' SH. HAKIM ALI, J.--- On 16-10-2005, upon the statement of one Muhammad Mushtaq F.I.R. No,197 of 2005 was lodged with Police Station Shahar Farid, under section 364/34 of the P.P.C. About an occurrence. The victim of that case namely Farrah Mushtaq, aged about 5/6 years was stated to be allegedly abducted and subjected to Zina-bilJabr and after the commission of this heinous offence put to death by the accused. The Investigating Officer, after investigation of the case forwarded report under section 173 of the Cr.P.C., to the learned Additional Sessions Judge, Chishtian under sections 364-A/302/34 of the P.P.C. On 28-11-2005, against Mustansar Hussain and others. During the trial of that case, on 26-5-2006, learned Additional Sessions Judge, came to the conclusion upon an application of the informant that this was a case where element of the nature of terrorism was involved so it was to be tried by the learned Judge of the Anti-Terrorism Court.
After rendering these findings, learned Additional Sessions Judge forwarded the file to the learned Sessions Judge, Bahawalnagar for its further onward transmission to the learned Anti-Terrorism Court, Bahawalpur but the learned Sessions Judge on. 31-5-2006, returned the file to the above mentioned learned Additional Sessions Judge, with the following order:-- "After judicially determining that the criminal act involved 'in this case amounted to terrorism and thus, the provisions of Anti-Terrorism Act were attracted, no useful purpose could have been served by sending the file to this Court especially in the circumstances when the charge already stands framed in the case and statements of five P.Ws. Had been recorded. Therefore, file be returned to the referring Court for proceeding in accordance with law where file shall be put up on 3-6-2006."
2. Mustansar Hussain, one of the accused before the passing of above mentioned order filed a Writ Petition No,1218 of 2006 (Mustansar Hussain v. State and others) challenging the legality of order dated 26-5-2006 passed by learned Additional Sessions Judge, in this. Court but that writ petition was ultimately withdrawn by him on 6-6-2006. After the return of file from the learned Sessions Judge, trial was commenced, again by learned Additional Sessions Judge, Chishtian. Upon this complainant filed another petition before learned Additional Sessions Judge that after holding the case to be a case of terrorist activity, he was not empowered to try this case again. This petition was disposed of by learned Additional Sessions Judge on 8-7-2006, with the remarks that the complainant might move the Honourable Lahore High Court, Bahawalpur Bench. Another order was also passed by the learned Additional Sessions Judge 26-5-2006, by which Mustansar Hussain, accused was declared juvenile being below the age of 18 years, at the time of alleged occurrence.
It was decided by learned Additional Sessions Judge that trial of the case to the extent of Mustansar Hussain accused would be conducted under the Juvenile Justice System Ordinance, 2000. The order dated 26-5-2006 declaring Mustansar Hussain to be a juvenile has also been challenged through Criminal Revision No,173 of 2006 by Muhammad Mushtaq complainant. So both these criminal revisions bearing No,164 of 2006 and No,173 of 2006 are being disposed of by this single order.
3. Learned counsel appearing on, behalf of Muhammad Mushtaq petitioner submits that learned Additional Sessions Judge, having once decided that the case was to be taken cognizance of and tried by the learned Judge, Anti-Terrorism Court, the said Court thereafter could not retry it and pass any other order as it had become functus officio. The aforesaid, order, dated 26-5-2006, was never set aside by any competent forum. Therefore, learned Additional Sessions Judge could not review, recall or reverse its own order and could not restart the trial of the case afresh. Order, dated 31-5-2006, passed by the learned Sessions Judge was therefore, without jurisdiction and power, as the learned Sessions Judge was not an appellate or revisional authority of learned Additional Sessions Judge and was not competent to declare the order, dated 26-5-2006 passed by learned Additional Sessions Judge to be illegal and unlawful. Accordingly, the file of the case may be ordered to be entrusted to the learned Judge Anti-Terrorism Court.
4. Conversely, learned counsel appearing on behalf of respondent submits that criminal revisions before this Court are not competent because of barring provision of Article 203-DD of the Constitution of the Islamic Republic of Pakistan, 1973, which has provided that a revision in case of offence committed under Hudood Ordinance shall be filed before learned Federal Shariat Court.
According to the learned counsel, both these revisions may be dismissed because these revisions are not competent in this Court. Arguing the case further, learned counsel states that Mustansar Hussain, accused having been declared juvenile, the proceedings against that accused are to be commenced by Juvenile Court, therefore, proceedings before learned Additional Sessions Judge are not without jurisdiction. Learned counsel further submits that statement of five witnesses have already been recorded therefore, no useful purpose would be served if the case is transmitted to the learned Judge Anti-Terrorism Court.
5. Learned A.A.-G. Submits that learned. Additional Sessions Judge after holding, that he had got no jurisdiction to try this case, and the case 'was exclusively triable by learned Judge Anti-Terrorism Court through his own order, dated 26-5-2006, should not have exercised his power of trying the case again as the aforesaid order to his extent has become final and he had lost jurisdiction to proceed further with the aforesaid case. It has further been submitted by the learned A.A.-G. That the learned Sessions Judge had also got no power or jurisdiction to entrust back the case to the learned Additional Sessions Judge, Chishtian through his order, dated 31-5-2006 as the case had come out from the jurisdiction of learned Additional Sessions Judge.
6. After considering the lengthy arguments of all the learned counsel and from the perusal of the record, I have come to the conclusion that after passing order, dated 26-5-2006, holding it to be of a terrorist nature and cognizable by learned Judge Anti-Terrorism Court, learned Additional.
Sessions Judge could not review, recall or set aside his own order. Even if learned Sessions Judge could not remit the case in such an event to the learned Additional Sessions Judge through the impugned order dated 31-5-2006. The right way for the learned Sessions Judge in the facts and circumstances of the case was to refer the matter to this Court for appropriate orders in the case so that the case could be transmitted to the learned Anti-Terrorism Court, but the learned Sessions Judge committed mistake while entrusting again the same case to the aforementioned learned Additional Sessions Judge, who had already expressed opinion through his order and had become functus officio. The objection of Mr. Mumtaz Hussain Bazmi, learned counsel for the respondent that criminal revision, should have been filed before the learned Federal Shariat Court under Article 203-DD of the Constitution of Islamic Republic of Pakistan, 1973 and this Court had got no jurisdiction and this matter could not be entertained by this Court due to bar of the aforementioned Articles of the Constitution is fallacious on the face of it because in the case relating to the enforcement of Hudood cases no doubt, learned Federal Shariat Court has got exclusively jurisdiction to call for and examine the record of a case decided by any criminal Court, whereas in the present case, it was a case of terrorist nature, for which Anti-Terrorism Court had got exclusive jurisdiction to try'it. For this reason this Court has got jurisdiction to entertain it. It may be worth noting here that the order, dated 26-5-2006 was not being challenged by any party to the proceedings in the instant criminal revision. In fact, the order, dated 26-5-2006 was being prayed to be implemented by transmitting the case file to Anti-Terrorism Court. 'The order dated 26-5-2006 has not been challengea in this. Court up till now, which had decided the nature of the case as triable by learned Anti-Terrorism Court. It is the order, dated 31-5-2006, passed by learned Sessions Judge which has been challenged in this Court which is an administrative order which can competently be challenged in this Court through a writ petition. In the above peculiar circumstances of the case, this Court has also got jurisdiction to look into the matter, as the case cannot be allowed to be proceeded against without jurisdiction by a learned Additional Sessions Judge after .26-5-2006 'when he had himself transmitted it to the learned Anti-Terrorism Court. It iS pertinent to point out here that order, dated 26-5,2006 was challenged by one of the accused Mustansar %Hussain, in this Court through Writ Petition No,1218, of .2006 but withdrawal of that writ petition had confirmed the legality of that order i.e. 26-5-2006. Accordingly, there is no need of directing the petitioner to file criminal revision before learned Federal Shariat Court as the matter in question relates to the transfer of the case from learned Additional Sessions Judge to learned Judge, Anti-Terrorism Court.
7. Therefore, I direct learned Additional Sessions Judge to transmit the file of the case to the learned Judge, Anti-Terrorism Court Bahawalpur who shall entertain it and shall take cognizance of the case and to proceed with it in accordance with law.
8. However, any party may move to the learned Judge, Anti-Terrorism Court to determine the nature of the case if during the proceeding, any party is not satisfied with the findings of learned Additional Sessions Judge to reconsider it if from evidence any such occasion arises. In that an event, learned Judge, Anti-Terrorism Court shall be free to determine the nature of the case in accordance with the dictum laid down by Honourable Supreme Court of ,Pakistan in Farooq Ahmad v. Federation of Pakistan through Secretary law and Parliamentary Affairs, Government of Pakistan NLR 2005 Crl.
640.
9. As regard the findings declaring Mustansar Hussain to be a juvenile that shall be also open to the learned Anti-Terrorism Court to determine and try that case in that jurisdiction if it finds so. With