' Through the instant constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, read with sections 12, 21-M of the Anti-Terrorism Act, 1997 and sections 190, 204, 265-D, Cr.P.C. Following prayer has been made:- "In view of the above submissions it is most respectfully prayed that the impugned order dated 28.10.2015, passed by respondent No,1 may kindly be set aside being arbitrary, illegal, fanciful and most whimsical in nature.
' Any other relief which this honourable court deems appropriate under the facts and circumstances of the case may also be granted."
2. Facts of the case succinctly required for determination of the petition in hand are that the petitioner was booked as an accused in case. FIR No,532/2014, dated 21.04.2014, offence under section 365-A, P.P.C., Police Station Iqbal Town, Lahore lodged by Muhammad Ashfaq Khan son of Haji Muhammad Yaqoob Khan complainant. Gist of the accusations is that son of the complainant Muhammad Fawad Khan, a student of B.Sc. Engineering, was kidnapped from Lahore and subsequently he was transported towards District Bannu, Province of Khyber Pakhtunkhwa from where he was recovered from the custody of Sher Ayub, Muhammad Ayub, Ejaz Ahmed and Malik Manzoor and in this regard case FIR No,17012014, dated 23.04.2014, offence under sections 341, 347, P.P.C., read with section 13 of Pakistan Arms Ordinance (XX) of 1965 and section 5 of Explosive Substances Act, 1908 was registered with Police Station Cantt. Bannu. The petitioner was arrested in this case at Lahore and challan against him is pending before learned Anti-Terrorism Court No,II, Lahore. For the sake of fair trial and safe administration of criminal justice, constitutional petition of the petitioner was entertained as it was claimed that he has no nexus with the crime and it is part of record in case FIR No,170/2014 lodged at Police Station Cantt. Bannu. In this regard, he moved an application under sections 12, 17 and 21M of the Anti-Terrorism Act, 1997, for summoning of record and accused of FIR No,170/2014, dated 23.04.2014, offence under sections 341, 347, P.P.C., read with section 13 of Pakistan Arms Ordinance (XX) of 1965 and section 5 of Explosive Substances Act, 1908 registered with Police Station Cantt. Bannu on the ground that transportation of the abductee at Bannu and his recovery from there is continuation of case FIR No,532/2014, dated 21.04.2014, offence under section 365-A, P.P.C., Police Station Iqbal Town, Lahore, therefore, in view of provisions of section 235 of the Criminal Procedure Code, the accused be summoned from Bannu. The learned trial court after affording opportunity of hearing to learned counsel for both sides directed the Investigating Officer to submit' supplementary challan against the aforesaid accused after adopting/fulfilling all codal and legal requirements. During the course of proceedings it has been brought into the notice of this Court that on three different occasions viz. 30.04.2014, 09.12.2014 and 08.02.2016, initiatives were taken by Home Department, Government of the Punjab for transfer of the accused at Lahore, however, without any result, hence the instant petition has been filed.
3. Learned counsel for the petitioner, at the very outset, contends that abduction of Muhammad Fawad Khan by the accused, his transportation towards Bannu, Khyber Pakhtunkhwa, as well as, his handing over to the accused nominated in the FIR No,170/2014, dated 23.04.2014, offence under sections 341, 347, P.P.C., read with section 13, of Pakistan Arms Ordinance (XX) of 1965 and section 5 of Explosive Substances Act, 1908 Police Station Cantt. Bannu and subsequent recovery from there, are in fact acts of the same transaction, therefore, venue of trial should be the same, In this regard learned counsel for the petitioner has referred the provisions of section 235/179, Cr.P.C. It is vehemently argued that under the provisions of section 561-A, Cr.P.C., this Court has ample jurisdiction to issue direction for safe administration of criminal, justice even regarding production of the accused persons in view of provisions of section 185(2), Cr.P.C. Which read as under:-
185. High Court to decide, in case of doubt, district where inquiry or trial shall take place.
(1)...
(2) Where two or more Courts not subordinate to the same High Court have taken cognizance of the same offence, the High Court within the local limits of whose appellate criminal jurisdiction the proceedings were first commenced may direct the trial of such offender to be held in any Court subordinate to it, and if it so decides all other proceedings against such person in respect of such offence shall be discontinued. If such High Court, within the local limits of whose appellate criminal jurisdiction such proceedings are pending may give a like direction, and upon its so doing all other such proceedings shall be discontinued.
' Learned counsel while referring section 12, of the Anti-Terrorism Act, 1997 contends that court established under the Act has precedence over the other ordinary courts, therefore, under the provisions of sections 12/21-M of the Act, the learned Sessions Judge, Bannu is under obligation to transfer file of the case as well as the accused of the aforesaid crime report before the Anti- Terrorism Court at Lahore for trial. Adds that although three initiatives were taken by the Home Department, Government of the Punjab, however, the needful has not been done so far.
4. Learned Law Officer assisted by learned counsel for the complainant supports the scheme of law advanced by learned counsel for the petitioner.
5. We have given our anxious consideration to the arguments advanced from both sides and gone through the record available on file.
6. As far as maintainability of the instant constitutional petition is concerned, as the learned trial court (Anti-Terrorism Court No,11, Lahore) has already taken the cognizance and has also directed for submission of supplementary challan in this regard, however, the only impediment coming in the way of the compliance of the order of the learned trial court is that it is within the exclusive jurisdiction of this Court to pass an appropriate order in the spirit of safe dispensation of justice.
7. As far as merits of the case are concerned, record available on file reflects that on 20.04.2014 at about 4:00 p.m. Muhammad Fawad Khan son of the complainant was abducted within the territorial jurisdiction of Police Station Iqbal Town, Lahore by accused (1) Hakeem Ullah Khan, (2)
Sajjad Khan Pathan, (3) Abid Ullah Khan and three unknown accused persons, regarding which case FIR No,532/2014, dated 21.04.2014, offence under section 365-A, P.P.C, was registered with Police Station Iqbal Town, Lahore. Subsequently Munawar Hussain/petitioner was also arrayed as one of the accused. The accused allegedly transported the abductee towards Bannu, Province of Khyber Pakhtunkhwa and police of Police Station Cantt Bannu on spy information on 23.04.2014, recovered the abductee from the custody of Sher Ayub, Muhammad Ayub, Ejaz Ahmed and Malik Manzoor and in this regard case FIR No,170/2014, dated 23.04.2014, offence under sections 341, 347, P.P.C., read with section 13 of Pakistan Arms Ordinance (XX) of 1965 and section 5 of Explosive Substances Act, B 1908, was registered with Police Station Cantt. Bannu. It is also an admitted fact that trial against the petitioner is pending before learned Judge, Anti-Terrorism Court No,II, Lahore, while the accused of the subsequent transaction, are facing trial at Bannu before learned Sessions Judge. Under the provisions of section 235, of the Criminal Procedure Code, 1898, trial of more than one offence, of the same acts, has to be conducted before one court. The same are reproduced hereunder for ready reference:- "235. Trial for more than one offence. (1) If in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for every such offence.
' Moreover, under section 179, Cr.P.C. When acts of same transaction jointly constitute the same offence, that offence can be inquired into and tried within the limits of the Court under whose jurisdiction the act was done or ensued. The same are reproduced as under:- "179. Accused triable in district where act is done or where consequence ensues. When a person is accused of the commission of any offence by reason of anything which had been done, and of any consequence which has ensued, such offence may be inquired into or tried by a Court within the limits of whose jurisdiction any such thing has been done or any such consequence has ensued."
In case such occasion happens within the local limits of two different courts of two different provinces, the legislature has provided its solution in section 185(2), Cr.P.C., according to which the court trying the case of first act shall try the case of subsequent acts of the same transaction. In this regard the High Court has been empowered to pass an appropriate order under the provisions of section 185(2), Cr.P.C., which are reproduced as under:-
185. High Court to decide, in case of doubt, district where inquiry or trial shall take place.
(1)
(2) Where two or more Courts not subordinate to the same High Court have taken cognizance of the same offence, the High Court within the local limits of whose appellate criminal jurisdiction the proceedings were first commenced may direct the trial of such offender to be held in any Court subordinate to it, and if it so decides all other proceedings against such person in respect of such offence shall be discontinued. If such High Court, upon the matter having been brought to in notice, does not so decide any other High Court, within the local limits of whose appellate criminal jurisdiction such proceedings are pending may give a like direction, and upon its so doing all other such proceedings shall be discontinued.
8. It is also an admitted fact the trial of case FIR No,532/2014, dated 21.04.2014, offence under section 365-A, P.P.C., Police Station Iqbal Town, Lahore, is pending before Anti-Terrorism Court at Lahore while trial of case FIR No,170/2014, dated 23.04.2014, offence under sections 341, 347, P.P.C., read with section 13 of Pakistan Arms Ordinance (XX) of 1965 and Section 5 of Explosive Substances Act, 1908, Police Station Cantt. Bannu, is being tried by learned Sessions Court Bannu. Under section 12, of the Anti-Terrorism Act, 1997, it is provided that whenever a scheduled offence is committed the same is only triable by the court constituted under the Anti-Terrorism Act, 1997. The same is reproduced herein below for ready reference: - "12. Jurisdiction of [Anti-Terrorism Court.]
(1) Notwithstanding anything contained in the Code or in any other law, .a scheduled offence committed in an area in a Province [or the Islamabad Capital Territory] shall be triable only by [the Anti-Terrorism Court] exercising territorial jurisdiction in relation to such area.
(2) Notwithstanding anything contained in subsection (1), if in respect of a case involving a scheduled offence committed in an area, the Government, having regard to the facts and circumstances of the case, is satisfied that in order to ensure a fair trial, or for the protection and safety of witnesses, that such offence should be tried by [an Anti-Terrorism Court] established in relation to any other area, the Government may make a declaration to that effect.
(3). Where a declaration is made in respect of an offence committed in an area in a Province [or the Islamabad Capital Territory], any prosecution in respect of such offence shall be instituted only in [the Anti-Terrorism Court] established in relation to such area, and if any prosecution in respect of such offence is pending immediately before such declaration in any other Court, the same shall, stand transferred to such [Anti-Terrorism Court/ and such [Anti-Terrorism Court] shall proceed with such case from the stage at which it was pending at that time without the necessity of recalling any witnesses."
9. Even otherwise according to provisions of section 29, of the Anti-Terrorism Act, 1997, the courts constituted under the Act have precedence over ordinary courts of law except the High Court. The same are reproduced herein below for ready reference:- "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."
10. There is no denial to this fact that the court at Lahore has been constituted under the Special Act and ordinarily deals with only scheduled offences, however, provisions of section 17 of the Anti- Terrorism Act, 1997, provide that the Special Court can also try an offence other than the scheduled offence. The same are reproduced hereunder: - "17. Powers of [Anti-Terrorism Court] with respect to other offences.---When trying , any scheduled offence, [an Anti-Terrorism Court] may also try any offence other than the scheduled offence with which the accused may, under the Code, be charged at the same trial."
' Moreover, section 21-M of the Act, also provides as under:- "21-M. Joint Trial..---While trying any offence under this Act, a Court may also try any other offence with which an accused may, at the same trial if the offence is connected with such other offence.
(2) ...............
10(sic.) Admittedly not only trial of case FIR No,532/2014, dated 21.04.2014, offence under section 365-A, P.P.C.; Police Station Iqbal Town, Lahore, has commenced at Anti-Terrorism Court, Lahore; wherein statements of six prosecution witnesses have also been recorded. The Court has also been apprised that earlier on 30.04.2014, 09.12.2014 and 08.02.2016, initiatives were taken by Home Department, Government of the Punjab, for transfer of the accused of case registered with Police Station Cantt. Bannu, at Lahore but without any result. Hence, for safe administration of criminal justice, while exercising jurisdiction under section 561-A, Cr.P.C. Read with section 185(2), Cr.P.C., sections 12, 17 and 21-M, of the Anti-Terrorism Act, 1997, we have been persuaded to direct the Secretary Home, Government of the Punjab, to ensure production of record and accused of case FIR No,170/2014, dated 23.04.2014, offence under sections 341, 347, P.P.C., read with section 13, of Pakistan Arms Ordinance (XX) of 1965 and section 5, of Explosive Substances Act, 1908, Police Station Cantt. Bannu, at Lahore for their trial before Anti-Terrorism Court, Lahore, in accordance with law. The needful be done preferably within fortnight.
11. The instant petition succeeds in the above terms.