Rauf Ahmed Sheikh, J---In all these writ petitions common questions of law require adjudication so these are being decided through this single judgment.
2. The State through Additional Prosecutor General, Punjab has filed the instant writ petitions under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 assailing the order dated 24.05.2010 passed by the learned Judge Special Court No, II, Rawalpindi constituted under Anti- Terrorism Act, 1997, whereby the cases against the Respondents mentioned in Para No, 1 of the writ petition, were transferred to the Court of ordinary jurisdiction. The learned Law Officer has contended that the learned Judge Special Court No, II, Rawalpindi erred in exercising his powers under Section 23 of the Anti-Terrorism Act, 1997 and ignored that by transporting and keeping in possession the huge quantity of the explosives substances, mines, ammunition powder, suicidal explosive jackets, prima cards, detonators, batteries, fuel tank of motorcycle, gun powder, grenade and ammonium sulphate etc, the respondents in the above mentioned petitions posed a serious threat to the human lives and property and created serious risk to the safety of the public within the meanings of Section 6(2)(D) & (i) of the Anti-Terrorism Act, 1997; that the offences punishable under Sections 4 & 5 of the Explosive Substances Act, 1908 is triable by the Special Court under Notification dated 27.10.2010 issued by the Government of the Punjab and the subsequent Notifications dated 26.09.2012; that the import of the explosive material from the tribal area and keeping the same in possession is one of the acts, which may ultimately culminate into any unfortunate and tragic event; that the persons storing such material extend aid to the actual culprits involved in bomb blasting and suicidal attack; that the cases FIR Nos,24 and 25/2010 dated 15.02.2010 under Sections 4/5 ESA/120-B, PPC & 7 of Anti-Terrorism Act, 1997 P.S Basal, District Attock, FIR No, 36 under Sections 4/5 ESA/120-B, PPC & 7 of Anti-Terrorism Act, 1997 P.S Basal, District Attock, 26/2010 dated 15.02.2010 under Sections 4/5 ESA/120-B, PPC & 7 of Anti-Terrorism Act, 1997 P.S Basal, District Attock, 27/2010 dated 15.02.2010 under Sections 4/5 ESA/120-B, PPC & 7 of Anti-Terrorism Act, 1997 P.S Basal, District Attock, 32/2010 dated 26.02.2010 under Sections 4/5 ESA/120-B, PPC & 7 of Anti-Terrorism Act, 1997 P.S Basal, District Attock and 33/2010 dated 26.02.2010 under Sections 4/5 ESA/120-B, PPC & 7 of Anti-Terrorism Act, 1997 P.S Basal, District Attock were registered against the respondents according to the facts of each case and these were exclusively triable by the Special Court; that unfortunately such outlaws are not punished adequately so their nefarious activities are not effectively checked; that the impugned order could have not been assailed under Sections 435/435 and 561-A, Cr.P.C. so writ jurisdiction of this Court has been invoked to get wrong done by the trial Court rectified.
3. The learned counsel for the respondents at the outset has contended that the writ petitions are not maintainable in view of the fact that it has not been filed in accordance with the provisions of Article 174 of the Constitution of Islamic Republic of Pakistan, 1973 and Section 79 of the Code of Civil Procedure 1908 as the Province of Punjab has not been impleaded and it had not been filed by the Government of the Punjab through Secretary Prosecution or the Collector. It is further urged that under the Rules of Business of the Punjab Government, only the Solicitor or Law Secretary to the Government of the Punjab could have granted permission for filing of the writ petition; that the petition could have not been filed through the Additional Prosecutor General rather the Advocate General, Punjab or the concerned Additional Advocate General or Government pleader could have filed the same. On merits it is contended that a Division Bench of this Court in W.P No, 10258-11 has already held that Notification dated 27.10.2010 does not have retrospective effect and the cases could have not been transferred. In support of the contentions raised reliance is placed on 2010 SCM R 115 and 2007 YLR 155 (Lahore).
4. By exercising the right of rebuttal the learned Law Officer has contended that the Secretary of the Government of the Punjab had directed the Prosecutor General to file the writ petitions and as such no irregularity has been committed in filing the writ petitions.
5. All these writ petitions are titled as "The State versus The Special Judge Anti-Terrorism Court No, II, Rawalpindi and others". These have been signed by the Additional Prosecutor General Punjab, Lahore High Court, Rawalpindi Bench, Rawalpindi. Article 174 of the Constitution of the Islamic Republic of Pakistan, 1973, clearly provides as under: "The Federation may sue or be sued by the name of Pakistan and a Province may sue or be sued by the name of the Province"
Whereas Section 79 of the Code of Civil Procedure, 1908 provides as under: in a suit by or against the Government the authority to be named as plaintiff or defendant, as the case may be, shall be:
(a) in the case of a suit by or against the Federal Government, Pakistan
(b) in the case of a suit by or against a Provincial Government, the Province:"
In view of the law laid down in PLD 1970 SC 1, the provisions of the Code of Civil Procedure, 1908 are applicable on the proceedings before the High Court in exercise of its writ jurisdiction. This being so, the Provincial Government can file the writ petition or can be arrayed as respondent as under: "The Province of Punjab through the Secretary (concerned) to the Government of the Punjab or the Collector.
If the Government has not authorized any specific Officer to sign the writ petition or the plaint, it can only be signed by the persons mentioned in Order XXVII; Rule 2, CPC. The Additional Prosecutor General is not the Government pleader so he cannot sign the plaint or writ petition or any application on behalf of the Provincial Government. The civil suit or writ in the name of the State simplicitor does not fulfill the requirements of law. In this respect reliance is placed on 2010 SCM R
115. These writ petitions, therefore, suffer from legal infirmity. These have not been filed in accordance with law and merit dismissal on this ground alone. The Writ Petitions No, 4195 of 2010, W.P. No, 1755 of 2011, W.P. No, 1761 of 2011, W.P. No, 1762 of 2011, W.P. No, 1763 of 2011, W.P. No, 1764 of 2011 and W.P. No, 1765 of 2011 are not maintainable in form in which these have been filed so are accordingly dismissed.