' HASNAT AHMAD KHAN, J.--- Through this single order we intend to dispose of two writ petitions bearing Writ Petition No,804 of 2007 and Writ Petition No,1686 of 2007, as the same have stemmed from one and the same F.I.R.
2. Briefly the facts of the case are that criminal proceedings were triggered off at the instance of Bashir Ahmad complainant with the allegations that on 6-2-2007 at 12-30 p.m. 13 known and two unknown gun-toting accused along with a club/Sota wielding accused launched an assault upon the complainant party. As a result of said attack Shahid Mahmood received a single fire-arm injury.
An effort was, statedly, made to rush him (Shahid Mehmood) to the hospital but he died on his way to the hospital. The occurrence took place at Chicha Watni Bus Stand, Burewala. The motivating factor behind the occurrence was stated to be an altercation, which had taken place between the members of the staff of a bus owned by a transporter namely Muhammad Ahmad on the one side and Abdul Rashid alias Somi etc. Co-accused on the other side, on the allotment of time for running the buses. According to the complainant, he had Visited said bus-stand to approach afore-mentioned Muhammad Ahmad, transporter for getting his son, Shahid Mehmood (deceased) employed as a conductor. The accused party, according to the complainant, suspecting that the complainant and his son had reached to support said Muhammad Ahmad, their opponent, started reckless firing, which caused an injury to Shahid Mehmood, who kicked the bucket as a result of said injury. On the basis of allegation of causing panic in the public, offence under section 7, A.T.A. Was also invoked by the police in the F.I.R. One of the accused namely Fayyaz Ahmad petitioner filed Writ Petition No,804 of 2007, challenging the invocation of section 7, Anti- Terrorism Act, 1997. The said writ petition was admitted to regular hearing by this Court vide order, dated 20-2-2007. However, during the pendency of the said writ petition, report under section 173, Cr.P.C. Was forwarded to the Public Prosecutor, Anti-Terrorism Court-1, who after holding that facts of the case did not attract the provisions of section 7 Anti-Terrorism Act, 1997 directed the Station House Officer to submit the challan to the District Prosecutor after deleting the offence of section 7 of said Act. The said order was challenged by Bashir Ahtnad complainant before this Court vide Writ Petition No,1686 of 2007.
3. In support of Writ Petition No,804 of 2007, the learned counsel appearing on behalf of Fayyaz Ahmad writ petitioner/accused has contended that in the case in hand, even according to the F.I.R.
Itself, the object, design or purpose behind the actions of the accused party was not to create terror but only to satisfy a private vendetta. It has, thus, been maintained by him that section 7 of the Anti-Terrorism Act, 1997 was wrongly invoked in the F.I.R. And therefore, the Public Prosecutor, Anti-Terrorism Court-1 was quite justified to order for deletion of section 7 of Anti-Terrorism Act, 1997. He has further submitted that under the provisions of the Punjab Criminal Prosecution Service (Constitution, Function and Powers) Act, 2006, the Public Prosecutor was fully authorized to pass the impugned order, dated 26-3-2007, challenged vide Writ Petition No,1686 of 2007. While explaining his contention, he has referred to section 9 of the said Act, which reads as under:-- Conduct of Prosecution.--- (1) The Prosecutors shall be responsible for the conduct of prosecution on behalf of the Government.
(2) The Prosecutor-general or if so authorized by him, an Additional Prosecutor-General shall distribute work to the Prosecutors in the Supreme Court, the High Court, the Federal Shariat Court or a Special Court established under any law for the time being in force.
(3) A District Public Prosecutor shall distribute work to the Prosecutors with respect of the Courts of Session and Courts of Magistrates within a District.
(4) A police report under section 173 of the Code including a report of cancellation of the first information report or a request for discharge of a suspect or an accused shall be submitted to a Court through the Prosecutor appointed under this Act.
(5) The Prosecutor shall scrutinize the report or the request and may---
(a) return the same within three days to the officer incharge of police station or Investigating Officer, as the case may be, if he finds the same to be defective, for removal of such defects as may be identified by him; or
(b) if it is fit for submission, file it before the Court of competent jurisdiction.
(6) On receipt of an interim police report under section 173 of the Code, the Prosecutor shall--
(a) examine the reasons assigned for the delay in the completion of investigation and if he considers the reasons compelling request the Court for the postponement of trial and in case investigation is not completed within reasonable time, request the Court for commencement of trial; and
(b) in cases where reasons assigned for delay in the completion of investigation are not compelling, request the Court for commencement of trial on the basis of the evidence available on record.
(7) A Prosecutor may submit to the Court results of his scrutiny in writing as to the available evidence and applicability of offences against all or any of the accused as per facts and circumstances of the case."
4. In support of Writ Petition No,1686 of 2007, learned counsel for Bashir Ahmad complainant has contended that the order passed by the Public Prosecutor is without jurisdiction. Adds that the Public Prosecutor could not assume and abdicate the function and jurisdiction of the learned Anti- Terrorism Court; and therefore, direction passed by him is not sustainable.
5. After hearing the parties, we have concluded that section 9 of the (ibid) Act did not authorize the Public Prosecutor to delete the offence under section 7,A.T.A. Under subsection (5)(a) of section 9 the Public Prosecutor has the authority to scrutinize the report under section 173, Cr.P.C. And in case of finding the same to be defective, he can return the same, within three days, to the Officer Incharge of Police Station or Investigating Officer for the removal of such defects and under subsection (5)(b) of said section, after finding report under section 173, Cr.P.C. Fit for submission, the Public Prosecutor is duty bound to file the same before the Court of competent jurisdiction. A perusal of subsection (7) of section 9 of said Act indicates that the Prosecutor has the authority to submit to the Court the result of his scrutiny in writing as to the available evidence and applicability of the offences against all or any of the accused. A further perusal of section 10 of the said Act, which provides the powers of the prosecutor, also makes it clear that the Public Prosecutor has no authority to delete the offence himself. To put in a nutshell we have concluded that the Public Prosecutor Anti-Terrorism Court No,1 had no authority to assume and abdicate the function, authority and jurisdiction of the trial Court to decide the question of jurisdiction or applicability of the relevant section, therefore, in this case while passing the impugned direction, dated 26-3-2007, the Public Prosecutor, Anti-Terrorism Court No,1, Multan surely travelled beyond his jurisdiction and authority and committed a grave illegality. Therefore, the said direction being without jurisdiction and legal authority is hereby quashed and set aside.
6. Coming to Writ Petition No,804 of 2007 filed by Fayyaz Ahmad petitioner, we are constrained to hold that initially it is the exclusive prerogative and function of the learned trial Court to decide the question of jurisdiction and applicability of offence under section 7 Anti-Terrorism Act of 1997. The said question has not been attended to and dealt with by the learned trial Court i,e, Judge Anti- Terrorism Court No, 1 . Rather the report under section 173, Cr.P.C. Was returned to the ordinary Court by the Public Prosecutor of the said Court himself. In the preceding paragraph of this judgment we have already held that order/direction dated 26-3-2007 passed by the said Prosecutor was without any legal authority. Thus, Writ petition No,804 of 2007 is hereby dismissed. Said order/direction passed by the aforementioned Public Prosecutor would be treated by the Judge Anti-Terrorism Court No,1 as a report under subsection (7) of the section 9 of (ibid) Act.
7. In view of the decision of Writ Petition No,1686 of 2007, the Investigating Officer is directed to withdraw the challan from the Court of learned Sessions Judge within fifteen days and submit the same before the Court of learned Judge, Anti-Terrorism Court No,1, who on the receipt of challan would consider the report, dated 26-3-2007 submitted by the Public Prosecutor and decide the question of his jurisdiction as well as the applicability of section 7 of the Anti-Terrorism Act, 1997, within thirty days of receipt of this order, in the light of the judgments of the Honourable Supreme Court of Pakistan rendered in the cases of Mirza Shaukat Baig and others v. Shahid Jamil and others PLD 2005 SC 530 and Muhabbat Ali and another v. The State 2007 SCM R 142.