' Through this constitutional petition, petitioner Muhammad Sharif has assailed the legality of order dated 18-102011 passed by the learned Judge Anti-Terrorism Court Bahawalpur whereby case F.I.R.
No,9 of 2010 dated 9-1-2010 registered under sections 365-A/302 and section 7 of the Anti- Terrorism Act 1997 at Police Station Saddar Hasilpur District Bahawalpur was sent to the Court of ordinary jurisdiction.
2. Succinctly, the facts of the case are that complainant Muhammad Sharif got registered the aforesaid case against respondents Nos.2 to 6 with the allegation that on 9-1-2010 they abducted Manzoor Hussain alias Bhola, brother of the complainant from his poultry farm, for ransom. The police after investigation, challaned respondents Nos.2 to 6 and the learned Judge Anti-Terrorism Court. Bahawalpur, after takihg cognizance of the case, framed charge under section 302/ 365- A/109, P.P.C. Read with section 7-E of the Anti-Terrorism Act 1997, recorded the statements of 18 witnesses, examined accused/respondents Nos.2 to 6 under section 342 Cr.P.C. And after hearing the learned counsel for the parties, transferred the case to the Court of ordinary jurisdiction.
3. Learned counsel for the petitioner has contended that offence under section 365-A, P.P.C. And section 7-E Anti-Terrorism Act, 1997 was made out as his brother, the deceased of this case, was abducted for ransom and was murdered and all the P. Ws. Had fully implicated the accused for the commission of the aforesaid 'scheduled offence but the learned Judge Anti-Terrorism Court Bahawalpur, after hearing the final arguments had opined that offence under section 365-A, P.P.C.
Was not made out against respondents Nos.2 to 6 and they have committed an offence punishable under section 365, P.P.C. And sent the case to the Court of ordinary jurisdiction for further proceedings, illegally, because it was incumbent upon the learned Judge Anti-Terrorism Court Bahawalpur to decide the case either way and was not competent to transfer the case at the final stage, hence the impugned order is against the provisions of law and is liable to be set aside and the case is liable to be tried by the learned Judge Anti-Terrorism. Court. Relies upon "2003 SCM R 472".
4. Conversely, the learned counsel for respondents Nos.2 to 6 has opposed this petition and contended that after recording the evidence and hearing the arguments, the learned Judge Anti- Terrorism Court had come to the conclusion that the offences under section 365-A, P.P.C. And section 7-E of the Anti-Terrorism Act, 1997 have not been made out against respondents Nos.2 to 6 and rightly transferred the case to the Court of ordinary jurisdiction as the learned Judge Anti- Terrorism Court was not competent to proceed further with the matter. Relies on "PLD 2005 Supreme Court 530", "2005 PCr.LJ 941 (Quetta)" and "2011 PCr.LJ 411 (Karachi)".
5. We have heard learned counsel for the petitioner, learned counsel for respondents Nos.2 to 6, learned D.P.-G. For the State and have perused the record. b. The case against respondents Nos.2 to 6 was registered under section 365, P.P.C. At Police Station Sadder Hasilpur District Bahawalpur. Respondents Nos.2 to 6 allegedly demanded ransom for the release of Manzoor Hussain deceased, brother of the complainant and thereafter due to non- payment of ransom, they done him to death. The police after investigation submitted challan before the learned Judge Anti-Terrorism Court Bahawalpur under sections 302/365-A, P.P.C. Read with section 7 of the Anti-Terrorism Act, 1997. Learned Judge Anti-Terrorism Court Bahawalpur, after framing of charge, recorded the evidence produced by the prosecution, examined the accused under section 342, Cr.P.C., heard the final arguments and after appraisal of evidence concluded that' the offence under section 365-A, P.P.C. Was not made an and transferred the case to the Court of ordinary jurisdiction.
7. We have carefully gone through the case-law produced on the subject. The case titled "Nasir Abdul Qadir and others v. The State (2003 SCM R 472)" was registered under section 302/34, P.P.C.
Read with the provisions of Suppression of Terrorism Activities Special Court Act, 1995, wherein it was held that the question of jurisdiction can be determined on the basis of F.I.R. And the material which has been produced by the prosecution at' the time of the presentation of the challan and it is the Court which has to decide on the basis of material whether cognizance is to be taken or not and case was within the competence of the said Court.
8. The Hon'ble Supreme Court of Pakistan in case titled "Mirza Shaukat Baig and others v. Shahid Jamil and others PLD 2005 Supreme Court 530)" observed that it was obligatory upon the Court to watch carefully the nature of 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.
9. Section 17 of the Anti-Terrorism Act, 1997 provides for the powers of Anti-Terrorism Court in respect of other offences, which reads as under:-- "When trying any scheduled offence, (Anti-Terrorism Court) may also try any offence other than the scheduled offence with which the accused may, under the Code, be charged at the same trial"
According to the apparent meaning of section 17 of the Anti-Terrorism Act, 1997, the Anti-Terrorism Court has got a power to try non-scheduled offence only when it is trying scheduled offence i,e, scheduled and unscheduled offence can-be tried together in one and the same trial. The said power under section 17 of the Anti-Terrorism Act, 1997 shall not be available to the Anti-Terrorism Court when it is not trying any scheduled offence. Once the Anti-Terrorism Court has tried the offence and has formed the opinion that the scheduled offence is not made out, then in the terms of section 23 of the Anti-Terrorism Act 1997, it will have no jurisdiction to pass any judgment and it will have to transfer the case to the ordinary Court. Section 23 ibid reads as under:-- "Where, after taking cognizance of an offence, (Anti-Terrorism Court) is of the opinion that the offence is not a scheduled offence, it shall, notwithstanding that it has no jurisdiction to try such offence, transfer the case for trial of such offence to any Court having jurisdiction under the Code, and the Court to which the case is transferred may proceed with the trial of the offence as if it had taken cognizance of the offence."
10. In this case, the Anti-Terrorism Court tried the offences and formed the opinion that a case of scheduled offence under section 365-A, P.P.C. Had not been made out, as such once the Court had formed a different opinion in terms of section 23 of Anti-Terrorism Act, 1997, the said Court had no jurisdiction to pass any final judgment in the trial. Instead the said Court had the only option to transfer the case to the Court of ordinary jurisdiction, as provided under section 23 ibid. It may be observed here that scope of provisions of section 23 of Anti-Terrorism Act, 1997, cannot be limited to a specific. Point of trial, rather by use of word "cognizance", which includes trial, the legislature was cognizant of the fact in some cases (like the one in hand), the question of jurisdiction, may be properly decided after recording of some evidence. As such, no procedural error can be attributed to the impugned order of the learned Judge Anti-Terrorism Court.
I1. The impugned order, therefore, is perfectly in accordance with law, no illegality, irregularity or any jurisdiction defect is .Seen therein, hence the same is hereby maintained and as a necessary consequence the writ petition being withoutany merits, stands dismissed. .