The petitioner, being one of the accused in a private complaint filed by Muhammad Ibrahim Respondent No, 2 under Sections 365-A, 337-A(i), 506(ii), 148, 149 PPC in respect of an occurrence taking place within the territorial limits of P.S Jam Pur, seeks quashment of order dated 20.4.2006 passed by learned Additional Sessions Judge whereby the said complaint was ordered to be transferred to the Court of Anti-Terrorism Court established under Anti Terrorism Act, 1997.
2. The facts in brief are that Muhammad Ibrahim Respondent No, 2 filed a private complaint before the Ilaqa Magistrate, Jam, pur in terms of Section 190 Cr.P.C. and the learned Ilaqa Magistrate sent the same to the learned District & Sessions Judge, Rajan pur who onwards entrusted the said complaint to the learned Additional Sessions Judge and the learned Additional Sessions Judge after recording summary evidence holding that prima facie complaint was though under Section 365-A PPC yet as from the evidence element of terror or harassment created in public within the meanings of Section 6 and & of the Anti Terrorism Act, 1997 was not made out the same was triable by the Court of Sessions as an ordinary Court, summoned the accused to face trial. However, the petitioner and co-accused themselves invited the trouble by making an application to the learned Additional Sessions Judge in terms of Section 265-K Cr.P.C. seeking their acquittal on the ground that as the offence under Section 365-A PPC was exclusively triable by Anti Terrorism Court and the learned Additional Sessions Judge had no jurisdiction to try the said complaint, therefore, all the accused be acquitted. This application was contested and the learned Additional Sessions Judge vide order dated 20.4.2006 not only dismissed the said application of the petitioner and his co- accused but also held that as the offence under Section 365-A PPC was exclusively triable by the Special Court established under Anti Terrorism Act, 1997 and following the law declared by this Court in the case "Rana Abdul Ghaffar versus Abdul Shakoor and 3 others" (PLD 2006 Lahore 64) directed the transfer of the said complaint to the Anti Terrorism Court. This order dated 20.4.2006 passed by the learned Additional Sessions Judge; Jam pur has been challenged through the instant Constitutional Petition.
3. It is argued by learned counsel for the petitioner that as the complaint from the very beginning carried Section 365-A PPC, hence the same was exclusively triable by Anti Terrorism Court and all the proceedings from institution of the compliant till date were corum non judice and for that reason the petitioner was entitled to be acquitted or in the alternative as the element of Section 365-A PPC viz. abduction for ransom was not established from bare reading of the complaint as well as challan case FIR No, 84/2004 registered with P.S. Jam Pur, hence, mere addition of Section 365-A PPC at a letter stage through the complaint could not make the case triable by the Anti Terrorism Court, established under Anti Terrorism Act, 1997, as such they were entitled to be acquitted even by the learned Additional Sessions Judge.
4. The above-mentioned arguments of learned counsel for the petitioner have been considered in the light of Sections 6 & 7 of the Anti Terrorism Act, 1997 read with Schedule III (Part-4) of the above Act.
5. There is no dispute to the legal proposition that in terms of Part-4 to the third schedule of Anti Terrorism Act, 1997 offence covering abduction or kidnapping for ransom is exclusively triable by Anti Terrorism Court. To this extent there is a considerable force in the contention of learned counsel for the petitioner that even the institution of private complaint before the Magistrate and its entrustment to the to learned. Additional Sessions Judge and all the subsequent proceedings taken in the said complaint till passing of the impugned order were without lawful authority being corum non judice but there is no force in the contention of the learned counsel for the petitioner that in such a situation the petitioner and his co-accused be acquitted, because acquittal is possible only after a regular trial by a Court of competent jurisdiction.
6. However, so far as the second leg of argument of learned counsel for the petitioner is concerned that from bare reading of complaint the offence of abduction for ransom is not made out and this Court should declare the petitioner as acquitted, has no legal force in view of the law declared by the Hon'ble Supreme Court of Pakistan in the case "Mirza Shaukat Baig versus Shahid Jamil, etc."
(N.L.R. 2005 Criminal 561). The relevant portion is reproduced below:-- "Art. 199. Question whether act of terrorism under S. 6, Anti Terrorism Act, 1997 was committed by accused with mens rea (guilty mind) cannot be determined by High Court in exercise of its jurisdiction under Art. 199."
For what has been declared above by the Hon'ble Supreme Court of Pakistan, this Court has therefore, no jurisdiction to record any findings about guilt or innocence of the petitioner and his co-accused at this stage and it is exclusively the jurisdiction of the Anti Terrorism Court to decide after recording the evidence.
7. Before parting with this order, I would like to pin down the procedural requirement of filing complaints before the Special Court. As mentioned above complaint in this case was directly filed before the Magistrate in Terms of Section 190. Cr.P.C. as a private complaint in an ordinary case but as held by the Hon'ble Supreme Court in the case "Riffat Hayat versus Judge Special Court for Suppression of Terrorist Activities, Lahore and another" (1994 S.C.M.R. 2177) Special Court are competent to entertain private complaint directly and issue process to the accused after holding preliminary inquiry in the case and as such adoption of procedure in terms of Section 190 Cr.P.C. viz. filing of complaint before Magistrate in a case exclusively triable by Court of Sessions and then sending the same by the Magistrate to the Sessions Judge for trial, is therefore, not mandatory requirement for filing private complaint before the Special Court, therefore, in this case even the filing of complaint before the Magistrate was neither legal nor its sending to the Court of Sessions was the legal requirement. Hence, all the proceedings conducted by the Magistrate and the learned Additional Sessions Judge in the complaint filed by Respondent NO. 2 Muhammad Ibrahim containing allegation of abduction for ransom was an exercise in futility, however, the said procedural defect is neither fatal nor on the basis of said defect the petitioner could be acquitted in terms of Section 265-K Cr.P.C.
8. Resultantly, the order dated 20.4.2006 passed by learned Additional Sessions Judge sending the case to the Anti Terrorism Court for trial is neither without lawful authority nor suffers from any jurisdictional defect. As held by the Hon'ble Supreme Court of Pakistan in Shaukat Mirza's case (N.L.R. 2005 Criminal 561) cited above, Anti Terrorism Court in terms of Section 23 of the Anti Terrorism Act, 1997 may still refuse to try the complaint of the respondent and transfer the same for trial in the Court of competent jurisdiction if after recording evidence the Anti Terrorism Court is of the opinion that offence was not a scheduled offence. The petitioners therefore, still have a remedy of approaching the Anti Terrorism Court by moving an application under Section 23 of the Anti.
Terrorism Act, 1997 and the said Court may pass any order in the light of the law declared by Hon'ble Supreme Court in the above referred Shaukat Mirza's ease (N.L.R. 2005 Criminal 561). This writ petition, however, has no force and is accordingly dismissed.