MUHAMMAD SALEEM JESSAR, J.---Through instant petition, the petitioners have prayed as under:-
(a) That, this honourable Court may be pleased to declare impugned order dated 08.11.2016 as null and void and of no legal effect to the extent of deciding jurisdiction of Court and issuing notice to the petitioners Nos,1 to 3 and set-aside the same, which will meet the ends of justice.
(b)That, this honourable Court may further be pleased to declare that the order dated 06.04.2016 passed by learned Special Judge, Anti-Terrorism Court, Shikarpur is a speaking and well reasoned order passed in accordance with law and maintain the same.
(c)That this Hon'ble Court may also be pleased to suspend the operation of impugned order dated 08.11.2016 passed by learned 1st Additional Sessions Judge, Jacobabad, till final decision of the instant petition.
2. Brief facts of case are that complainant Zameer Hussain got registered FIR No,15/ 2016 at Police Station Garhi Khairo stating therein that he along with his relatives namely Sher Khan son of Muhammad Hashim,
2. Shahzado son of Hidayatullah,
3. Zaid son of Shahzado aged about 12/13 years,
4. Murad Ali son of Muhammad Qasim aged about 50/51 years,
5. Ghulam Ali son of Muhammad Qasim aged about 60/61 years,
6. Muhammad alias Kaloo aged about 35/36 years, 7.
Ameer Bux aged about 25/26 years both sons of Dilmurad Fakir,
8. Manzoor son of Ali Hyder aged about 31/32 years,
9. Gul Ian son of Ghulam Rasool aged about 32/33 years, used to reside in village Lal Bux Soomro since his forefathers. Accused Liaqat Ali Rind and others used to threaten the complainant to migrate from the village else they will fight with them and eliminate their lineage.
On 03.4.2016, all of them were available in their houses along with their families when at 10-00 a.m. about 26/27 persons armed with weapons entered into their house. Of them 16 persons were identified to be 1. Liaqat Ali 2. Wajid Ali alias Beero, both sons of Akbar by caste Rind resident of Gulab Marhi Taluka Garhi Khairo,
3. Nisar Ahmed 4. Qurban Ali both sons of Ghulam Murtaza, 5.
Ashraf,
6. Ghulam Murtaza both sons Abdul Ghaffar, all the six armed with KKs,
7. Abdul Ghaffar son of Jhando armed with Repeater,
8. Iqbal son of Abdul Qadir,
9. Nasir son of Sikandar,
10. Abdul Aziz son of Unknown, both armed with Rifles, all by caste Rind residents of Osta Muhammad, Balochistan,
11. Amanullah,
12. Abdul Hameed both sons of Muhammad Khan,
13. Barkat,
14. Lal Dino both sons of Sharbat,
15. Ali Nawaz son of Allah Warayo, all the five with K.Ks,
16. Mashooque son of Muhammad Ramzan armed with Rocket launcher, all the six by caste Dahani residents of near village Muhammad Khan Dahani Taluka Garhi Khairo and 10/12 unidentified persons, having open faces, of them, 5/6 persons armed with Rifles and 5/6 persons armed with Guns, who were seen by the complainant clearly and could be identified if seen once. Of them, accused Liaqat Rind 'raised lalkara and asked Ali Murad that previously they were directed to vacate the village but to no avail fence they will not spare the complainant party. Saying so, he fired KK shot which hit Ali Murad. The complainant party gave the lames of Holy Quran to accused not to kill the man whereupon aroused Wajid Ali alias Beerho and Nisar Ahmed fired KKs shots which also hit Ghulam Ali. In the meantime accused Qurban Ali, Ashraf and Ghulam Murtaza fired which hit Manzoor Ahmed.
Accused Iqbal and Nasir fired which hit Muhammad alias Kaloo. Accused Abdul Aziz fired which hit Gul Jan. Accused Amanullah fired which hit Ameer Bux. Accused Barkat Ali fired which hit Sher Khan. Accused Lal Dino fired which hit Shahzado. Accused Ali Nawaz fired which hit Zaid, who all fell down on the ground. Thereafter the accused persons in order to spread terror, fired Rocket Launcher upon the complainant party while rest accused joyously fired in the air resultantly their fires hit their companions namely accused Mashooq Ali and Abdul Hameed. Thereafter, all the accused persons forcibly took away motorcycles and licensed weapons of the complainant party.
Murad Ali, Ghulam Ali, Muhammad Khan alias Kaloo, Ameer Bux, Manzoor and Gul Jan succumbed to injuries within sight of complainant, while Shahzado, Sher Khan and Zaid sustained injuries. The complainant also found accused Mashooque Ali and Abdul Hameed lying dead. With the help of villagers, the complainant shifted the injured to Police Station where-from he obtained letter for treatment and brought the injured to Civil Hospital, Garhi Khairo. The injured were referred to Larkana. Thereafter the complainant appeared at Police Station and lodged the report in the above terms.
3.After registration of FIR No,15/2016, same was submitted before Special Judge, Anti Terrorism Court, Shikarpur who by order dated 06.4.2016 had returned the FIR to SHO concerned by observing as under:- "For the reasons discussed above, I find that offence as alleged in the FIR has no nexus with the object of sections 6/7 of ATA but police has unnecessarily applied sections 6/7, ATA to bring the case within the ambit of this court, hence the FIR be returned to SHO PS Garhi Khero along with connected FIRs No,16/2016, 17/2016 and 18/2016 under section 23(i)A of PS Garhi Khero, with direction to submit the same to the court having jurisdiction."
4.After return of the FIR, the police concerned took up investigation and meanwhile had arrested three nominated accused on 4.4.2016 and 5.4.2016 respectively and after completion of legal formalities submitted the challan before the competent court of law (ordinary court) having jurisdiction viz. before the Court of learned 1st Civil Judge and Judicial Magistrate, Garhi Khairo District Jacobabad. The offence being exclusively triable by Court of Session but is pending before the learned Magistrate for preliminary proceedings in terms of the judgment of apex Court in PLD 2010 SC 585. After submission of challan petitioner Muhammad Akmal Khan Rind filed pre-arrest bail application which was ultimately allowed, whereas co-petitioners Mehrullah, Roshan and Ayaz Ali filed their two respective bail applications No, 245/2016 and 255/2016 which were subsequently entrusted to learned 1st Additional Sessions Judge, Jacobabad. At first instance the petitioners Nos, 2 to 4 were admitted to ad-interim pre-arrest bail then the matter was adjourned to 08.11.2016 for confirmation or otherwise. On 08.11.2016 learned 1st Additional Sessions Judge, Jacobabad has recalled their ad interim pre-arrest bail order granted in favour of the petitioners Nos,2 to 4 by holding that case against the petitioners was triable by Anti Terrorism Court and he was not competent to entertain their bail applications giving rise to filing present petition before this Court in the above terms.
5.Mr. Ghulam Mohiuddin Durrani learned counsel for the petitioners submits that the allegations contained in the FIR No,15/2016 do not bring the case within the ambit of Anti-Terrorism Act as the contents of FIR do not attract the provisions of sections 6, 7 and 8 of the Anti-Terrorism Act, 1997 as the said FIR was already returned to Police Station concerned for presenting the same before the ordinary court of law having jurisdiction. He further contended that the alleged incident as in enumerated in the FIR is said to have been committed due to enmity between the parties and had occurred in dwelling house and not on a public place, therefore, the action whatever was striking did not explore the terror or had created sense of fear and insecurity in the people or any section of the people as is defined under sections 6 and 7 of the Act. He submitted that order dated 06.4.2016 passed by learned Judge Anti-Terrorism Court, Shikarpur is very much clear and by inserting sections 6 and 7 of the Act in the FIR does not constitute any offence of terrorism within the definition of section 6 read with section 7 of the Anti-Terrorism Act, 1997. Lastly he prayed for setting aside the impugned order dated 08.11.2016.
6.Mr. Khadim Hussain Khooharo, learned DPG assisted by Mr. Ameer Ahmed Narejo, State counsel have not supported the impugned order and contended that the learned 1st Additional Sessions Judge was not competent to decide the point of jurisdiction while dealing with the bail application.
7.We have heard learned counsel for the parties and perused the material available on record. The District and Sessions Judge, or Additional Sessions Judge, on examining the case and consideration of facts that manner in which alleged crime was committed comes within the purview of Anti-Terrorism Act but being a District and Sessions Judge/Additional District and Sessions Judge is not authorized to declare any offence as scheduled offence. In fact the Anti- Terrorism Court do possess jurisdiction to transfer the case to the Court of ordinary B jurisdiction, however, no such powers are conferred on the ordinary courts of criminal jurisdiction to transfer the case from its docket to the Court of Anti-Terrorism Act in a situation where the learned Sessions Court/Additional Sessions Court is of the opinion that alleged offence is triable by the Anti- Terrorism Court as the commission of the crime has created panic and terror amongst the people and the manner the crime C has been committed has developed sense of fear and insecurity in the mind of people or any section of society then two courses are available to the learned Sessions Court firstly, reference may be made to the Chief Justice of High Court in terms of subsection (3) of section 526, Cr.P.C. it will be conducive to read section 526(3), Cr.P.C. which says as under:- 8."526. High Court may transfer case or itself try it. (1) ...
(3) The High Court may act either on the report of the lower Court, or the application of a party interested, or on its own Upon such reference, the Chief Justice may after notice to the Prosecutor General Sindh and the accused or the complainant party, as the case may be, pass such orders as may be expedient after taking slack of facts and circumstances of the case ordering transfer of the case from the Court of Session to the Anti-Terrorism Court. Reference can be had from the case of Naleem v. The State (1997 M LD 275) whereby the Single Bench of this Court has held as under:- "This means, in other words, the accused must be provided an opportunity of having been heard, before an order in regard to the withdrawal of his case from Sessions Court to the Court established under the Special Courts (Suppression of Terrorist Activities) Act, 1975 is passed. During the course of hearing it transpired that neither any notice was given to the accused nor he was heard before passing the impugned order. This being in violation of the principles of natural justice, was illegal. I am fortified in my view by the judgment reported as Anisa Rehman v. P.I.A. C. 1994 SCM R 2232, wherein violation of principles of natural justice have been equated with the violation of principle of law. I am also of the view that principles of natural justice would now have to be considered as a constitutional concept, enshrined in Articles 3 and 4 of the Constitution, which contain the due process clause."
9. The other option to the Sessions Judge/Additional Sessions Judge is that he should issue notice to the Prosecutor General and to the accused/complainant party/any aggrieved, as the case may be and after an opportunity of being heard, comes to a conclusion that the case is of the nature triable by the Anti-Terrorism Court, then may return the challan to the Court/agency/Investigating officer for submitting the same before the Court having jurisdiction in the matter as it is well settled principle of law that Special Courts constituted under special statutes (Special Courts) are neither subordinate to the Sessions Court nor they fall within the hierarchy of the Courts as provided in the Criminal Procedure Code and the Additional Sessions Judge, could not be equated with transfer of case contemplated by section 528, Cr.P.C. or section 4 of the Suppression of Terrorist Activities (Special Courts) Act, 1975 or section 23 of the Anti-Terrorism Act, 1997. It is well settled principle of law that if any case exclusively triable by Special Court is sent before the ordinary court by mistake then the Court either directly or through Sessions Judge would be competent to send back said case to Special Court for want of jurisdiction. Such exercise, however will not be equated with the transfer of a case within the meaning of section 528, Cr.P.C. Reference can be had from the case of Muhammad lqbal and another v. The State reported in 1992 M LD 287 whereby learned Single Judge of this Court had held in para. No,6 ' of the judgment as under:- "Coming now to the second question, whether the Sessions Judge is empowered to transfer a case pending on his file or on the file of any of the Courts subordinate to him, to the Judge, Special Court (Suppression of Terrorist Activities), under the provisions of section 528, Cr.P.C., it must straightaway be conceded that he is not competent to do so. The Judge, Special Court (Suppression of Terrorist Activities) is not a court subordinate to a Sessions Judge within the meaning of section 528,. Cr.P.C.
At least I cannot find anything in section 528, Cr.P.C. thereby enlarging its scope. Section 4-A of the Suppression of Terrorist Activities (Special Courts) Act, 1975, alone empowers the Government to transfer cases, but that too from one Special Court to other Special Court."
10.Reverting to the contention whether the Additional Sessions Judge was competent or not by means of section 526(3), Cr.P.C., obviously, learned Additional Sessions Judge was not competent to send back the case straightaway and decide the fate of the case without hearing to the petitioners/a accused and other side.
11.The sum up total of the above discussion is that the Anti-Terrorism Courts do possess jurisdiction to transfer the case to the Court of ordinary jurisdiction, however no such powers are conferred on the ordinary Courts of criminal jurisdiction to transfer the case from its docket to the Anti-Terrorism Court in a situation where learned Sessions Court is of the opinion that alleged offence is triable by the Anti Terrorism Court if he comes to the conclusion that commission of the crime has created panic and terror among st the people and the manner in which the crime has been committed has developed sense of fear and insecurity in the mind of the people or any section of the society then the learned Sessions Judge has to make reference of the case to the honourable Chief Justice of High Court in terms of subsection (3) to section 526, Cr.P.C.
12.Since in the case in hand neither accused nor other side has been heard and the Additional Sessions Judge, without applying his judicious mind has straightaway decide the question of jurisdiction thereby has caused miscarriage of justice. Such findings of learned Additional Sessions Judge, are against the principle of natural justice, therefore, we are of the considered view that impugned order dated 08.11.2016 is patently illegal and therefore, same is set aside. Let the matter be remanded back to learned Sessions Judge, Jacobabad with directions to issue notice to Prosecutor General, the accused and the complainant party and after hearing to all the concerned may pass appropriate orders as may be expedient for return of file/challan to the concerned agency or investigating officer for submission before the court of competent jurisdiction or otherwise. The petition, in the above terms, stands allowed.