' NADEEM AZHAR SIDDIQI, J.-Through this Criminal Revision Application the applicant, Raza Khan, seeks to assail the order dated 2nd June, 2007 passed by Administrative Judge, Special Court Anti- Terrorism, Karachi Division in Crime No,1/2004 of P.S. Sachal, Karachi, whereby the learned Administration Judge ordered the Challan to be delivered to competent officer for presentation before the-competent forum for adjudication in accordance with law.
2. Facts of the case essential for deciding this Criminal Revision, in chronological order, are that the applicant, on 7th January, 2004, filed an application under section 22-A read with section 100, Cr.P.C. Before learned Sessions Judge, Malir stating therein that his real brother, Gul Farooq son of Muhammad Khan, has been kidnapped/arrested by the officials of the Investigation Cell of Police Station Sachal, Malir on 20-12-2003 at mid night from his home and since then he is under illegal custody of the said officials. On the said application, the Sessions Judge, Malir, directed Mr. Abdul Quddus Memon, Judicial Magistrate, to raid the said P.S. The said Judicial Magistrate raided Police Station Sachal, Malir and recovered the brother of the applicant from the Investigation Room of police station. He directed the Duty Officer to register case against the said accused persons. The Duty Officer recorded the statement of the detenu Gul Farooq who inter alia stated as under:-- "that I am in custody of P.S. From 22/23 days, Sub-Inspector Sarfraz took me from my house, and on my insisting about the case, the Sub-Inspector Sarfraz had not told anything. D.S.P. Ghulam Mustafa Shah of Investigation came two times at the police station and threatened me for dire consequences and threatened me that if your brother not gave Rs,500,000 for my releasing, I will be booked in a case of kidnapping, death and other heinous crimes, and on my refusal he locked me in police station, and some time S.I. Inquired me that how much amount I will pay, during illegal detention S.I. Sarfraz kept my mobile, Watch Rado Black, Chain, Rs,21,000 some change amount and copy of NIC, and the same not returned to me till today."
3. The judicial Magistrate, on the perusal of the statement of detenu, ordered that offences under sections, 342, 344, 347, 506 and 382, P.P.C., have been tentatively made out and under his instructions F.I.R. No,1/2004 on 7th January, 2004 was registered by the Duty Officer, PS Sachal against D.S.P. Ghulam Mustafa Shah and S-I.P. Syed Sarfraz Khan. On 28th January, 2004 the Investigation Officer submitted Final Report under section 173, Cr.P.C. And requested for disposal of the F.I.R./Challan under "A" Class of the Police Act. However, vide order dated 29th January, 2004, the learned Magistrate did not accept the Final Report and directed the police to add section 365- A, P.P.C. Therein. Accordingly, Challan under section 173, Cr.P.C. Was submitted on 31st January, 2004 before the said Judicial Magistrate who vide order dated 13th February, 2004, directed that since offence under section 365-A is exclusively triable by the Court of Session, let Challan be submitted before the Sessions Judge, Malir. The learned Sessions Judge, on receipt of the case, transferred the same to the learned II-Additional Sessions Judge, Malir as Sessions Case No,61/04 under sections 342, 344, 347, 382, 506 and 365-A, P.P.C. The learned Additional Sessions Judge returned the Challan to the Investigation Officer as the offence under section 365-A, P.P.C. Is exclusively triable by the Judge, Anti-Terrorism Court, Karachi. Accordingly, the case was received by the Administrative Judge, A.T.C., who sent the case to A.T.C. Court No,1, Karachi for scrutiny and further proceedings who registered the case as Special Case No, 46 of 2004 and issued process/non-bailable warrants for the arrest of the absconding respondents Nos.2 and 3. However, when the police failed to arrest the absconders, the Court ordered the case to be kept on dormant file. In the meanwhile, on 26th October, 2004, an application was moved by the Provincial Police Officer to the Home Department, Government of Sindh for withdrawal of the case under section 494, Cr.P.C. Against the accused D.S.P. Ghulam Mustafa Shah and S.-I.P. S.M. Sarfraz on which the following order was passed:-- "Now, therefore, the Government of Sindh with the approval of competent authority has decided to drop/delete section 344, 347, 382, 506 and 365-A, P.P.C. From the Challan under section 494, Cr.P.C.
And the trial of the case may be allowed to run its normal course under section 342, P.P.C.
' The Special Public Prosecutor, Anti-Terrorism Court No,1, Karachi is hereby advised to move application under section. 494, Cr.P.C. Before the trial Court to drop/delete section 344, 347, 382, 506 and 365-A, P.P.C. From the Challan under section 494, Cr.P.C. Subject to surrender of the accused before the Court.
' This department's order of even number dated 20th May, 2006 is hereby cancelled/withdrawn."
4. In view of the above, the accused/respondent No,3, S-I.P. Syed Muhammad Sarfraz, surrendered before the Anti-Terrorism Court No,1 Karachi and, on an application dated 2nd November, 2006, the learned Judge, Anti-Terrorism Court No,1, Karachi passed an order on 7th November, 2006 directing for return of the case to Judicial Magistrate for trial under section 342, P.P.C. Against this order, a Criminal Revision Application bearing No,2 of 2007, was filed before this Court on which the following order was passed on 4th May, 2007:- "In these circumstances, the learned advocates for the applicant, respondents and A.A-G. Have agreed that the case may be sent to the learned Administrative Judge for passing appropriate orders on the matter.
' In the light of what has been discussed above, the matter be placed before the learned Administration Judge, Anti-Terrorism Courts, Karachi for passing appropriate orders within the meaning of section 19(3) read with sections 13(2) & (3) of Anti-Terrorism Act in view of his order dated 9-6-2004.
' The revision application is allowed to the above extent."
5. Accordingly, the file was placed before the learned Administrative Judge, who vide impugned order, held as under:-- "Victim Ghulam Gul Farooq in his statement before the Judicial Magistrate did not involve the accused for commission of offence of abduction for ransom. His allegations are against S.-I.P.
Muhammad Sarfraz along with his staff took him from his house in mobile vehicle, made him to sit in police station where absconding accused D.S.P. Ghulam Mustafa Shah demanded substantial amount alternatively threatened victim to involve him in murder and abduction cases.
' Undoubtedly offence of commission of wrongful confinement, wrongful confinement for the purpose of extorting money, theft, extortion by putting any person for acquisition, simpliciter are triable by ordinary Court of law. Section 365-A, P.P.C. Appears to have been applied by misconception as no offence of such nature warranting its trial by Anti-Terrorism Court does not seem to have been committed by accused."
' In view of the above observations, the learned Administrative Judge, Special Court, Anti-Terrorism, Karachi Division, ordered as under:-- "On account of the above discussion, cognizance in terms of section 19 (3) read with sections 32 & 33 of Anti-Terrorism Act 1.997 is not warranted. Challan be delivered to competent officer for presentation before the competent forum for adjudication in accordance with law."
' Hence, this petition, challenging the above order of the learned Administrative Judge, Special Court, Anti-Terrorism, Karachi Division.
6. We have heard Mr. Muhammad Ashraf Kazi, learned counsel for the applicant, Mr. Habib Ahmed, A.A-G. For the State, Mr. Raza Hashim, learned counsel for the respondent No,3 and respondent No,2 in person.
7. Mr. Muhammad Ashraf Kazi, learned counsel for the applicant, submits that the learned Administrative Judge has not properly examined the statement of victim and the contents of the F.I.R. In the light of section 2(n) and clause (e) of subsection (2) of section 6 of the Anti-Terrorism Act of 1997. He then submits that the offence involving kidnapping for ransom is included in the definition of terrorism which is a scheduled offence and is exclusively triable by the Court of Anti- Terrorism in view of the Third Schedule of the Act. He further submits that the learned Administrative Judge fails to distinguish between an offence committed under section 220, P.P.C, and a scheduled offence under the Anti-Terrorism Act. He also submits that merely for the reason that the accused persons are uniformed persons are not entitled to any leniency and are liable to be dealt with in accordance with law.
8. The learned counsel has relied upon the following reported cases:--
(i) The State v. Farman Hussain (PLD 1995 SC 1);
(ii) Hussain Ahmad v. Mst. Irshad Bibi (1997 SCM R 1503);
(iii) Nasir Abdul Qadir v. The State (2003 SCM R 472); and
(iv) Altaf Hussain v. The State (2006 PCr.LJ 1080).
9. Mr. Habib Ahmed, learned A.A.-G., submits that initially section 365-A was not inserted in the F.I.R.
And the investigation agency has recommended for disposal of F.I.R. In "A" Class which was not accepted by the learned Magistrate, who issued direction for submission of challan, which was beyond his jurisdiction and on his direction section 365-A was inserted. He then submits that from the perusal of statement of victim and the F.I.R. No case was made out and the police have rightly recommended for cancellation of F.I.R. Under "A" Class. He then submits that all void and illegal orders can be looked into at any stage and the same can be set aside irrespective of limitation. He has relied upon unreported case of the State v. Fahim Ahmed and others in Criminal Revisions No,85/2006 and others.
10. Mr. Raza Hashmi, learned counsel for the respondent No.3, has adopted the arguments of the learned A.A-G. And submits that insertion of section 365-A, P.P.C, without inserting section 7 of the Anti-Terrorism Act, 1997 is against the spirit of law and the learned Administrative Judge has rightly refused to take cognizance of the same. He has relied upon the reported case of Nadeem Butt v.
Special Court (2000 SCM R 1086) in supported of his contention that jurisdiction to decide whether a particular case falls or does not fall within its jurisdiction lies with the Presiding Judge of Anti- Terrorism Court, and the decision cannot be interfered in revisional jurisdiction.
11. The respondent No,2 appeared in person and adopted the arguments of learned A.A.-G. And Mr. Raza Hashmi and additionally submits that he has been falsely implicated and has nothing to do with the alleged offence and there is no implicating material available on record against him.
12. The question before us is whether the offence is triable by an ordinary Court or by a Special Court established under the Anti-Terrorism Act, 1997. This appears to be an admitted position that the victim Gul Farooq was recovered by the learned Magistrate from the Investigation room of police station Sachal, Malir, and on his direction F.I.R. Was registered against the accused persons.
In his statement the victim has stated that he was in custody of police station from 22/23 days, Sub-Inspector Sarfraz took him from his residence. He further submits that D.S.P. Ghulam Mustafa Shah threatened him for dire consequences and that if his brothers will not give him Rs,500,000 for his release he will be booked in a case of kidnapping, death and other heinous crime and S.I.
Enquired him that how much amount he will pay.
13. The Anti-Terrorism Courts are established under section 13 of the Anti-Terrorism Act, a Special Law for the prevention of terrorism, sectarian violence and for speedy trial of heinous offences and for matters connected therewith and incidental there. Section 12 of the said Act provides that the Anti-Terrorism Court is conferred jurisdiction to try schedule offences. Article 1 of Schedule III of the said Act provides that any act of terrorism within the meaning of this Act including those offences which may be added or amended in accordance with the provision of section 34 of the said Act are triable by the Anti-Terrorism Court exercising territorial jurisdiction in relation to such area.
Clause (e) of subsection (2) of section 6 of the Act provides kidnapping for ransom, hostage- taking or hijacking as an act of "terrorism".
14. Clause (n) of section 2 of the said Act defines "kidnapping for ransom" as under:-- "kidnapping for ransom" means the action of conveying any person from any place, without his consent, or by force compelling or by any deceitful means inducing him, to go from any place, and unlawfully detaining him and demanding or attempting to demand, money, pecuniary or other benefit from him or from another person, as a condition of his release."
15. The respondents Nos.2 and 3 are admittedly charged with an offence of kidnapping for ransom which is covered by the definition of terrorism and according to Schedule III of the Act is a scheduled offence triable by a Special Court established under the said Act. It has to be seen from the contents of the F.I.R. And other material collected by the investigation whether an offence under section 6 of the Act has been made out or not? The Courts dealing with criminal cases usually takes cognizance of offence on the basis of contents of F.I.R. And on tentative assessment of the material available on record and deeper appreciation of evidence or detail inquiry is not required and for this purpose the pleas raised in defence are not relevant; However, in case where after taking cognizance of an offence the Anti-Terrorism Court forms an opinion on the basis of material produced before it that offence is not a scheduled offence, the Court can always transfer the case of trial of such offence to any Court having jurisdiction in terms of section 23 of the Act.
16. In the present case, from the perusal of statement of victim and F.I.R. It appeared that allegation of kidnapping for ransom has been made. It is also an admitted position that the victim was recovered by the learned Magistrate from Investigation room of police station without any entry and apparently a scheduled offence has been made out. The opinion of the police is not binding upon the Court and the Court can take cognizance of an offence in case of negative report also. In the case of Nasir Abdul Qadir v. The State (2003 SCM R 472) the Honourable Supreme Court has held that question of jurisdiction is to be determined on the basis of F.I.R. And other material which is reproduced by the prosecution at the time of presentation of challan.
17. In the reported as of Mirza Shaukat Baig v. Shahid Jamil (PLD 2005 SC 530) the Honourable Supreme Court, while affirming the jurisdiction of the Anti-Terrorism Court, has held as under:-- "There is no denying the fact that it was never the intention of legislature that every offender irrespective of the nature of the offence and its overall impact on the society or a section of society must be tried by the Anti-Terrorism Court, but the question as to whether such trial shall be conducted or not initially falls within the jurisdictional domain of Anti-Terrorist Court which cannot be interfered with in the absence of sufficient lawful justification which appears to be lacking in these cases. It is, however, obligatory for such Courts to watch carefully the nature of the accusation and examine the entire record with diligent application of mind to determine as to whether the provisions as contained in the Act would prima facie be attracted or otherwise? Where such Courts are of the view after taking cognizance of the offence that the alleged offence does not fall prima facie under the provisions of the Act it must transfer the same to regular Court without loss of time."
18. From the perusal of above quotation, it is clear that it is within the domain of Anti-Terrorism Court to decide whether the offences are triable by it or not.
19. From the material available on record, a prima facie case triable by the Special Court has been made out. However, if on the basis of any material that may come on record through evidence of either prosecution or defence if the court forms any opinion that offence is not scheduled offence and is triable by the ordinary court dealing with criminal cases, it may transfer the case to such Court in exercise of power under section 23 ibid.
20. In view of the above the impugned order is set aside and the revision application is allowed. The learned Administrative Judge may send the challan to the Special Court for trial in accordance with law.