' SAYYED MAZAHAR ALI AKBAR NAQVI, J.---With the concurrence of learned counsel for the .Parties, the instant petition is being dealt as a Pakka Case.
2. Through the instant criminal revision petition filed in terms of sections 435/439, Cr.P.C. Read with section 561-A, Cr.P.C. The petitioner has assailed the vires of impugned order dated 5-1-2013; whereby the learned Judge, Anti-Terrorism Court No.1, Rawalpindi had declined the application of the petitioner for conducting trial of case F.I.R. No.471, dated 27-12-2007, offence under sections 302, 324, 435, 436, 120-B, 109, P.P.C., read with sections 7, 21(i) and 21(c) of the Anti-Terrorism Act, 1997, read with and Section 4/5 of Explosive Substances Act, 1908, registered at Police Station City Rawalpindi.
3. Facts of the case succinctly required for determination of the petition in hand are that in the year 2007 the frosty evening of 27th day of December, proved horrible for the people of Pakistan when riots emerged almost throughout Pakistan consequent upon an unfortunate incident wherein the former twice elected Prime Minister of Pakistan, who had the honour of being the first lady Prime Minister in the history of the Muslim World, received serious injuries at the hands of assailants and subsequently she succumbed to the injuries regarding which case bearing F.I.R. No.471, dated 27- 12-2007, offence under sections 302, 324, 435, 436, 120-B, 109, P.P.C., read with sections 7, 21(i) and 21(c) of the Anti-Terrorism Act, 1997, read with and section 4/5 of Explosive Substances Act, 1908 was registered at Police Station City Rawalpindi. It is worth mentioning that the case remained under investigation for fairly extended period during which, one after the other seven reports were prepared under section 173, Cr.P.C. And enrouted to the learned trial court where trial of said case is pending before learned Anti-Terrorism Court No.1, Rawalpindi. Perusal of record further reveals that the calendar of witnesses consists of more than hundred prosecution witnesses and despite elapse of more than five years, statements of only nineteen, prosecution witnesses have been recorded so far, out of which cross-examination upon three prosecution witnesses is yet to be conducted. It is also pertinent to mention here that Ahmed Masood Janjua (P.W.14) was examined way back on 3-3-2012, however, cross-examination upon him has not been conducted so far.
During this period primarily an application was filed by the special prosecutor appointed by the government to prosecute this case for expediting the trial, which was declined by the learned trial court as such the impugned order was assailed before this Court through Criminal Revision No.212 of 2012; wherein vide order dated 17-12-2012 the learned trial court was directed to expedite the trial proceedings, however, as per contents of the instant petition, the trial is still pending adjudication and the case is being fixed on every Saturday in disregard to the direction issued by this Court as such no plausible progress has been shown mainly due to nonappearance/non-coperation of the learned defence counsel. Thereafter another application was filed before the learned trial court for expediting the trial proceedings in spirit of order dated 17-12-2012, which was also declined by the learned trial court in terms of order dated 5-1-2013 resultantly the said order has been questioned through the instant petition.
4. Learned Special Prosecutor while addressing the Court submits that nevertheless it is one of the high profile cases in the history of Pakistan; wherein two times elected Prime Minister of Pakistan was done to death in a reckless/brutal manner, however, the learned trial court is adjudicating the case in an ordinary/casual style/fashion although the challan of the instant case stands submitted in the Anti-Terrorism Court (meant for speedy disposal of the cases) and despite elapse of more than five years no plausible progress in conclusion of the trial has been shown. It is further argued that the impugned order dated 5-1-2013, passed by learned trial court is illegal, unlawful and the same is not sustainable in the eyes of law as according to provisions of section 19(7) of the Anti- Terrorism Act, 1997 (hereinafter to be referred as the Act), it stands mentioned that all the cases triable under the Act shall be adjudicated on day-to-day basis and what to speak of case in hand, which is not only of sensitive nature rather it carries international importance. Learned Special Prosecutor further urges that in utter disregard to the explicit provisions of the Act, 1997, the learned trial court has been seconding the dilatory tactics being adopted by the accused side. Finally prayer has been made for direction to the learned trial court to expedite the trial proceedings of the case in the true spirit of the Anti-Terrorism Act, 1997.
5. Learned counsel representing the respondents while supporting the impugned order vehemently opposes the contentions raised by learned special prosecutor. Malik Muhammad Rafique Khan Advocate for respondents Nos.7 and 8 while taking lead on behalf of all the learned counsel for rest of the respondents submits that as a matter of fact it is the prosecution, who is not prosecuting the case in the spirit of specific provisions of the Act. Learned counsel vehemently contends that on one side the prosecution is terming it as the most high profile case of the history of Pakistan and on the other hand, in disregard to the explicit provisions of the Act, one after the other challans are being submitted in the learned trial court and now its tally has enhanced to seven. Adds that as after submission of every new challan a fresh charge is to be framed, therefore, this fact has delayed the trial proceedings. It is further argued that in the trial next date is fixed as 19-2-2013 and the accused are ready to cooperate with the learned trial court even if the trial is conducted on day to day basis.
6. We have given our anxious consideration to the arguments advanced from both sides and gone through the record available on file.
7. This Court is conscious of the fact that supremacy of law lies in equity between all the citizens as this aspect has been enshrined in the Constitution of Islamic Republic of Pakistan, 1973 by inserting Article 25. However, case F.I.R. No.471, dated 27-12-2007, offence under sections 302, 324, 435, 436, 120-B, 109, P.P.C., read with sections 7, 21(i) and 21(c) of the Anti-Terrorism Act, 1997, read with and section 4/5 of Explosive Substances Act, 1908, registered at Police Station City Rawalpindi, out of which the instant petition has arisen carries significant importance in which the first lady Prime Minister of the. Muslim World was assassinated in a reckless/brutal manner and after submission of challan, the trial is pending adjudication before Anti-Terrorism Court No.1, Rawalpindi constituted under the Act, 1997 preamble of which reads as under:- "An Act to provide for the prevention of terrorism, sectarian violence and for speedy trial of heinous offences."
' During the pendency of the instant petition report was requisitioned from the learned trial court with regard to exact position of the trial, which has been received vide letter No.28/JSC, dated 12-2- 2013; according to which number of lawyers have been engaged by the accused persons and their complete appearance before the learned trial court is seldom. Moreover, one of the counsel for respondents Nos.7 and 8 practicing at Lahore agrees for fixation of case only on Saturday.
Notwithstanding the fact the lawyers engaged in this case have been burdened with professional engagements in different courts, however, Section 29 of the Anti-Terrorism Act, 1997, provides that:- - "29. Trial before (Anti-Terrorism Court) to have precedence.--- A trial under this Act of an offence by (An Anti-Terrorism Court), and the appearance of an accused before it, shall have precedence over the trial of any other case against the accused in any other Court, except the High Court on its original side."
Bare perusal of the above provisions clearly reflects that not only the trial of case pending adjudication before the Anti-Terrorism Court shall have precedence over all other trials pending adjudication in other trial courts rather except original jurisdiction of this Court, it shall have precedence over other cases, The rationale of the legislature while inserting this provision of law clearly reflects that the only intent behind it was to speed up the adjudication of such like cases as in hand. And if the matters are not disposed of within shortest possible time, the wisdom behind the very establishment of such courts would dash to ground.
' Moreover, section 19(7) of the Act, also provides as under:-- "The Court shall, on taking cognizance of a case, proceed with the trial from day to day and shall decide the case within seven days, failing which an application may be made to the Administrative Judge of the High Court concerned for appropriate directions for expeditious disposal of the case to meet the ends of justice."
8. Apart from this in pursuance of the notice issued by the Court, learned counsel representing the accused persons as well as learned Special Prosecutor present before the Court are unanimous on one point that considerable time has already elapsed, however, no plausible progress has been shown for the conclusion of trial, which even otherwise is against the basic norms of safe administration of criminal justice. At the cost of repetition we may mention here that the occurrence in this case had taken place way back on 27th December, 2007 and till today statements of only nineteen witnesses have been recorded out of which three prosecution witnesses are yet to be cross-examined, whereas, according to the calendar of witnesses appended with the challan, the tally of prosecution witnesses exceeds 100 and if no special initiatives are taken the instant case may take further 2/3 years for its conclusion, which being in violation of sections 19(7) and 29 of the Act, is not expected from the special court constituted under the Anti-Terrorism Act, 1997. Moreover, the case in hand being a high profile case, the accused persons connected with the crime, must face the consequences as it may set example for others. However, if during the course of trial, the accused persons behind the bars are found having no concern/nexus with the occurrence, then their detention even for a single moment is uncalled for in view of established principle of law that if after elapse of such a considerable time a person is acquitted of the charge there is nothing to compensate him in lieu of his incarceration being faced during the course of trial. We are fortified in our view in light of dictum of law of august Supreme Court of Pakistan in the case of Mumtaz Ali Khan Rajban and another v. Federation of Pakistan and others (PLD 2001 Supreme Court 169). Similar view was affirmed by learned Division Benches of this Court in the reported cases Akhtar Hussain v. Special Judge, Anti-Terrorism Court No.3, Lahore and others (2005 YLR 2363) and The State v. Abdul Malik alias Malkoo (PLD 2000 Lahore 499).
9. While evaluating all the facts and circumstances and the principles recognized for safe administration of criminal justice, we have been persuaded to direct the learned trial court to conduct the trial of case F.I.R. No.471, dated 27-12-2007, offence under sections 302, 324, 435, 436, 120-B, 109, P.P.C., read with sections 7, 21(i) and 21(c) of the Anti-Terrorism Act, 1997, read with and section 4/5 of Explosive Substances Act, 1908, registered at Police Station City Rawalpindi, on day- to-day basis and conclude the same preferably within a period of three months of the receipt of this order. Office is directed to transmit copy of this order to the learned trial court immediately through Special Messenger.
10. The instant criminal revision petition stands succeeded in the above said terms.