' Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, Nasir Masih petitioner seeks transfer of case titled as "The State v. Nasir Masih" pending in the Court of learned Special Judge, Anti-Terrorism Court No,III, Lahore to the court of ordinary jurisdiction.
2. The brief facts of the case narrated in this petition are that during the investigation of case F.I.R.
No,815, dated 15-12-2006, registered under sections 302/324/148/149, P.P.C. Read with section 7 of Anti-Terrorism Act, 1997, at Police Station Township, Lahore, Nasir Masih petitioner had allegedly led to the recovery of rifle .244 bore, which was taken into possession by the police through recovery memo. And case F.I.R. No:843 dated 28-12-2006 was registered under section 13 of Arms Ordinance XX of 1965 at the same police station. The challan of the said case has been submitted in the Court of learned Special Judge, Anti-Terrorism Court No,III, Lahore and during the trial thereof the petitioner submitted an application under section 23 of Anti-Terrorism Act, 1997 for transfer of the said case to the Court of ordinary jurisdiction, which has been dismissed vide order, dated 10-5- 2007. Hence, this writ petition before this Court.
3. The learned counsel for the petitioner contends that offence under section 13 of Arms Ordinance XX of 196,5 has no nexus with the main incident and it cannot be tried by the learned Special Judge to a Court constituted under the Anti-Terrorism Act, 1997 as it is not scheduled offence and the case may be sent for trial to the Court of ordinary jurisdiction.
4. On the other hand, the learned Assistant Advocate-General opposes this petition on the ground that as the weapon got recovered from the petitioner is the case property of the main case being tried by the learned Special Court, therefore, under section 21M of Anti-Terrorism Act, 1997 both the cases can be tried by the same Court and no illegality has been committed.
5. We have heard the learned counsel for the parties and also gone through the contents of the writ petition.
6. Admittedly, offence under section 13 of Arms Ordinance XX of 1965 is not a scheduled offence and separate F.I.R. Has been registered against the petitioner for the alleged recovery of illicit firearm from his possession. Section 21M of Anti-Terrorism Act, 1997 reads as under:-- "21M. Joint trial.--- (1) While trying any offence under this Act, a Court may also try any other offence with which an accused may, under the Code of Criminal Procedure, 1898, be charged, at the same trial if the offence is connected with such other offence.
(2) If, in the course of any trial under this Act of any offence it is found that the accused person has committed any other offence under this Act or any other law for the time being in force, the Court may convict an accused for such other offence and pass any sentence authorized by this Act or, as the case may be, such other law, for the punishment thereof."
Which provides that at one trial the Court can try the accused for different offences, but in the present case separate F.I.R. Has been registered under section 13 of Arms Ordinance XX of 1965, which has to be tried by the Court of the ordinary jurisdiction. It has yet to be established that whether the same weapon had been used during the main occurrence or not. Mere commencement of the trial is not a ground for disallowing prayer of the petitioner as under section 23 of Anti-Terrorism Act, 1997 an Anti-Terrorism Court in a case of non-scheduled offence is duty bound to transfer it to the Court of ordinary jurisdiction. Hence, this writ petition is accepted, the impugned order is set aside and the learned trial Court is directed to transmit the case file to the learned Sessions Judge, Lahore, who shall further make it over to the Court having jurisdiction to try the same, which will proceed with the case from the present stage.