' MUHAMMAD TASNIM, J.-- Under the orders of honourable Chief Justice of this Court dated 29-9- 2011 following two questions have been placed before this Bench to examine the legality and propriety of Order dated 16-8-2011 passed by Incharge Judge Anti Terrorism Court Hyderabad calling the R&Ps from the Court of Additional Sessions Judge Moro in Crime No 12 of 2009 of Police Station Korai. The questions as framed are as under:--
(1) Whether Judge, Anti-Terrorism Court administratively controlled by the Government of Sindh is competent to pass the order of withdrawal of case pending in a regular court functioning' out of his jurisdiction and administratively controlled by the honourable High Court of Sindh?
(2) Whether the order dated 16-8-2011 passed by the Judge, Anti-Terrorism Court, Hyderabad is binding upon the District & Sessions Judge, Naushahro Feroze or Additional District & Sessions Judge, Moro.
2. Initially Question No,2 contained order dated 10-8-2010. After hearing the arguments of the parties it was noted that instead of 10-8-2010 the date should have been 16-8-2011. In the circumstances, office was directed to place the matter before the Hon'ble Chief.Justice for seeking appropriate orders for correction of the date in Question No,2. Accordingly matter was placed before the Hon'ble Chief Justice. The Hon'ble Chief Justice vide his order dated 5-11-2011 ordered that in Question No, 2 instead of order dated 10-8-2010 it be read as 16-8-2011.
3. The above two questions have been referred in the following background. It is stated that Judge Anti Terrorism Court Hyderabad has made a reference for transfer of Special Case No, 35 of 2011 (State v. Iftikhar Ahmed Malik and others) under section 365-A, P.P.C. Which was out come of Crime No, 156 of 2011 of Police Station Shaheed Fazil Rahu. It is further stated in the reference that F.I.R. No, 156 of 2009 was registered regarding the kidnapping for ransom of three sons of complainant namely Khalil Ahmed, Murtaza, Ihteshamul Haq and one guest Ghulam Mustafa s/o Ahmed Ali.
After investigation challan was submitted in the Anti Terrorism Court Badin and the then Judge of said Court passed an order dated 10-8-2010 under section 23 of Anti Terrorism Act 1997 (hereinafter called Act 1997) and transferred the case to the Sessions Judge Badin holding that the case was not triable by the Anti Terrorism Court. It is further stated in the reference that honourable Monitoring Judge of Anti-Terrorism Court during his jail visit was informed about the transfer of above case from Anti Terrorism Court to the Court of Sessions Judge, therefore, His lordship called the R&Ps and after perusal thereof converted the same into Criminal Revision Application No, D-150 of 2010. After hearing the parties and examining the record set aside the order dated 10-8-2010 and remanded the case to Anti Terrorism Court Hyderabad for trial. At the relevant tinie Anti Terrorism Court Hyderabad was lying vacant and_the charge of said Court was with the Sessions Judge Hyderabad therefore it was ordered that till the appointment of Judge Anti Terrorism Court Hyderabad the matter be placed before Sessions Judge Hyderabad who was having charge of said Court.
4. The Incharge Judge of Anti-Terrorism Court Hyderabad passed an order dated 16-8-2011 calling the R&Ps of the case which were outcome of crime No, 12 of 2009 registered at Police Station Korai, District Naushahro Feroze pending in the Court of Additional Sessions Judge Moro being connected case with Special Case No, 35 of 2011 under reference. Now the Judge Anti Terrorism Court Hyderabad who has taken over charge of said Court has requested for transfer of the case to Anti- Terrorism Court, Badin, on the ground that the then Judge Anti Terrorism Court Badin who passed order dated 10-8-2010 for transfer of case from his Court to the Court of Sessions Judge has completed his tenure and new Judge for Anti Terrorism Court Badin has taken over the charge therefore, in the interest of justice the case be transferred to the Judge Anti Terrorism Court Badin where offence took place and all the witnesses are residing. Since a learned Division Bench had already passed an order in the matter the Hon'ble Chief Justice ordered for placement of the case before this Bench.
5. In response to the notice of this Court Mr. Muhammad Iqbal Kalhoro Additional Prosecutor General appeared and advanced his arguments. Learned Additional Prosecutor General submitted that Anti Terrorism Court had no jurisdiction to call any criminal case pending before a Sessions Court either within his jurisdiction or beyond his jurisdiction. He submitted that section 21-M of Anti- Terrorism Act, 1997 does not give such powers as have been exercised by learned Incharge Judge Anti Terrorism Court Hyderabad. Learned Additional Prosecutor General in support of his submissions referred sections 233 and 235 Cr.P.C. And have also referred to section 32 of Anti- Terrorism Act, 1997. He further submitted that Anti Terrorism Court Hyderabad had . Wrongly called the R&Ps of the case pending before Additional' Sessions Judge Moro District Naushahro Feroze. He submitted that both the questions be answered in negative. In support of his contention, learned counsel placed reliance on the case of Syeda Zahida Rizvi v. The State (2011 YLR 1319), Pakistan Television Corporation v. M Babar Zaman and others (1989 SCM R 1549), Bago and 2 others v. The.
State. (1996 PCr.LJ 1818) and also referred Mehram Ali v. Federation of Pakistan and others (PLD 1998 SC 1445).
6. On the other hand, Mr. Ayatullah Khowaja, Advocate for respondent also submitted that Anti- Terrorism Court had no jurisdiction to call any criminal case pending within his jurisdiction or beyond his jurisdiction before the Sessions Court. He also submitted that question No,1 quoted above be answered in negative. He further submitted that learned Judge Anti Terrorism Court is administratively controlled by the Government of Sindh whereas other regular courts of the province are functioning under the administrative control of High Court of Sindh hence Judge Anti- Terrorism Court had no jurisdiction to call any case pending before learned Sessions Judge.
7. With regard to question No,2 both the learned counsel submitted that order dated 16-8-2011 passed by Incharge Judge, Anti Terrorism Court, Hyderabad, is in excess of his authority under the law and is not binding on the learned Sessions Judge, Naushero Feroze or Additional Sessions Judge, Moro.
8. We have heard learned counsel for the parties and have perused the record and have also examined the case-law cited at the bar.
9. From the perusal of the record it appears that learned Monitoring Judge of Anti-Terrorism Court during his visit to District Jail Badin was informed by the Sessions Judge, Badin that Judge Anti Terrorism Court Badin had passed an order dated 10-8-2010 under section 23 of Anti-. Terrorism Act, 1997 whereby he transferred the case to the Sessions Judge, Badin holding that the case was not triable by Anti-Terrorism Court. On such information learned Monitoring Judge of Anti- Terrorism Court called the R&Ps and after perusal converted the same into Criminal Revision Application No, D-150 of 20.10 and after hearing the parties passed order dated 24-12-2010 whereby order passed by the then Judge Anti Terrorism Court Badin was set aside in the words:-- "We, therefore, are clear in our minds that the order passed by the Anti Terrorism Court Badin was unwarranted. We set aside the order dated 10-8-2010 allowing the application of the accused persons under section 23 of the Anti- Terrorism Act and remand and transfer the case to the Anti Terrorism Court Hyderabad, which court presently is. Lying ,vacant and the charge, in law, is with the Sessions Judge, Hyderabad, therefore this matter shall be sent for trial to the Sessions Judge, Hyderabad, and in the intervening period in case the Judge, Anti Terrorism Court, is appointed, the matter be placed before him but this matter would not be heard before the Judge, Anti Terrorism Court, who has passed the order under section 23 of the Anti- Terrorism Act.
10. Perusal of the record further shows that the learned Sessions Judge, Hyderabad being In charge Judge of Anti Terrorism ' Court Hyderabad while dealing with an application under section 21-M of Anti-. Terrorism Act 1997 came to the conclusion that the case pending before Sessions Court Moro in Crime No, 12 of 2009 under sections 302, 201 r/w section 34 P.P.C. Is an outcome of the case pending before him as one of the abductees of that case was found dead within jurisdiction of Sessions Court Moro. The witnesses of both the cases were the same. Accused persons were same and both the cases were interconnected. In these circumstances the learned Sessions Judge Hyderabad being In charge Judge of Anti Terrorism Court Hyderabad purportedly under section 21- M of Act 1997 directed that both the cases be tried jointly and in this connection the learned Judge asked the District and Sessions Judge Naushahro Feroze to transmit case arising from Crime No,12 of 2009 to the Court of Anti Terrorism Court Hyderabad for trial.
11. From the perusal of record it further appears that a new Judge Anti Terrorism Court Hyderabad has been appointed who vide his letter dated 24-9-2011 submitted that both the cases are no doubt inter connected, witnesses are same, the accused are same and case registered at Moro is a consequence of case of abduction committed at Badin but the charge had already been framed in the case pending before Anti-Terrorism Court Hyderabad and so also the charge has been framed in the case of Crime No,12 of 2009 before Additional Sessions Judge of District Naushero Feroze. In the circumstances he had written letter to the Member Inspection Team-II High Court of Sindh Karachi for soliciting orders of the Honourable Chief Justice under section 28 of Act 1997. He has further mentioned in his letter that since the cases were transferred to this Court for the reasons that the then Judge Anti-Terrorism Court Badin had passed the order of transfer but now tenure of said presiding officer has been completed and new Judge of Anti-Terrorism Court Badin has taken over charge so in his view it would be in the interest of justice that both the cases be transferred to the Court of Anti Terrorism Badin where all the witnesses are residing.
12. To answer the above question No,1 it will be advantageous to quote the provisions of section 21- M of Anti-Terrorism Act, 1997.
"21-M. 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 the Act 1997 or, as the case may be, such other law, for the punishment thereof"
13. An examination of the above quoted provisions of law shows that while trying any offence under the Act, 1997, Anti Terrorism 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. It further provides that if, in the course of any trial under the Act, 1997 of any offence it, is found that the accused person has committed any other-offence under the Act 1997 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 the Act 1997 or, as the case may be, such other law, for the punishment thereof.
14. The other relevant sections to controversy in hand are sections 17 and 23 of the Act 1997 which are quoted hereunder:- "17. Powers of [Anti-Terrorism Court] with reference to other offences.-When trying any scheduled offence, [an 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.
23. Power to transfer cases to regular Courts.-Where, after taking cognizance of an offence, [an Anti-Terrorism Court] is of 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.
15. Section 17 of Act 1997 empowers the Anti Terrorism Court to try any scheduled offence and also try any offence other than the scheduled offence with which the accused may be charged at the same trial. Section 23 of the Act 1997 provides that after taking cognizance of an offence, Anti Terrorism Court if of the opinion that 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 of Criminal Procedure 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. In other words section 17 provides that Anti Terrorism Court will have power to try non scheduled offence only when it is trying scheduled offence i,e, scheduled and nonscheduled offence can be tried together in one and the same trial. Power to try non-scheduled offence will not be available to the Anti Terrorism Court under section 17 when it is not trying any scheduled offence. Reference can be made to the case of Muhammad Bilal @ Sulleman v. Federation of Pakistan through Secretary Ministry of Law Justice and Human Rights Divisions and 3 others (2011 PCr.LJ 411).
16. The powers of Anti Terrorism Court came up for consideration before learned Division Bench of Peshawar High Court in the case of Sardar Shah and others v. The State (2011 M LD 45) .Wherein after examining the number of provisions as contained in Act 1997 the court observed as under:-- "We could not find any such like provision in the Anti- Terrorism Act, 1997 which empowers a court constituted under the ibid Act to take such like suo motu action. The Anti Terrorism Courts are established under section 13 of the Act ibid. Section 14 provides for composition and appointment of Presiding Officer Anti-Terrorism Court. Section 17 provides about the powers of Anti Terrorism Court in respect of other offences and section 19 provides procedure and powers of Anti Terrorism Court. We would like to reproduce subsections (1) and (7) of section 19 of the Act ibid.
19. Procedure and powers of Anti Terrorism Court.--(1) All offences under this Ordinance, except the offences in respect of which the investigation has already been completed and final report under section 173 of the Code has been submitted in the Court, shall be investigated by a Joint Investigation Team which shall comprise of a police officer not below the rank of an Inspector and an officer of any other investigating agency, including an intelligence agency, whom the Federal Government or as the case may be, the Provincial Government, may nominate for the purpose.
The Joint Investigating Team shall complete the investigation in respect of a case triable by an Anti Terrorism Court within seven days and forward directly to the Anti Terrorism Court a report under section 173 of the Code.
(7) The Court shall, on taking cognizance of a case, proceed with the trial from day to day and shall decide the case within seven days, fairing which an application may be made to the Administrative Judge of the High Court concerned for appropriate direction for expeditious disposal of the case to meet the ends of justice.
' Section 19 consists of 14 subsections but none of all subsections authorizes the court to take such like suo motu action. Section 23 of the Act ibid empowei-s the Anti Terrorism Court to transfer the case for trial of an offence to any court having jurisdiction under the Code if the Anti Terrorism Court is of the opinion that the offence is not a scheduled offence. It so appears .That the trial Judge has assumed the powers which were not available to him by the Act ibid. Suck-like powers can be exercised by the High Court that too in its constitutional jurisdiction when it comes to the conclusion that the case is one triable under the provisions of Anti Terrorism Act but the Investigating Agency, for one reason or the other has not added the provisions of Anti Terrorism Act. We have discussed the above given position for the only reason that in future a court of law may not exercise such like jurisdiction/powers. We would not remand the case for this reason as challan was submitted, in accordance with provisions of Anti Terrorism Act, 1997."
17. Section 32 of the Act 1997 was also referred by learned Additional Prosecutor General, which deals with the overriding effect of Act 1997, it provides that provisions of Act 1997 shall have effect notwithstanding anything contained in the Criminal Procedure Code or in other law but, save 'as expressly provided in the Act 1997, the provisions of the Code of Criminal Procedure shall, in so far as they are not inconsistent with the provisions of the Act 1997. Provisions of the Act 1997 shall supercede every other provisions of other Laws to the extent of contrariety and not beyond.
18. From the above discussion it is manifestly clear that section 21-M of Act .1997 does not give any power to Anti Terrorism Court to withdraw any case pending within or outside its jurisdiction before a regular court functioning under administrative control of the High Court. Perusal of section 28 of Act 1997 shows that it gives power to the Chief Justice of High Court concerned if he considers it expedient C so to do in the interest of justice or where the convenience or safety of the witnesses or the safety of the accused so requires, transfer any case from one Anti-Terrorism Court to other Anti Terrorism Court within or outside the area. It further provides that an Anti Terrorism Court to which a case is transferred shall proceed with the case from the stage at which it was pending immediately before such transfer and it shall not be bound to recall and rehear any witness who has given evidence and may act on the evidence already recorded. Provided that nothing contained in such section shall affect the powers of Presiding Officer of the Special Court to call any witness as is available under the law.
19. Even otherwise under Article 203 of the Constitution of Pakistan, 1973 the High Court of the Province has to supervise and control all courts subordinate to it. Examination of the Act 1997 shows that Judge Anti Terrorism Court who is administratively controlled by the Provincial Government has no jurisdiction under the law to withdraw a case pending in a regular court functioning subordinate to the High Court of the Province.
20. In view of above the question No,1 referred to this bench is answered in negative holding that Anti Terrorism Court had no authority and jurisdiction under the provisions of Act 1997 to withdraw a case pending before the Court of Session. As such, powers are vested in the High Court.
21. Question No,2 is also replied in negative for the aforesaid reasons. Order dated 16-8-2011 passed by learned In charge Judge, Anti-Terrorism Court Hyderabad was in excess of his authority as such was not binding upon learned Sessions Judge, Naushero Feroze, or Additional Sessions Judge, Moro.
22. From the record it also appears that the tenure of the Judge of Anti Terrorism Court Badin who has passed order dated 10-8-2010 have been completed and in his place new Judge in Anti Terrorism Court Badin has already taken over charge, so it will be in the interest of justice that the above referred cases be transferred to the Court of Judge Anti Terrorism Court Badin where all the witnesses are residing. Accordingly it is ordered that both the above cases be placed before Anti- Terrorism Court Badin for disposal in accordance with law.
23. In view of above, this reference is disposed of accordingly.