' SALIM KHAN, J.---The facts necessary for the disposal of this writ petition are that Abdul Rehman, petitioner, lodged F.I.R. No.490 on 10-7-2604 under section 17(2) and (4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, section 13 of the Arms. Ordinance and sections 148/149 of the Pakistan Penal Code, 1860 read with section 7 of the Anti-Terrorism Act, 1997, in Police Station Chamkani of District Peshawar. It was alleged in the report that on the scene of occurrence Abdur Rehman son of Syed Mahmood Shah aged about 16/17 years reported in injured condition that on the night of occurrence, the complainant along with his father and other inmates of the house were sleeping in the residential room of the house when someone from outside knocked at the door of the room, on which the complainant and his father came out. They saw four (4) persons duly armed with fire-arms, who fired at them with the intention to commit their murder: The father of the complainant died on the spot while the complainant received injury on his right arm. The complainant stated that they had no enmity with anybody and did not charge any person at that time and submitted that he would charge the culprits on receiving information.
2. Ghazan, Amjad and Ulas Khan, respondents Nos.1 to 3 herein, were later on charged, who submitted Applications Nos.75 of 2004, ATC(P) No.76 of 2004 ATC(P) and No.77 of 2004/ATC(P) for bail to the Special Judge Anti-Terrorism Court, Peshawar Division Peshawar. He, vide his order dated 11-10-2004, after hearing the arguments, came to the conculsion that the case in hand was not triable by that Court, rather it fell within the exclusive jurisdiction of the Sessions Judge Peshawar. He disposed of the said applications in the above terms with further observation that the petitioner may seek his remedy in the proper forum, if so advised. Feeling aggrieved of the said order, the complainant Abdur Rehman filed the present writ petition in this Court on the 'grounds mentioned therein in detail.
3. We heard the arguments of the learned counsel for the petitioner, the learned Deputy Advocate- General for the State on notice and perused the available record.
4. The main contention of the learned counsel for the petitioner was that Special Judge Anti- Terrorism Court did not have the power to declare at the, premature stage that the case of the petitioner against accused-respondents Nos.1 to 3 was not triable by the Special Judge Anti- Terrorism Court and it fell within the exclusive jurisdiction of the Sessions Judge Peshawar. He referred to section 23 of the Anti- Terrorism Act, 1997, regarding power of the Special Court Anti- Terrorism Court to transfer cases to regular Courts. The said section provides that where, after taking cognizance of an offence, an 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. The learned counsel for the petitioner was of the view that it was after taking cognizance of an offence only, and not before that, that an Anti-Terrorism Court could transfer the case as such. ##TSE##
5. On the other hand, the learned Deputy Advocate-General referred to the provisions of the North- West Frontier Province Prosecution Service (Constitution, Functions and Powers) Ordinance, 2004 and submitted that the learned Special Judge Anti-Terrorism Court had relied on the opinion of the Public Prosecutor and had reached the conclusion that the case was not triable by that Court. He further submitted that the provisions of the said Ordinance authorized the Public Prosecutor to declare whether a case was or was not triable by the Special Judge Anti-Terrorism Court and therefore, supported the impugned order.
6. In order to fully appreciate the legal position, it is necessary to discuss relevant law. Subsection
(1) of section 21D of the Anti-Terrorism Act, 1997 (hereinafter referred to as the Act) provides that notwithstanding the provisions of sections 439, 491, 496, 497, 498, 498-A and 561-A of the Code no Court, other than an Anti-Terrorism Court; a High Court or the Supreme Court of Pakistan, shall have the power or jurisdiction to grant bail to or otherwise release an accused person in a case triable by an Anti-Terrorism Court. Section 21G of the Act provides that all offences under the Act shall be tried by the Anti-Terrorism Court established under the Act. Subsection (1) of section 12 of the Act is regarding Territorial jurisdiction of the different Anti-Terrorism Courts in the Province.
7. The effect of sections 21D and 21G of the Act referred to above is that all the offences not under the said Act shall not be tried by the Anti-Terrorism Court established under the Act and that jurisdiction of the regular Courts established under the Code of Criminal Procedure, 1898, shall not stand excluded by virtue of the above-referred section 21D of the Act in relation to cases not triable by the Anti-Terrorism Court. The words "tried" and "triable" to the trial of cases and the powers for bail matter have been made conditional on the powers of trial.
8. Subsection (1) of section 6 of the Act defines "Terrorism" which means the use or threat of action where the action falls, within the meaning of subsection (2), and the use or threat is (i) designed to coerce and intimidate or overawe the Government or the public or a section of the public or community or sect, or create a sense of fear or insecurity in society; or (ii) made for the purpose of advancing a religious, sectarian or ethnic cause. The categories of action referred to above are mentioned in subsection (2) of section 6 of the Act. The next section 7 of the Act provides punishment for the acts of terrorism under section 6 thereof.
9. In the light of above sections, it becomes clear that the actions and acts of terrorism shall be punishable under section 7 of the Act when it is proved that the use or threat of action falls within the category as mentioned in subsection (2) of section 6 of the Act and is either designed or made as provided in the mentioned subsection (1). An action or an act of terrorism shall neither be triable nor punishable under the Act if it does not fall under the provisions of subsection (2) and one of the two conditions mentioned above, is not available with regard to the said action.
10. The overall effect of section 2(q) section 4, section.5 and section 9(4) of the North-West Frontier Province Prosecution Service (Constitution, Functions and Powers) Ordinance, 2004, which are regarding the powers and functions of the Public Prosecutor, is that the Public Prosecutor has the pivotal role regarding investigation and prosecution of criminal cases which are assigned to him.
Such a Public Prosecutor may, with the consent of the Court, before the judgment is pronounced, withdraw from the prosecutor of any person either generally or in respect of any one of more of the offences for which he is tried.
11. The word "cognizance" occurs in different laws and also in sections 190 and 204, Cr.P.C. For issuance of a notice, summon or warrant. Under section 204, Cr.P.C., a Court takes cognizance of an offence for forming the opinion that there is sufficient ground for proceeding. Under section 190, Cr.P.C., a Magistrate takes cognizance of any Offence, irrespective of the fact, whether he will conduct the case by himself or will send it to the Court of Session of trial. A Court of Session takes cognizance of any offence as a Court of original jurisdiction only when the case has been sent to it under section 190(2), Cr.P.C. Recording of evidence or conducting trial after taking cognizance are not the necessary conditions for taking such cognizance. A Court takes cognizance of a case when it applies its mind to the facts of the case and the relevant law. It can be done at any stage because cognizance in its general meaning means identification, ascertainment of, and getting knowledge about, the facts and relevant law of the case. In this sense of the word the learned Special Judge Anti-Terrorism Court took the cognizance of the case when the Public Prosecutor, who is incharge of the prosecution and is the guide to the Investigating Officer, brought it to his notice that the case was not triable by that Court, and he reached to the same conclusion by applying his mind.
12. We, therefore, see no defect in the impugned order as there is made no case for interference with the same on any ground. Resultantly, the present writ petition is dismissed in limine.