' MUHAMMAD IQBAL KALHORO, J.---This order proposes to dispose of Criminal Revision Application No,D-137 of 2014 filed by the applicant/accused Muhammad Soomar Mangrio against the impugned order dated 18-6-2014 passed by the learned Judge, Anti Terrorism Court, Mirpurkhas on his application under section 23 of ATA, 1997 in Crime No, 12 of 2014 under sections 324, 353, 216-A, P.P.C.Read with sections 6/7 of ATA of Police Station Ghulam Nabi Shah, District Umerkot, whereby said application was dismissed.
2. The concise resume of the facts germane to the disposal of present criminal revision application are that the complainant SIP Muhammad Hassan Rahmoon posted as S.H.O. Police Station Ghulam Nabi Shah lodged an F.I.R. On 13-6-2014 at 2000 hours alleging therein that he was on patrol duty along with his subordinate staff as per DD entry No,8 dated 13-6-2014. During patrolling, he received spy information that an accused by name Muhammad Hanif involved in Crime No,9 of 2013 of Police Station Ghulam Nabi Shah under sections 324, 353, 412, 34, P.P.C., along with his accomplices was staying with Muhammad Umar in mango garden of village Dodo Mangrio. On such information the complainant party reach the pointed place where they observed every one Muhammad Hanif armed with K.K. Muhammad Umar having K.K. Aijaz in possession of pistol, Abdul Hakeem holding pistol and one unknown person who was also armed with pistol were present who in order to commit murder of police party fired at them, in retaliation the complainant party is said to have fired in their defence. It is further alleged that after some time complainant party was able to arrest the present applicant/accused along with K.K. Whereas the other accused are said to have made their escape good. Such memo of recovery and arrest of the accused was prepared at the spot, whereafter the applicant was brought at Police Station stated above where the F.I.R.
(supra) was registered against him.
3. The applicant, while the case was under investigation, moved the application under section 23 of ATA 1997 wherein he prayed to return the file to the police for presenting the same before the ordinary Court.
4. The learned A.T.C. Court, Mirpurkhas after hearing the learned counsel appearing for the applicant rejected the application vide impugned order, which for ready reference is reproduced hereinbelow:-- "Heard Mr. Muzufar Ali Leghari, learned counsel for the applicant accused Muhammad Umar. Case is under Investigation. Application rejected and is not entertainable."
5. Feeling aggrieved by the impugned order, the applicant preferred the present criminal revision application, which came up for hearing before us. We after hearing the parties disposed of the criminal revision application through short order dated 2-7-2014, wherein we observed as under:-- "For the reasons to be recorded later on, the impugned order is hereby set aside. The trial court is directed to decide the fate of the report submitted under section 173, Cr. P. C. By considering the applicability of sections pertaining to terrorism as enshrined in section 6 of the Anti Terrorism Act, 1997."
6. During hearing of the instant application, learned counsel for the applicant argued that impugned order is illegal, void and against the well-settled principle of law. Per learned counsel, the learned trial Judge failed to appreciate the legal position that the offences alleged against the applicant/accused do not fall within the meaning of terrorism contemplated under section 6 of ATA. Learned counsel also argued that his application under section 23 of ATA was summarily dismissed by the learned trial Court as even no notice was given to the learned Prosecutor to submit his opinion regarding applicability of sections 6/7 of ATA.
7. Learned D.P.G. Appearing on behalf of the State very candidly conceded to the position that the application moved by the applicant under section 23 of ATA was summarily dismissed without assigning any reason thereto for arriving at a conclusion that the same was not entertainable.
Learned D.P.G. Also stated that in fact notice of the said application ought to have been given to the learned prosecutor to submit his opinion with regard to the application of sections 6/7 of ATA 1997. Lastly, he requested that the impugned order be set aside and case be remanded back to the learned trial court for decision afresh on the application moved by the applicant under section 23 of ATA.
8. We have heard learned counsel for the applicant as well as learned D.P.G. On behalf of the State and perused the material available on record.
9. The perusal of record reveals that the application for transfer of case in terms of section 23 of ATA 1997 was filed by the applicant as is evident from the impugned order, before the submission of the challan in the Anti-Terrorism Court Mirpurkhas. (For short the court). It is conducive to reproduce section 23 of ATA. 1997 for ready reference and elucidation:-- "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 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. Per vires of section 23 of ATA, 1997 the question relating to determination of jurisdiction by the court ensues its first taking cognizance of the offense. In other words application of mind by the court to the facts of the case to find out as to what offense has been A committed by poring over the documents presented to it by the prosecution at the time of submission of challan shall be had first, which shall then follow a formation of opinion by the court vis-a-vis nature of the offence as to be either scheduled one or not. In case the opinion of the court varies with that of Investigation Officer in respect of the offence being scheduled one, it shall, notwithstanding it has no jurisdiction to try such offence, transfer the case to the court having jurisdiction. The words 'AFTER TAKING COGNIZANCE OF AN OFFENCE' (underlining is mine) appearing in section 23 of the Act relate to such scheme in the minds of legislatures. However such scheme does not correlate with the developed bench mark of the judicial approach based on the understating of the law whereby the courts determine question of jurisdiction simultaneously with taking cognizance of the offence at the time of presentation of challan.
11. According to Black Law Dictionary the word cognizance" means a court's right and power to try and to determine cases; jurisdiction 2. The taking of judicial or authoritative notice. The Oxford English Reference Dictionary defines cognizance as '
3. Law the right of a court to deal with a matter.
12. In the case of MANZOOR AKBAR TURK v. Raja ISHAQ HUSSAIN (2008 M LD 728), in para-12 it is observed as follows:-- "The word cognizance has not been defined in Cr.P.C. Cognizance is application of mind by the court on the basis and circumstances of the case. A court taking cognizance of offence as to consider (sic):
(i) Whether some offences falling within its jurisdiction is made out or not?
(ii) Whether offence is committed in its territorial jurisdiction?
(iii) Who are the persons responsible for the commission of offence?
(iv) Whether in Courts' opinion, sufficient grounds are existing for proceeding with the trial?
13. In the case of ALI ASGHAR v. Raja KHUSHAL KHAN 1982 PCr.LJ 415 wherein it has been held in para- 4 as under:- "Expression 'taking cognizance of offence has not been defined in the Code. In its broad and literal sense it means taking notice of an offence and would include intention of initiating the judicial proceedings against the offender in respect of that offence or taking steps whether there is any basis .For initiating judicial proceedings or for other purposes. It is conscious application of the mind by the court to the facts stated in the report by the police which amounts to taking cognizance of the offence."
14. The contours which, thus, emerge from above discourse leave no room for any explanation except to infer that taking cognizance and forming opinion regarding an offence to be either scheduled one (in that case determination of authority by the Court to try the offence) or not cannot be treated as two separate acts which are to be performed by the courts at different times.
The court takes cognizance of a given offence, only when it is without any doubt with regard to its jurisdiction to try the offence by examining the material presented to it in terms of section 173, Cr.P.C. In this regard, the honourable Supreme Court in a case of NASIR ABDUL QADIR v. STATE (2003 SCM R 472) has scholarly observed in para-5 as under:- "It is well-entrenched principle of law that the question of jurisdiction can be determined on the basis of F.I.R. And other material which is reproduced by the prosecution at the time of challan.
The court has to decide on the basis of such material whether cognizance is to be taken or not."
15. The law, however, provides for one exception that a magistrate taking cognizance of offence triable exclusively by a Court of Session shall without recording the evidence send the case to Court of Session for trial in terms of subsection (3) to section 190 Cr.P.C. Such exception is entirely cognate with the design contemplated under section 193 Cr.P.C. Wherein the Sessions Court is barred to take cognizance of offence as a court of original jurisdiction unless the case has been sent to it under section 190, Cr.P.C. Reproduction of sections 190 and 193, Cr.P.C. Are relevant hereinbelow:--
190. Cognizance of offence by Magistrate.---"Except as hereinafter provided any District Magistrate or a Sub-Divisional Magistrate or any other Magistrate specially empowered in this behalf may lake cognizance of an offence:
(a) Upon receiving a complaint of facts which constitute such offence:
(b) Upon a report in writing of such facts made by any police officer:
(c) Upon information received from any person other than police officer, or upon his knowledge or suspicion , that such offence has been committed.
(2) The Provincial Government may empower any Magistrate to take cognizance under subsection (1) clause (a) or clause (b) or offences for which he may try or send to the Court of Session for trial: ' Provided that in the case of Judicial Magistrate the Provincial Government shall exercise this power on the recommendation of the High Court;
(3) A Magistrate taking cognizance under subsection (1) of the offence triable exclusively by a Court of Session shall, without recording any evidence, send the case to the Court of Session for trial.
193. Cognizance of offences by Courts of Session.---(1) Except as otherwise expressly provided by this Court or by any other law for the time being enforced, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction [unless the case has been sent to it under section 190 subsection (3)].
16. What, Chen, follows the above discussion leads to an affirmed opinion that the Court is competent to make up its mind as to whether the offence is scheduled one or not at the time of taking cognizance of offence on the basis of material submitted to it in shape of challan. In case the court decides in affirmative, it shall proceed with the matter in accordance with law. It does not however restrict the jurisdiction of the court to hold otherwise at a subsequent stage, but the exercise of jurisdiction to transfer the case to a regular Court can he resorted to by the court on the basis of (any) new material brought before it either by prosecution or defence through evidence and after affording an opportunity of hearing to both the parties. The scheme of law in fact, in terms of section 23 of ATA 1997 appears to have enjoined upon the court to minutely examine all the material presented to it at the time of challan which has been collected during the investigation to form its firm opinion at that initial stage with regard to nature of the offence without hearing either party. A formal application to the court by either party to invoke its mandate under section 23 of the Act has never been the requirement of law.
17. Examined in the above context the impugned order appears to, have been passed in haste. It also does not reconcile with the judicial norms and requirement of law whereby every conclusion drawn in the order/decision must be supported by the reasons justifying it on legal plane. The court, in the present case, could have waited and postponed the decision on the application of the applicant till the submission of challan to form its opinion that the offence is or is not scheduled one in terms of section 23 of the Act, instead of dismissing it in hasty manner. Rejecting an application by which the very jurisdiction of the court was called into question by considering it not entertainable" without assigning any reason thereto, the court acted unwittingly and against the principle laid down by the superior courts for guidance appertaining to mode of delivery of order/judgment. Besides it is also violative of section 367, Cr.P.C.
18. Under these circumstances we are of a firm view that the impugned order is not sustainable under the law, which resultantly is set aside. The application under section 23 of ATA 1997 filed by the applicant shall be deemed to be pending before the court, which shall decide it afresh by evaluating the material submitted to it at the time of presentation of the challan is compliance of section 173, Cr.P.C.
19. These are the reasons of ours short order dated 2-7-2014.