been recorded. The application for transfer of case was turned down on merit.

6. When learned counsel for the petitioner was posed a question as under what provision of law the learned Additional Sessions- Judge was authorized to declare an ordinary offence a schedule offence he could not answer the question for the obvious reason that neither such provision of law exists in the Criminal Procedure Code nor the ordinary Court is authorized to adjudicate or transfer the same to Anti-Terrorism Court. Section 190(2), Cr.P.C. provides procedure and mechanism for taking cognizance of ordinary offences while cases under schedule offences are regulated by provisions of sections 12, 19 and 23 of the Anti-Terrorism Act, 1997, being a special law having overriding effect. The Legislature in its wisdom has conferred the power upon Anti Terrorism to determine as to whether an offence is a schedule offence or not. In case of ordinary offences, Anti-Terrorism Court has been authorized to transfer the same to the regular Court under section 23 of Anti Terrorism Act, 1997. In these circumstances neither the learned Additional Sessions Judge was authorized to entertain such like application nor legally authorized to adjudicate upon such matter. In the facts and circumstances of the case, the learned trial Court rightly turned down the application of the petitioner.

7. Finding no merit in the writ petition, the same is hereby dismissed in limine. H.B.T./98/P Petition dismissed.