' ASIF SAEED KHAN KHOSA, J.---The petitioner is the complainant of and respondents Nos.1 to 3 are the accused persons in case F.I.R. No, 589 registered at Police Station Sadar, Jhang on 11-8-2003 in respect of an offence under section 365-A, P.P.C., read with section 34, P.P.C. According to the allegations levelled in the said F.I.R., the petitioner had been abducted for ransom by respondents Nos.1 to 3. After completion of the investigation a challan in respect of this case was submitted before the Anti-Terrorism. Court, Faisalabad but the jurisdiction of that Court to try this case was challenged by respondent No,1 herein before this Court through Criminal Revision No,1047 of 2003.
That revision petition was allowed by a Division Bench of this Court vide judgment dated 10-11-2003 declaring that the allegations being levelled by the prosecution in this case did not attract the definition of 'terrorism' as contained in section 6 of the Anti-Terrorism Act, 1997 and resultantly the record of this case was ordered to be transmitted to the Court of ordinary jurisdiction competent to try this case. The trial of this case was thereafter being held by a learned Additional Sessions Judge, Jhang and during the said trial the Anti-Terrorism (Second Amendment) Act, 2004 (Act II of 2005) was enacted and published through a Gazette Notification dated 11-1-2005. Through that amendment an offence of abduction or kidnapping for ransom was included in the Third Schedule appended with the Anti-Terrorism Act, 1997 making such an offence triable exclusively by an Anti- Terrorism Court constituted under the Anti-Terrorism Act, 1997. In view of this development the petitioner submitted an application before the Anti-Terrorism Court, Faisalabad on 4-4-2005 invoking jurisdiction of that Court under section 12 of the Anti-Terrorism Act, 1997 and seeking calling for the record of the present case from the Court of-the learned Additional Sessions Judge, Jhang so that this case could be tried by the Anti-Terrorism Court, Faisalabad. That application of the petitioner was, however, dismissed by the learned Judge, Anti-Terrorism Court, Faisalabad vide order dated 11-5-2005 which order has been assailed by the petitioner before this Court through the present writ petition.
2. We have heard the learned counsel for the petitioner, the learned counsel for respondents Nos. 1 and 3, the learned Advocate-General, Punjab and the learned Deputy Attorney-General appearing on behalf of the Federation of Pakistan and have perused the record of this case with their assistance . We may observe that we have been pleasantly surprised by the fact that all the learned counsel appearing for all the parties to this case, including the learned counsel for the private respondents, the learned Advocate-General, Punjab and the learned Deputy Attorney- General, have maintained before us in unison that after introduction of the Anti-Terrorism (Second Amendment) Act, 2004 (Act II of 2005)through Gazette Notification dated 11-1-2005 the case in hand has to be transferred to an Anti-Terrorism Court because now only such a Court constituted under the Anti-Terrorism Act, 1997 has the exclusive jurisdiction to try this case. They have further submitted in total agreement that as regards the sentence, if any, to be passed against any accused person found guilty in this case by the learned Judge, Anti-Terrorism Court, Faisalabad there is no dispute that such a sentence cannot be greater than, or of a kind different from, the sentence prescribed by the relevant law for the relevant offence at the time the said offence was committed.
3. We have found such unanimous stand taken by the parties to this case to be quite well-founded and legally correct. According to subsection (1) of section 12 of the Anti-Terrorism Act, 1997 an offence mentioned in the Third Schedule appended with the Anti-Terrorism Act, 1997 can be tried only by an Anti-Terrorism Court constituted under the said Act and no other Court has any jurisdiction in that regard. The Third Schedule appended with the Anti-Terrorism Act, 1997 not only mentions the offence of 'terrorism' but also mentions other offences which now, through the above mentioned amendment introduced on 11-1-2005, includes an offence of abduction or kidnapping for ransom. This unmistakably shows that an Anti-Terrorism Court can try not only an offence of 'terrorism' as defined in section 6 of the Anti-Terrorism Act, 1997 but it can also try any other offence which is declared by the law to be exclusively triable by such a Court. Through the above mentioned judgment dated 10-11-2003 passed in Criminal Revision No,1047 of 2003 a Division Bench of this Court had held that the allegations being levelled in this case by the prosecution did not attract the definition of 'terrorism' contained in section 6 of the Anti-Terrorism Act, 1997 and an offence under section 365-A, P.P.C. Was not included in the Third Schedule and, thus, an Anti- Terrorism Court could not try this case but now through the above mentioned amendment in the law the offence involved in this case, i,e, an offence under section 365-A, P.P.C. Has expressly been made triable exclusively by an Anti-Terrorism Court. In view of this change in the relevant law the case in hand is now triable exclusively by an Anti-Terrorism Court, and, thus, the same has to be transferred from the Court of the learned Additional Sessions Judge, Jhang to the relevant Anti- terrorism Court which happens to be the Anti-Terrorism Court, Faisalabad. The spirit of the provisions of subsection (3) of section 12 of the Anti-Terrorism Act, 1997 also manifests that in view of this changed legal position the relevant cases pending before the Courts of ordinary jurisdiction are now to be made over and transferred to Anti-Terrorism Courts. We have found that the learned Judge, Anti-Terrorism Court, Faisalabad was not justified in dismissing the petitioner's application seeking such a transfer of the caseand that the view expressed by the learned Judge, Anti- Terrorism Court, Faisalabad in his impugned order dated 11-5-2005 to the effect that the Anti- Terrorism (Second Amendment) Act, 2004 (Act II of 2005) did not have retrospective effect was a view which was not legally correct. A change of forum of trial by operation of law is ordinarily applicable to all pending cases and restore electivity or otherwise of application of such law is not a relevant consideration in that regard. A reference in this respect may be made by us to the cases Liaqat Parvez Khan v. Government of the Punjab through Home Secretary and 2 others PLD 1992 Lah. 517 (FB) and Muhammad Mushtaq v. Muhammad Ashiq and others PLD 2002 SC 841.
4. For what has been discussed above this writ petition is allowed, the impugned order dated 11-5- 2005 passed by the learned Judge, Anti-Terrorism Court, Faisalabad is declared to be without lawful authority and of no legal effect and the same is set aside and the above mentioned criminal case instituted by the present petitioner is hereby transferred for its trial to the Anti-Terrorism Court, Faisalabad. There shall be no order as to costs.
5. Before parting with this judgment we may clarify that keeping in view the provisions of clause (1) of Article 12 of the Constitution of the Islamic Republic of Pakistan, 1973 as well as of section 38 of the Anti-Terrorism Act, 1997 the learned Judge, Anti-Terrorism Court, Faisalabad shall see to it that in case of conviction of any accused person in the case in hand the punishment to be awarded to such convict shall not be greater than, or of a kind different from, the punishment prescribed by the law for the relevant offence at the time the offence was committed. It may further be clarified that the learned Judge, Anti-Terrorism Court, Faisalabad shall proceed with the trial of this case from the stage at which it was pending immediately before transfer of this case by this Court through the present judgment and in this regard he shall be guided by the provisions of subsection (2) of section 28 of the Anti-Terrorism Act, 1997.