' AHMED ALI M. SHAIKH, J.---Through this Criminal Transfer Application, applicant seeks transfer of Special Case No,197 of 2011 from the Court of Special Judge, CNS-I, Karachi to any other CNS Court.
2. Brief facts giving rise to the instant application are that upon recovery of 226 Kgs cocaine, F.I.R.
No,PCU/ Misc/15/2010-HQ under sections 6, 7, and 8 of the Control of Narcotic Substances Act, 1997 was registered against the respondents at Police Station Customs Karachi. During trial, the respondents filed application under section 265-K Cr.P.C. And section 37 of the CNS Act, 1997 and the trial Court directed the mushir of recovery namely I.O. Sardar Abdul Qayyum to appear and give evidence. According to the contents of the application, the learned trial Judge, during the course of hearing, has already made up his mind and observed in open Court that the prosecution has made a false case against the respondents. It is further alleged in the application that on the one hand the trial Court ignored the stubborn attitude of the Defence Counsel and on the other hand threatened and pressurized the prosecution witness for their prosecution, therefore, apparently free, fair and impartial trial cannot be had from the learned trial Court.
3. The learned counsel for the applicant has contended that attitude of the Presiding Officer towards the complainant and P.Ws. While conducting the case, is too harsh and derogatory as the learned trial Judge did not allow the prosecution witnesses to exhibit the documents, on which they rely. According to the learned Counsel, on one occasion due to the sudden demise of his father, the Special Prosecutor could not attend the proceedings and sent an application for adjournment but the same was not considered by the learned trial Judge, who directed the complainant to enter into the witness box and get his evidence recorded. Per learned counsel from the conduct of the trial Judge, the applicant does not expect free, fair and impartial trial in the case in hand unless the case is transferred to another CNS Court.
4. Conversely, Khawaja Shamsul Islam, learned counsel for the respondent, at the outset challenged the very maintainability of the application on the ground that same has been filed by an incompetent and unauthorized person. According to the learned counsel, the case pertains to CNS Act, which is a special Statute and under section 50 of the Act, only Special Prosecutor appointed by the Federal Government is competent to appear and file transfer application. Per learned counsel, the instant application for transfer was filed through, Akhtar Hussain, who is neither complainant nor I.O. In the case, therefore, he was not competent/authorized to file it and the same merits no consideration. The learned counsel has also referred to sections 48 and 49 of the Act read with section 417, Cr.P.C. And submitted that even Acquittal Appeal could be filed by Special Prosecutor or anyone authorized in this behalf. He has further contended that since the applicant is a stranger in these proceedings, therefore, instant Transfer Application is liable to be dismissed. He has lastly contended that in view of the dicta laid down by the honourable Federal Shariat Court in the case of ABDUR RAZZAQ AAMIR V. FEDERAL GOVERNMENT OF ISLAMIC REPUBLIC OF PAKISTAN reported in PLD 2011 FSC 1, as reproduced hereunder, this Court has no jurisdiction to entertain this Application:-- "vi. That the portions of sections 48 and 49 of the Control of Narcotic Substances Act, 1997 (Act XXV of 1997) whereby the High Court has been empowered to:-
(a) Entertain appeals against the order of a Special Court consisting of a Sessions Judge or an Additional Sessions Judge and
(b) Transfer within its territorial jurisdiction any case from one Special Court to another Special Court at any stage of the proceedings, are violative of the provisions contained in Chapter 3A of Part VII of the Constitution because the offences envisaged by Act XV of 1997 are covered by the term Hudood. Both the sections are consequently declared violative of Article 203DD of the Constitution. The portion which contains the words High Court should be deemed to be substituted by the words Federal Shariat Court in both the above mentioned sections."
5. However, on a query, the learned counsel for the respondent has stated that he cannot make a statement whether the Federal Government or anyone aggrieved with the aforesaid Judgment of the Federal Shariat Court has filed an Appeal before the Honourable Supreme Court.
6. Heard.
7. Upon a perusal of section 49 of the CNS Act, 1997, it appears that where more than one Special Court is set-up by the Federal Government within the territorial jurisdiction of a High Court, the High Court may transfer any case at any stage from one Special Court to another Special Court pursuant to section 526, Cr.P.C. However a subsection (d) and (e) to section 526 provides that the power of transfer can be exercised for the general convenience of the parties and also to meet the ends of justice. Moreover, section 526, Cr.P.C. Provides that High Court may transfer case or itself try it whenever it is made to appear to the High Court that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto. Subsection (3) to section 526, Cr.P.C. Provides that High Court may act either on the report of the lower Court, or on the application of a party interested, or on its own initiative while subsection (e) to section 1 provides that the High Court may transfer case when such an order is expedient for the ends of justice. Therefore, from the perusal of above provisions of section 526 there is no ambiguity that the High Court can exercise such powers of its own initiative or in the interest of justice.
8. Section 50 of the CNS Act relates to Special Prosecutor and provides that the Federal Government may appoint a person who is an Advocate of a High Court to be Special Prosecutor on such terms and conditions as may be determined by it and any person so appointed shall be competent to conduct proceedings under this Act before a Special Court and .If so directed by the Federal Government to withdraw such proceedings. Subsection (2) to section 50 ibid provides that in absence of Special Prosecutor appointed under subsection (1). For any reason or if he is unable to conduct proceedings before the Special Court, the proceedings shall be conducted, by such person as may be authorized in this behalf by the Special Court. Perusal of section 50 shows that only Special Prosecutor appointed by the Federal Government is competent to appear and conduct proceedings before the Special Court. Admittedly, Mr. Muhammad Siddiqui Mirza, Advocate was neither appointed as Special Prosecutor by the Federal Government to conduct proceedings under this Act nor he has so claimed.
9. Reverting to the contention of the learned counsel for the respondent that in view of the Judgment of the Federal Shariat Court reported in PLD 2011 FSC 1; this Court has no jurisdiction in the matter, it may be noted that against the very Judgment of the honourable Federal Shariat Court, under Article 203-F of the Constitution, Civil Shariat Appeals Nos.1 to 3 of 2011 have been filed before the honourable Supreme Court of Pakistan. Perusal of proviso to Sub-Article (2) of Article 203-D provides that no decision of the Federal Shariat Court shall be deemed to take effect before the expiration of the period within which an appeal therefrom may be preferred to the Supreme Court or where an appeal has been so preferred, before the disposal of such Appeal. Admittedly, against the very reported Judgment of the Federal Shariat Court, Civil Shariat Appeals have been preferred, therefore, decision of the Shariat Court shall not take effect until disposal of such Appeals. Therefore, this Court has jurisdiction and unfettered powers to entertain transfer application in terms of section 49 of the CNS Act read with section 526, Cr.P.C.
10. In view of the foregoing discussion, I am of the opinion that proviso to section 49 of the CNS Act clearly provides that where more than one Special Court is set up by the Federal Government within the territorial jurisdiction of a High Court, the High Court may transfer any case at any stage from one Special Court to another Special Court in accordance with section 526 Cr.P.C The provisions of the Act does not fetter the jurisdiction or power of this Court to transfer cases from one Special .Court to the other except to the extent that such power is to be exercised in accordance with section 526, Cr.P.C. Subsections (d) and (e) of which provides that the power of transfer can also be exercised in order to meet the ends of justice. Reliance in this regard can be placed on the cases of RIAZ-UD-DIN V. THE STATE reported in 2001 MLD 1771 and the case of JOHN BERNARD SENDER V. STATE reported in A PLD 2004 Karachi 136.
11. Upshot of the above discussion is that, pursuant to provisions of section 50 of CNS Act, read with section 526(1)(e) and subsection (3), file of Special Case No,197 of 2011 culminating from F.I.R.
No,.PCU/Misc/15/2010-HQ pending in the court of Special Judge, CNS-1; Karachi s transferred to the court of Special Judge, CNS-II, Karachi, The trial Court is directed to conclude the trial within three months from the date of this order.
' This Criminal Transfer Application is disposed of in above terms.