' NOOR-UL-HAQ N. QURESHI, J.---Through the instant writ petition, the petitioner has prayed that impugned order dated 7-2-2014 passed by the learned Sessions Judge West, Islamabad be set aside and the case be sent to the Anti Terrorism Court for trial.
2. Facts of the case are that petitioner is the complainant of F.I.R. No.302 dated 10-6-2012 under sections 365-A/337F(i)/148/149/337H(2), P.P.C., Police Station Margala, Islamabad lodged against the abduction of his brother. During the course of investigation, it transpired from the statements of the abductee recorded under section 161, Cr.P.C., as well as under section 164, Cr.P.C. That section 365A, P.P.C. Was attracted, thereupon, the Investigating Officer after obtaining legal opinion from the Law Officer, inserted section 365-A, P:P.0 in the above F.I.R. Thereafter, investigation was transferred to CIA, which was challenged by the accused in writ petitions before this Court seeking reinvestigation of the case. Later on, Sultan Azam Taimoori, DIG was directed to reinvestigate the matter and submit report within stipulated period. During the course of reinvestigation, section 365-A, P.P.C. Was deleted and again section 365, P.P.C. Was inserted. After submission of challan, the learned trial Court framed charge against all the accused under sections 365/337F(i)/148/149/337H(2), P.P.C. And fixed the case for prosecution evidence. Meanwhile, an application was moved by the petitioner under section 227, Cr.P.C. For addition of section 365-A, P.P.C., which was accepted vide order dated 15-1-2014 by the learned Magistrate, Ist Class-West, Islamabad, who while observing that offence under section 365-A, P.P.C. Was attracted sent the case to the learned Sessions Judge, who vide his order dated 7-2-2014 for its onward submission to the learned Special Court for Anti-Terrorism. The learned Sessions Judge vide impugned order dated 7-2-2014, while considering it as reference, responded it in negative and sent back the case to the learned Judicial Magistrate for its adjudication. Feeling aggrieved by the said order, the petitioner has filed instant writ petition.
3. Learned counsel for the petitioner has argued that it was not a reference, but order passed by the learned Judicial Magistrate wrongly inferred to be a reference entertained by the learned Sessions Judge. 'Therefore, he while raising question with regard to the authority of learned Sessions Judge, by virtue of law, returned it back to the concerned Magistrate. Likewise, learned counsel for the petitioner agitated the order passed by the learned Magistrate for referring the matter to the learned Sessions Judge for appropriate orders. He, in this regard, argued that learned Magistrate should have either returned back the final report moved to him under section 173, Cr.P.C.
For its onward submission to the concerned trial Court i.e. Anti-Terrorism Court on observing the application of section 365-A, P.P.C. The said section falls within the exclusive domain of Anti- Terrorism Court.
4. I have heard the arguments and have gone through the relevant record and provisions of law.
5. The learned Judicial Magistrate in view of scheme of law is not empowered to include any section, which is exclusively triable by any A other Special Court by exercising powers vested to it under section 227, I Cr.P.C. The learned Judicial Magistrate has passed the order with detailed discussion observing the application of section 365-A, P.P.C. Falling within the exclusive jurisdiction of learned Anti-Terrorism Court nor he was supposed to transmit it to the learned Sessions, Judge for any appropriate orders. The entire fate of such situation has to be decided by the learned Magistrate on its own. By virtue of law, if at the time of framing of charge, which is considered to be extract of allegation of prosecution, if learned Magistrates observed application of any section of P.P.C. Or any other law triable exclusively by the Court of Sessions Judge, he may send it to the Court of Session for its trial in compliance with sections 190 and 193, Cr.P.C. However, the learned Magistrate in his opinion, if observed applicability of some provisions of law, which is neither triable by him nor by the Court of Session exclusively, rather it is exclusively triable by the Special Judge, Anti-Terrorism Court, he may return the F.I.R. And final report under section 173, Cr.P.C. To the prosecution for its onward submission before the court concerned. The Magistrate by virtue of section 227, Cr.P.C. Is not empowered to add any section by passing an order on the application moved by any party C therefore the learned Sessions Judge, has rightly observed the legal infirmity in the order passed by the learned Magistrate.
6.. It is further observed that sections 366 and 367, Cr.P.C. Provide procedure of applying Section with regard to any offence. When during course of investigation, it is divulged to a Magistrate that he cannot try any case, he may refer such case, therefore, learned Sessions Judge has rightly observed that the Magistrate should have considered such aspect after examining the evidence.
As provided by section 190, Cr.P.C., the Magistrate has to take cognizance of the offence and in case of submission of final report under section 173, Cr.P.C. By the police, if any offence is exclusively triable by the Court of Session, same has to be transmitted in view of section 190(2), Cr.P.C.
Apparently, the forbidden clause is provided as envisaged by section 193, Cr.P.C. Regarding bar upon Sessions Court to take cognizance of any offence directly. Likewise, the Sessions Judge in any case, either transmitted to it as in the instant case, the Magistrate cannot take cognizance of that offence which is not triable by him nor he can entertain it. Though section 23 of the Anti-Terrorism Act provides a procedure for transfer of the case to the court of ordinary jurisdiction, but same again could not be done neither bypassing procedural law nor the Anti-Terrorism Court is empowered to transfer the case directly to the Court of Sessions or Additional Sessions Judge without following the procedure laid, down under sections 190(3) and 193, Cr.P.C. Likewise, Sessions Judge has no authority by virtue of law to transfer or send the case to any court constituted under the Anti-Terrorism Act, 1997. In both the cases or circumstances when occur before either of .The Court, the Court has to follow the procedure laid down by Criminal Procedure Code or if any provision is provided by the special enactment. Under the circumstances, in all such type of cases, respective courts have no alternate except to return back the F.I.R. And final report submitted by police to the F prosecution or concerned I.O. For the purpose of its onward process by presenting the same before the court of competent jurisdiction.
6(sic.) I am of the opinion that learned Sessions Judge has rightly answered the reference in negative and sent it back to the concerned Magistrate for its further adjudication in accordance with law. The learned Magistrate shall follow such observations made by learned Sessions Judge which are quite legal and requires no interference.
7. In view of above, instant writ petition being without any force is hereby dismissed in limine.