P L D 2010 Lahore 114 (PLP)

This order shall dispose of Writ Petition No.7328 of 2008 (Ch. Khalid Mushtaq v. Special Judge etc.) calling in question the impugned orders dated 22-2-2008 and 7-3-2008 whereby the learned trial Court (Judge Anti-Terrorism Court-III, Lahore) has directed submission of challan under section 365-A, P.P.C. and Writ Petition No. 4820 of 2008 (Ch. Khalid Mushtaq v. S.P. (Investigation) whereby quashment of impugned F.I.R. No. 862 of 2007 dated 26-12-2007, under section 365-A, P.P.C. Police Station Faisal Town, Lahore, has been sought.

2. In the first Constitutional Petition (Writ Petition No.7328 of 2008) learned counsel for the petitioner contends that the orders passed by the learned trial Court are without lawful authority; that while doing so, the learned trial Judge has assumed the role of an Investigating Agency and that the learned trial Court has no jurisdiction to direct the police to submit challan under a certain provision of law. In this regard learned counsel has placed on record a copy of the order dated 24-10-2007 passed by a learned Division Bench of this Court in Writ Petition No. 1078 of 2007 whereby a similar direction of the learned Special Court was brushed aside. Confronted with the above situation, the learned Advocate General. Punjab has frankly conceded that the learned trial Court has no jurisdiction to pass such an order.

3. On the other hand, learned counsel for the complainant, while defending the impugned orders, contends that under section 19 of the Anti-Terrorism Act, 1997, the learned trial Court has jurisdiction to supervise the investigation and to pass such an order.

4. Heard. We have gone through the order sheet of the learned Judge Anti-Terrorism Court containing impugned orders dated 22-2-2008, 29-2-2008 and 7-3-2008 attested copies of which have been placed on the file by the learned counsel for the petitioner. Order dated 7-3-2008 is relevant which is reproduced below: "As in the original F.I.R. offence under section 365-A, P.P.C., was mentioned which is a scheduled offence under the ATA, 1997, accordingly, firstly it was the duty of the relevant police officer who drafted F.I.R. to add offence under section 7(e) ATA which was not done. After that it was the duty of the I.O. to investigate the matter and to bring case before this Court even if no offence under section 365-A, P.P.C. was made out which was not done by the Investigating Officer. The Investigating Officer is directed to prepare the challan under section 365-A, P.P.C. and section 7(e)' ATA 1997 and submit the same before this Court. After submission under section 173, Cr.P.C./challan this Court under section 23 ATA shall decide as to whether offence under section 365-A, P.P.C. is made out or not. For waiting challan, to come up on 14-3-2008."

5. The learned Advocate-General, Punjab, who was present in Court in connection with some other case, has been called to assist in the matter. After having gone through the impugned orders, he has frankly conceded that the learned trial Court was not clothed with the authority to pass the impugned order whereby the learned trial Court has directed the police to submit challan against the accused under section 365-A, P.P.C. We have noted that the learned trial Court has travelled beyond its jurisdiction which was sole job of the Investigating Agency to submit a report under section 173, Cr.P.C. before the Court of competent jurisdiction having jurisdiction to try the case.

6. So far as contention of the learned counsel for the complainant that the learned trial Court has power to pass such an order under section 19 of, the Anti-Terrorism Act, 1997 is concerned, we have gone through the said provision of law which does not empower the learned trial Court to issue such type of a direction to the police to submit a challan under a certain provision of law. Learned counsel for the petitioner has rightly given reference to the order dated 24-10-2007 passed by a learned Division Bench of this Court in Writ Petition No.1078 of 2007 a copy of which has been placed on the file, whereby, a similar direction of the learned Special Court was set aside. The said case has been reported as Muhammad Azam v. Judge, Anti-Terrorism Court, Faisalabad and 6 others PLD 2008 Lahore

63. The afore-referred view was reiterated in yet another judgment of the learned Division Bench of this Court in Muhammad Yasir v. The State PLD 2008 Lah. 523, wherein, while giving reference to section 19(3) of the Anti-Terrorism Act, 1997 and Muhammad Azam's case (supra), it was observed that the learned Special Court constituted under the Anti-Terrorism Act, 1997, is not vested with the power to direct the Investigating Agency to submit challan after having incorporated the scheduled offence. To further fortify our view a reference in this regard is given to the case of Muhammad Nasir Cheema v. Mazhar Javaid and others PLD 2007 Supreme Court 31), wherein, at page, 33, the Hon'ble Supreme Court of Pakistan observed as under:- "

6. The only provision relating to the subject which is available in the Code of Criminal Procedure is section 173 which commands expeditious conclusion of the investigation and further ordains that on conclusion of every investigation, the concerned S.H.O. shall submit a report of the result thereof in the prescribed manner to the Magistrate competent to take cognizance under section 190, Cr.P.C. No power vests with any Court including a High Court to override the said legal command and to direct the S.H.O. either not to submit the said report (mentioned as challan in the Police Rules and also in the impugned order) or to submit the said report in a particular manner i.e. against only such persons as the Court desires or only with respect to such offences as the Court wishes...." (Emphasis supplied).

7. After having gone through the impugned order dated 7-3-2008 (quoted above) passed by the learned Judge Anti-Terrorism Court No.III, Lahore and after having given anxious considerations to the submissions made by the learned counsel for the petitioner, complainant and the learned Advocate General Punjab coupled with fortifying our view by the precedent case-law referred to above, this Court is of the considered view that the impugned order dated 7-3-2008 passed by the learned Judge Anti-Terrorism Court No.III, Lahore directing the Investigating Agency to submit challan under section 365-A, P.P.C. is not sustainable in the eye of law, therefore, Writ Petition No.7328 of 2008 is accepted and the impugned order is set aside.

8. Through Writ Petition No.4820 of 2008, petitioner has sought quashment of F.I.R. No. 862 of 2007 dated 26-12-2007, under section 365-A, P.P.C., Police Station Faisal Town, Lahore. We have been informed that the challan in this case has been submitted, therefore, keeping in view the dictum laid down by the Hon'ble Apex Court in Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276, Writ Petition No.4820 of 2008 is disposed of with the observation that the petitioner, if so advised, may approach the learned trial Court of competent jurisdiction for the redressal of his grievance at the appropriate stage through a proper petition as provided under the law, as per guidelines enunciated in the above judgment of Hon'ble Supreme Court of Pakistan. N.H.Q./K-67/L Order accordingly.