P L D 2003 Peshawar 142 (PLP)

MALIK HAMID SAEED, J.

Brief facts forming the background of the instant writ petition are that the petitioner's son, who was a student of 1st year in Degree College, D.I. Khan was abducted on 5-3-1994 for-ransom and finally murdered in a brutal .way. Certain persons were made accused in the case, who stood their trial before the learned Judge, Special Court, D.I. Khan under the Suppression of Terrorist Activities (Special Courts) Act, 1975. Except Muhammad Umair and Abdur Rehman, who were acquitted in the case, the remaining accused (now respondents in this writ petition) were: convicted and sentenced to death in addition to other sentences by the learned Judge, Special Court, D.I Khan.

2. The convict/accused filed appeals in this Court. This Court vide judgment dated 18-4-2001 found that certain proceedings in the case were conducted by the learned Sessions Judge, Tank (Camp at D.I. Khan) who was not vested with the power as Special Judge under the Suppression bf Terrorist Activities Act, 1975, hence it was ordered that the accused should .be tried afresh. Accordingly, the appeals were accepted and the case was remanded to the trial Court/Judge, Special Court, D.I. Khan for trial de novo. The criminal revision against the acquittal of Muhammad Umair and Abdur Rehman was, however, dismissed as their acquittal was never challenged either by the complainant or by the State. The complainant party assailed the impugned- judgment of this Court before the august Supreme Court of Pakistan but could not succeed. The review petition was also dismissed by the august Supreme Court of Pakistan.

3. When the case came back to the Court of learned Special Judge, D.I. Khan for fresh trial, by then the Suppression of Terrorist Activities Act, 1975 was repealed through Amendment Ordinance No.XXXIX of 2001. Over and above, the learned Sessions Judge, D.I. Khan, upon whom powers of the Special Judge were conferred by the Government under the repealed Suppression of Terrorist Activities Act was no more the Presiding Officer of the Sessions Court at D.I. Khan, hence no fresh powers could be conferred on the successor Sessions Judge after the repeal of the Suppression of Terrorist Activities Act. Realising the difficulty, the learned Sessions Judge, D.I. Khan sought guidance of this Court in the matter, who was directed through office memo. to treat the case .as pending within the meanings of clause (2) of subsection (7) of section 39-B of the Anti-Terrorism Act, 1997 and that the case should continue to be proceeded with in accordance with law before the concerned Court of competent jurisdiction.

4. The case is pending trial and the learned Sessions Judge, D.I. Khan is going to take cognizance in the case, hence the petitioner through the instant writ petition prays for its transfer to the Anti-Terrorism Court established under the Anti-Terrorism Act, 1997.

5. We have heard the learned counsel for the parties and have also gone through the material placed on file.

6. The Anti-Terrorism Act was amended through Amendment Ordinance XXXIX of 2001 whereby section 39-B was newly inserted whereby the Suppression of Terrorist Activities (Special Courts) Act, 1975 (XV of 1975) was repealed. Under subsection (2) of section 39-B, clause (b) it was, however, provided as under:-- (b) every case, appeal and legal proceedings whatsoever filed or pending before any Court under the Suppression of Terrorist Activities (Special Courts) Act, 1975, including the High Court and the Supreme Court shall continue to be proceeded. with in accordance with law before the concerned Court of competent jurisdiction, including the Court established under this Act, and all orders passed, decisions made and judgment delivered whether in the past or which may be made delivered hereafter by such concerned Court whether original, appellate or revisional, shall be deemed to have been validly and competently made. It is further provided under clause (e) of section 39-B as under:-- (c) all cases pending before the Anti-Terrorism Court or Special Court immediately before the commencement of the Anti-Terrorism (Amendment) Ordinance, 2001, if not covered by this Act or clauses (a) and (b) above, shall stand transferred to the respective Courts of Sessions of the area or such other Courts of competent jurisdiction where the cases were registered against the accused and such Courts shall proceed with the cases from the stage at which they were pending, without the necessity of recalling any witnesses, and.". The above provision indicates that those pending cases which do not constitute a terrorist act; within the meaning of Anti-Terrorism Act, the same would be transferred and tried by the respective Courts of Sessions of the area or such other Courts of competent jurisdiction where the cases were registered against the accused.

7. Admittedly, the case which is subject-matter of the instant writ petition was triable by a Special Court under the Suppression of Terrorist Activities Act as held by this Court at the time of deciding the appeals of the convict accused/respondents, but when the case was again entrusted to the Court of Sessions. Judge at DI Khan for a fresh trial in the capacity of a Special Court, by then the Suppression of Terrorist Activities Act was no more in the -field and the learned Sessions Judge at D.I. Khan having not even been notified as Special Judge previously, could not proceed with the case as no powers could be conferred on him after the repeal of the Suppression of Terrorist Activities Act. Under above provisions of law, now it is to be seen as to whether the case against the respondents falls within the definition of "terrorism" as defined in section 6 of the Anti-Terrorism Act or not. Clauses (a) and (e) of subsection (2) of section 6 of the Anti-Terrorism Act would clearly make it a case triable by the Anti-Terrorism Court constituted under the Anti-Terrorism Act. The only restriction upon the learned Judge of the Anti-Terrorism Court, as per section 38 of the Act, would be that in case the prosecution succeeded to establish its case against the accused, they shall be liable to punishment as authorised by law at the time the offence was committed, because of the fact that in this case the offence was committed before the commencement of the Anti Terrorism Act.

8. For the aforesaid reasons, this writ petition is accepted and the case against respondents Nos.2 to 4 is hereby ordered to be transferred to the concerned Anti-Terrorism Court from the Court of learned Sessions Judge, D.I.Khan for trial within the meanings of section 38 of the Anti-Terrorism Act, 1997. No order as to costs. N.H.Q./725/P Petition accepted