' QAZI FAEZ ISA, CJ.---This transfer application has been submitted on behalf of General (R.) Syed Pervez Musharraf through his counsel Messrs Muhammad Ilyas Siddiqui and Zeeshan Riaz Cheema, Advocates, seeking to have the case pertaining to the murder of the late Mr. Muhammad Akbar Khan Bugti (F.I.R. No,26 of 2009 lodged at Police Station Dera Bugti) pending before the Anti- Terrorism Court-I Quetta to be transferred to the Anti-Terrorism Court at Islamabad. The application has been submitted under section 28(1) of the Anti-Terrorism Act, 1997 (hereinafter "the Act").
2. The learned counsel for the petitioner states that there are serious threats to the life of the petitioner from "Jehadi Tanzeems" and "to manage [his] security is not possible", therefore, the pending case merits transfer pursuant to section 28(1) of the Act. Learned counsel has referred to sections 2(k), 13, 15 and 28(1) of the Act, to a Division Bench judgment of the Allahabad High Court of India, Smt. Razia v. The State (AIR 1957 Allahabad 340) and a judgment of the Indian Supreme Court, Jayendra Saraswa thy Swamigal v. State of Tamil Nadu (2005 Crl.LJ 4626).
3. To appreciate the contention of the learned counsel section 28(1) of the Act is reproduced hereunder:-- "28. Transfer of cases. (1) Notwithstanding anything contained in this Act the Chief Justice of High Court concerned may on the application of any party to the proceedings or on the application of the Federal Government or a Provincial Government, if he considers it expedient 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 another Anti-Terrorism Court within or outside the area."
' Learned counsel states that the Allahabad High Court judgment defines the word area and as such is helpful in determining the scope of section 28(1), which according to him enables the High Court to transfer a case from an Anti-Terrorism Court situated within the province to another Anti- Terrorism Court in any other 'area' of Pakistan. To advance his contention reference was made to section 2(k) of the Act, reproduced hereunder: "2(k) 'High Court' means the High Court having territorial jurisdiction in respect of the area for which an Anti-Terrorism Court has been established; "
' Learned counsel referred to the Indian Supreme Court decision to show that under certain circumstances the case may be transferred from one High Court to another. It was lastly stated that the Government of Balochistan had itself earlier sought transfer of the case.
4. Mr. Shai Haq, Assistant Advocate General ("AAG") on behalf of the Advocate General and Government of Balochistan opposes the application. Learned A.A.-G. States that under section 28(1) of the Act a case pending before one Anti-Terrorism Court can be transferred to another Anti- Terrorism Court within the province, but a case cannot be transferred to an Anti-Terrorism Court outside the province and such power neither vests in the Chief Justice nor in the High Court. He further states that the Government of Balochistan will provide complete security to the petitioner to ensure that he gets a fair trial and that there is a sub-jail of the Anti-Terrorist Force situated in Quetta Cantonment, which is completely safe.
5. Mr. Suhail Ahmed Rajput, Advocate on behalf of the complainant supports the contention of the learned A.A.-G. He further states that whenever the petitioner was attacked it was either at Rawalpindi or its twin-city, Islamabad, therefore to contend that Quetta, Balochistan would be any more dangerous for the petitioner than Islamabad is without substance. According to him terrorists have assassinated at Rawalpindi-Islamabad a number of known personalities, including Mohtarma Benazir Bhutto, a former Prime Minister Pakistan, Mr. Salman Tasir, a sitting Governor of Punjab, Shahbaz Bhatti, a sitting Federal Minister, and Lt. General Mushtaq a serving General of Pakistan Army. He also referred to a judgment of Division Bench of the Sindh High Court, Ali Dur v.
Qalandar Bux (2012 YLR 309) and the case of Ahmad Omar Saeed Shaikh v. State (2002 SCM R 1562).
6. I inquired from the learned counsel for the petitioner whether the petitioner had been subjected to any attack, and if so, where? Mr. Mohammad Ilyas Siddiqi stated that the petitioner was subjected to four attacks, respectively at Jhanda Chichi, at Leh Nallah, a missile attack and an attack near a petrol pump, all of which he stated took place within the precincts of district Rawalpindi.
7. There are two questions that need to be addressed, firstly, whether under section 28(1) of the Act the Chief Justice of a High Court can transfer a case pending before an Anti-Terrorism Court in the province to an Anti-Terrorism Court outside the province and, secondly, whether in the facts and circumstances the pending case against the petitioner should be transferred for trial to the Anti- Terrorism Court at Islamabad. To appreciate the contention of the learned counsel it would be useful to also reproduce the other provisions of the Act referred to by him, respectively sections 13 and 15.
"13. Establishment of Anti-Terrorism Court..
(1) For the purpose of providing for the speedy trial of the cases referred to in subsections (2) and
(3) of section 39-A, of scheduled offences, the Federal Government, or if so directed by the Government, the Provincial Government may establish by notification one or more Anti-Terrorism Courts in relation to each territorial area as specified by the High Court concerned.
(2) Where more Anti-Terrorism Courts than one have been established in any area, the Government in consultation with the Chief Justice of the High Court shall designate a judge of any such Court to be an administrative judge and all cases triable under this Act pertaining to the said area shall be filed before the said Court and such judge may either try the case himself or, assign any case, or cases, for trial to any other Anti-Terrorism Court at any time prior to the framing of the charge. The cases shall be assigned to a Court one case at a time: ' Provided that in order to ensure that the time of the Court is not wasted if for some reason a given case cannot proceed more than one case can be assigned to it at any time or from time to time.
(3) In respect of a case assigned to a Court under subsection (2), all orders made or proceedings taken before the assignment shall be deemed to have been made or taken by the Court to which the case has been assigned.
(4) Notwithstanding anything contained in subsection (2) and subsection (3), the Federal Government or if so directed by the Government, the Provincial Government, shall in addition to the existing Anti-Terrorism Courts or such other Anti-Terrorism Courts as may be established in the area, establish one such additional Anti-Terrorism Court under this Act at the Principal seat of the each High Court and appoint a Judge of such High Court as a judge of Anti-Terrorism Court in consultation with the Chief Justice of the High Court concerned, and where a judge of High Court is appointed as a Judge for any area under this Act, he shall be the administrative Judge for that area and such administrative Judge, in addition to the powers exercisable under this Act, either suo motu or on the application of any party, at any stage of the proceedings whether before or after the framing of charge for sufficient cause including as mentioned in subsection (1) of section 28, transfer, withdraw or recall any case pending before any other Anti-Terrorism Court in that area and may either try the case himself or make it over for trial in any other Anti-Terrorism Court in that area.
(5) The Anti-Terrorism Court to which a case is transferred or recalled for trial under subsection (4), shall proceed with the case from the stage at which it was pending immediately before such transfer or recall and it shall not be bound to recall or rehear any witness who has given evidence and may act on the evidence already recorded."
"15. Place of sitting.
(1) Subject to subsections (2) and (3), an Anti-Terrorism Court shall ordinarily sit at such place or places including Cantonment area or jail premises as the Government may, by order, specify in that behalf.
(2) The Government may direct that for the trial of particular case the Court shall sit at such place including the place of occurrence of an offence as it may specify.
(3) Except in a case where a place of sitting has been specified under subsection (2), an Anti- Terrorism Court may, if it considers it expedient or desirable so to do either suo motu or on the application of the public prosecutor sit, for holding the trial of a case at any place including a mosque other than the ordinary place of its sitting."
8. The Act is a special Federal law extending to the whole of Pakistan and envisages setting up of Anti-Terrorism Courts in respect of, "each territorial area specified by the High Court concerned"
(subsection (1) of section 13 of the Act). An Anti-Terrorism Court may sit at any location, "including cantonment area or jail premises" (subsection (1) of section 15 of the Act). Section 2(k) of the Act identifies the High Court to mean, "the High Court having territorial jurisdiction in respect of the area for which an Anti-Terrorism Court has been established." Subsection (1) of section 28 enables the, "Chief Justice of High Court concerned" to "transfer any case from one Anti- 'Terrorism Court to another Anti-Terrorism Court within or outside the area."
9 . The power of the Chief Justice to transfer a case from one Anti-Terrorism Court to another such court, within the territorial jurisdiction of the concerned High Court, is not disputed. However, the question for consideration herein is whether the Chief Justice can transfer a case beyond the territorial jurisdiction of the High Court of Balochistan, and, as sought in this application, to the Anti- Terrorism Court Islamabad. Learned counsel for the petitioner states that the subsection (1) of section 28 concludes by using the words, "within or outside the area", therefore, the Chief Justice is empowered to transfer a case beyond the territorial jurisdiction of the High Court of Balochistan.
However, such an interpretation is contrary to the provisions of the Act. The words "within or outside the area" envisage either 'within' the area or 'outside the area', which means, if in a particular 'area' there are more than one Anti-Terrorism Courts (as in the case of Quetta) the case could be transferred from one such court to the other (and thus, 'within' the area), whereas the words 'outside the area' mean from one Anti-Terrorism Court to any other such court `outside the area'
(such as from Quetta to Khuzdar or Sibi). This interpretation is reinforced with subsection (1) of section 13 which enables the establishment of, "one or more Anti-Terrorism Courts in relation to each territorial area as specified by the High Court concerned." The 'territorial area' lies within the jurisdiction of the High Court as is made clear by the use of the words "High Court concerned." The definition of the 'High Court' contained in Section 2 (k) of the Act also does not advance the petitioner's case, since it stipulates that the High Court "means the High Court having territorial jurisdiction in respect of the area for which an Anti-Terrorism Court has been established." The power to transfer cases contained in section 28(1) originally vested in the High Court, but vide Ordinance No.VI of 2002 such power was granted to "the Chief Justice of High Court concerned."
Section 2(k) refers to the "territorial jurisdiction in respect of the area for which an Anti-Terrorism Court has been established" [emphasis added]. Islamabad, needless to state, does not fall within the territorial jurisdiction of the High Court of Balochistan nor is an area in respect whereof the Chief Justice of Balochistan can exercise his authority. The word 'area' therefore cannot be construed to mean an area beyond the territory of the High Court.
10. The Allahabad judgment, cited by the learned counsel for the petitioner, is not helpful in determining the present question as it involved the interpretation of a municipal bye-law, that prohibited. `public prostitutes' from residing or keeping brothels within the limits of of the Indian Criminal Procedure Code, which is a specific power vested in the Supreme Court of India to transfer a case inter alia from one High Court to another High Court. Jurisdiction, whether to try a case or to transfer a case, is bestowed by law; the Act does not grant the Anti-Terrorism Court at Islamabad to conduct the case nor does it vest any jurisdiction in the Chief Justice of the High Court to transfer it to Islamabad.
11. Having determined that the Chief Justice of the High Court cannot transfer a case beyond the jurisdiction of the High Court concludes the matter, but, since learned counsel has raised the question that it would not be safe to proceed with the trial in Balochistan, it would be appropriate to consider this aspect too. Admittedly all the stated attacks on the petitioner took place within the area of Rawalpindi (the twin city of Islamabad); therefore, it cannot be asserted that Quetta would be any more dangerous for the petitioner. In any event it is the responsibility and duty of the Government to ensure the safety and security of an under trial prisoner who is in custody.
' Therefore, for the aforesaid reasons this transfer application is dismissed.