' MIAN MUHAMMAD NAJUM-UZ-ZAMAN, J.---This order will dispose of two petitions i,e, one filed by petitioner Muhammad Azam (W.P.No,1078 of 2007) and the other filed by Iftikhar Khan, petitioner (W.P.No,616 of 2007), together (since questions of law and facts in both the said petitions are the same) challenging the order dated 10-1-2007 passed by learned Judge, Anti-Terrorism Court, Faisalabad. The learned Special Judge, while entertaining application under section 12 of the Anti- Terrorism Act, 1997 filed by the complainant, has directed the investigating agency that since, prima facie, in the circumstances of the case, provisions of section 365-A P.P.C., are attracted, the said offence is exclusively triable by special Court, the challan be submitted under section 365-A P.P.C.
2. Brief facts of the case as narrated in the F.1.R. Lodged by Muhammad Yaqoob petitioner are that on 30-11-2006 at 5-00 p.m., he along with Sher Khan and Liaquat Khan was present at his Dera, Chah Ahamd Wala when Hayat Khan, Ramzan, Iftikhar and two unknown accused came there on a white colour car and a land cruiser. They inquired about Rajab Ali, uncle of the complainant, who was not present so they went back. Statedly, on 1-12-2006 the same accused again came to the said Dera at about 11-00 a.m., when Rajab Ali, Sher Khan and Liaquat Ali were also present there.
The accused asked Rajab Ali to accompany them to Mundi Shah Jewna in connection with some urgent piece of work. As the accused were known to him, so Rajab Ali accompanied them while sitting in the land cruiser which was being driven by Iftikhar accused. Rajab Ali did not return till 3- 12-2006 so the complainant along with Sher Khan went to Mundi Shah Jewna to inquire about him where Iftikhar accused met them and demanded rupees one lac for the release of Rajab Ali.
Allegedly Iftikhar accused told them that Rajab Ali had been sent with Hayat Khan etc. And without recovering the money even the bones of Rajab Ali would not be returned. On hearing this, the complainant and his companions came back Statedly, thereafter, Hayat Khan etc. Accused made many calls on the mobile phone of complainant and demanded rupees one lac. According to complainant, abductee owed Rs,40,000.00 to the accused but they were demanding rupees one lac for his release.
3. During the investigation, it transpired that only section 365, P.P.C. Is made out from the facts ,and circumstances of the case, thus the investigation agency deleted section 365-A, P P.C. Challenging the findings of investigating agency, application under section 12 of the Anti-Terrorism Act, 1997 was filed before the trial Court by the complainant. The trial Court passed the impugned order directing the investigating agency to submit challan under section 365-A, P.P.C. Hence this petition.
4. After hearing the learned counsel for the parties and perusing the record, we have observed that though application under section 12 of the Anti-Terrorism Act, 1997 was filed before the trial Court by the complainant, but it seems that the learned trial Court while exercising jurisdiction under section 19(3) of the abide Act has erroneously passed the impugned order. The relevant portion of section 19 read as under:- "Procedure and powers of (Anti-Terrorism Court- ..... -
(1) .....................................................................................
(2) .....................................................................................
(3) The Anti-Terrorism Court may directly take cognizance of a case triable by such Court without the case being sent to it under section 190 of the Code."
Bare perusal of section 19(3) of A.T.A., 1997 reveals that the Special Court can directly take cognizance of a case triable by such Court without the case being sent to it by the Magistrate as required under section 190 of the Code. The purpose of this section is to by-pass the said procedure provided under the Criminal Procedure Code, according to which, at the first instance, cliallait/repoh under section 173, Ct P.C. Is submitted before the concerned Magistrate who, under section 190 of the Criminal. Procedure Code, after examining the facts of the case, refers the matter to the Court of competent jurisdiction, if the same is not triable by him but through this special law, (i,e, Anti-Terrorism Act, 1997) the Special Courts constituted under the said Act have been given the jurisdiction to take cognizance of the matter directly when the matter is placed before them either through police challan or by way of private complaint disclosing the commission of offence falling within the ambit of the ibid Act. The jurisdiction given to the special Court by virtue of section 19(3) of the ibid Act does not mean that the Special Judge has the authority qua fishing out the cases from different police stations and directing the agency to submit challan after incorporating scheduled offences as the facts of the case disclose the commission of the said offence. We have also observed that such type of orders were also passed by Special Judges on reading the news item in the newspapers. This kind of suo motu authority or jurisdiction is not available to the Special Court and thus the impugned order passed by Special Judge Anti-Terrorism Court, Faisalabad, is not sustainable.
If during the investigation of the case, police has formed the opinion that only section 365, P.P.C., is made out, then the procedure to be adopted by the police is to submit the challan/report under section 173, Cr.P.C., before the Court of ordinary jurisdiction. The said Court after passing the record and taking cognizance of the matter, if forms the opinion that the data available on the record is sufficient to attract the provision of scheduled offence, then the Court is competent to refer the matter to the Special Court through the District Attorney or Public Prosecutor, but the manner in which Special Judge through, the impugned order has directed the Investigating Officer to submit challan after inserting section 365-A P.P.C., is not correct.
According while setting aside the impugned order dated 10-1-2007 passed by learned Special Judge Anti-Terrorism Court, Faisalabad, these petitions are allowed and the investigating agency is directed to submit report under section 173 Cr.P.C., before the Court of ordinary jurisdiction, the said Court, after perusing the record shall proceed with the matter in the light of observations made above.