AHMED ALI M. SHAIKH, C.J.---By means of instant application, applicant Anwar Ali seeks transfer of Sessions Case No,716 of 2015 pending before II-Additional District and Sessions Judge, Malir to the Anti-Terrorism Court No,1, Karachi.
2. Brief facts of the case are as pleaded in the application are that on 12.6.2014 Inspector Ismail Lashari, SHO Police Station Sachal, picked up applicant's son Anis-ur-Rehman. On receiving information, applicant met with the Inspector above named, who allegedly demanded illegal gratification of Rs,500,000.00 for his release. It is further pleaded that on 19.6.2014 applicant arranged Rs,50,000.00, met with the SHO for release of his son but the SHO misbehaved with him.
Subsequently in night time Inspector Ismail Lashari along with other police officials raided complainant's house situated in Ghazi Goth, removed jewelry, etc. Applicant filed application against illegal detention of his son before Sessions Judge, Malir, however, Inspector Ismail Lashari murdered his son, whose dead body applicant received from Edhi Center on 23.6.2014. However, on 23.2.2015 applicant succeeded in registering FIR No,90/2015 under sections 365, 395, 302 and 34, P.P.C. against accused persons including official respondents Nos,2 to 5 at Police Station Sachal.
Police after usual investigation submitted report in A class before Incharge Judicial Magistrate IV, Malir, Karachi, who did not concur with the police report, took cognizance vide order dated 29.6.2015 and forwarded the case to the Sessions Court where case was numbered as Sessions Case No,716 of 2015.
3. On 22.6.2014 complainant SIP Shaikh Shoaib Ali, SHO Police Station Sohrab Goth lodged FIR No,186/2014 stating therein that on said date during patrolling in the area on a tipoff as to the presence of duly armed terrorists Akbar Zaman, Muhammad Nazeer and others in a locked house in Pioneer Homes, he along with police party reached there. Police broken open the lock and entered the house on which terrorists started firing. As a result of police encounter three unknown armed terrorists were killed while their three accomplices managed to escape. Police shifted the dead bodies in ambulance to Abbasi Shaheed Hospital for postmortem. However, as per charge sheet report No,191/2014 submitted in FIR No,186/2014 by Inspector Nusrat Hussain Shaikh, on 23.6.2014 one of the terrorists was identified as Anees son of Anwar Ali Soomro, whose dead body was given to the heirs. The case is pending adjudication before Anti-Terrorism Court No, 1, Karachi.
4. On 27.2.2016 an application in Sessions Case No,716 of 2015 was filed, seeking transfer of the Sessions Case to the Anti-Terrorism Court No,1, Karachi, in order to avoid conflicting judgments.
However said application was dismissed by the learned 1st Additional Sessions Judge, Malir vide impugned order dated 12.3.2016.
5. Learned counsel for the applicant contended that FIR No,90/2015 registered at Police Station Sachal and FIR No,186/2014 emanated from one episode. He further submitted that such submission fortifies with the fact that applicant's son Anis-ur-Rehman was picked up by Inspector Ismail Lashari, and on failure of the applicant to fulfill his illegitimate demand, said Inspector with him killed in a pre-determined and, well planned police encounter within the jurisdiction of Sohrab Goth Police Station. However, fact remains that deceased was picked up on 12.6.2014 and applicant received his dead body from Edhi Center on 22/23.6.2014 while police portraying as one of the terrorists killed him in an encounter. He further submitted that in order to avoid conflicting judgments and over and above for safe administration of justice instant transfer application be allowed. Learned APG adopts arguments submitted by the learned counsel for the applicant.
6. Contrarily, Mr. Fayaz Ahmed, counsel for respondents Nos,2 to 5 submitted that instant transfer application merits dismissal as two different FIRs were registered by two different complainants and same depict altogether different story. He further submitted that accused nominated in FIR No,90/2015 cannot be charged for murder of Anis-ur-Rehman as he was killed during an encounter with police for which FIR No,186/2014 was registered. He also submitted that as the offences with which respondents are charged are not scheduled offences, Anti-Terrorism Court lacks jurisdiction in matter.
7. I have heard the learned counsel for the parties, APG and minutely perused the material available on record. The series of events reveals that on 12.6.2014 applicant's son Anis-ur-Rehman was picked up by Inspector Ismail Lashari, who allegedly demanded illegal gratification for releasing him. In this regard, applicant on 20.6.2014 has filed an application under section 491, Cr.P.C. before the District and Sessions Judge, Malir and on Court orders raid was conducted at Police Station Sachal for the recovery of Anis-ur-Rehman but he was not found there. However, the Sessions Judge, Malir directed the SHO to appear on 25.6.2014. In the meantime, on 22.6.2014 in an encounter with police party headed by SIP Shaikh Shoaib Ali, three unknown terrorists were killed.
Later, on 23.4.2014 one of the terrorists killed in the encounter was identified as Anis-ur-Rehman, and applicant received the dead body of his son. From the record it appears that police version as to alleged encounter was recorded as FIR No,186/2014 at Police Station Sohrab Goth.
8. After refusal of local police to register FIR against SHO Police Station Sachal and others, applicant approached the Justice of the Peace/District and Sessions Judge, Malir, under section 22-A, Cr.P.C. but his application was dismissed. Applicant filed Criminal Misc. Application No,221 of 2014 under section 561-A, Cr.P.C., and a learned single Judge of this Court , vide order dated 22.7.2014 ordered registration of FIR against accused persons, including Inspector Ismail Lashari, SHO Police Station Sachal. Against said order Inspector Ismail Lashari/respondent No,2 herein filed Criminal Petition No,89-K of 2014, however, on 23.2.2015 FIR No,90/2015 under sections 365, 395, 302, 34, P.P.C. at Police Station Sachal in which respondents Nos,2 to 6, including Inspector Ismail Lashari, were nominated as accused, was registered. The honourable Supreme Court vide order dated 27.2.2015 dismissed the petition and refused leave, inter alia, directing the Senior Investigating Officer (SIO) to hand over police file pf FIR No,90/2015 to SSP East for holding/supervising investigation; and SSP Malir to ensure that no harm is caused either to the complainant and his family.
9. Despite aforesaid. orders passed by the apex Court and during pendency of instant transfer application, on 18.2.2017 applicant/ complainant of FIR NO.90/2015 AnWer Ali was allegedly picked up by the Rangers Personnel, however, after making an application (Misc. No,2056/2017) on 20.2.2017 and issuing notice to the concerned quarters, applicant was released.
10. In the instant case there are two versions: (1) given by the applicant in FIR No,90/2015 in regard to picking up of his son, demand of illegal gratification by police filing of habeas corpus petition and his subsequent murder at the hands of police; and (2) police version contained in FIR No,186/2014 that there was an encounter with unknown terrorists in which three terrorists were killed while others made their escape good and the dead body of one of the terrorists killed in the encounter lying in Edhi Center, namely, Anis-ur-Rehman, applicant's son was received by his legal heirs. Both cases are cross-cases containing different sets of accused persons while the killing/murder of Anis-urRehman is common.
11.From the material available on' record it appears that applicant's son was allegedly picked up by police on 12.6.2014 and he on 20.6.2014 filed 491, Cr.P.C. application. During hearing of said application on directions of the District Judge, Malir a raid was conducted at Sachal police Station for recovery of detenue Anis-ur-Rehman and upon non-recovery the matter was fixed on 25.6.2014 with direction to the SHO to appear in person. In the meanwhile, on 22.6.2014 in an alleged encounter with police of Sohrab Goth Police Station terrorists including said detenue was shown killed and series of FIRs including FIR No,186/2014 were registered. So in case police version is accepted by the Special Court, declaring the detenue Anis-ur-Rehman as one of the terrorists what would be the fate of crime No,90/2015 registered by the applicant in regard to alleged abduction and murder of his son at the hands of Inspector Ismail Lashari, SHO Police Station Sachal and others, therefore, in essence two separate criminal proceedings in respect of murder/killing of deceased Anis-ur-Rehman are pending in two distinct courts. There is no cavil to the proposition that when there are two versions in respect of same occurrence the trial ought to be conducted by one and same Court. In law, the ordinary court cannot try scheduled offences.
12. In this context, reliance can be placed on the case of Niaz Ahmed v. Hasrat Mehmood (PLD 2016 Supreme Court 70) wherein it was observed that:- "3. It has vehemently been argued by the learned counsel for the petitioner that the petitioner had initially lodged an FIR in respect of the incident in question and subsequently, having remained dissatisfied with the investigation of the case by the local police, he had instituted a private complaint regarding the selfsame incident containing identical allegations as leveled in the FIR and, thus, by virtue of the law declared by this Court in many cases the trial court ought to have conducted the trial in the complaint case first and it ought not to have consolidated the complaint case and the challan case for a joint and simultaneous trial. In this regard the learned counsel for the petitioner has placed reliance upon the cases of Nur Elahi v. The State, etc. (PLD 1966 SC 708), Mst. Rasool Bibi v. The State and another (2000 SCM R 641), Syed Muhammad Hussain Shah v.
Abdul Hamid and 5 others (1981 SCM R 361) and Muhammad Azam v. Muhammad Iqbal and others (PLD 1984 SC 95). We have attended to the said argument advanced by the learned counsel for the petitioner and have also perused the precedent cases referred to by him in support of such contention. The law is settled by now that if different versions of the same incident are advanced by the rival parties through cross-cases and such different versions contain different sets of accused persons then trial of such cross-cases is to be held simultaneously and side by side and a reference in this respect may be made to the cases of Muhammad Sadiq v. The State and another (PLD 1971 SC 713), Abdul Rehman Bajwa v. Sultan and 9 others (PLD 1981 SC 522), Rashid Ahmed v. Asghar Ali, etc. (PLD 1986 SC 37) and Mst. Rasool Bibi v. The State and another (2000 SCM R 641) " (emphasis in italic is mine)
13.Perusal of record shows that in FIR No,186/2014 under sections 324, 354, 427, 34, P.P.C. read with section 7 of Anti-Terrorism Act, 1997, registered at Police Station Sohrab Goth, the prosecution has cited twelve witnesses in column No,6 of the Charge Sheet dated 21.8.2014 out of which eight prosecution witnesses, namely, (1) PI Nusrat Hussain Shaikh, (2) SIO Pir Asghar Hussain Sarhandi, (3)
SIP Nadeem Sarwar, (4) ASI Ghulam Rasool, (5) PC Mairaj Waris, (6) PC Tahir Sultan, (7) PC Mumtaz Ali and (8) MLO Dr. Pervez Anwer Khan are also cited as witnesses in FIR No,90/2015 lodged by the applicant.
14.In instant cross-cases in respect of killing/murder of Anis-ur-Rehman, trial in respect of FIR No,186/2014 is pending before Anti-Terrorism Court while for FIR No,90/2015 before 1st Additional District and Sessions Judge. It is almost settled principle of law that Anti-Terrorism Court will have power to try non-scheduled offence only when it is trying scheduled offence i,e, scheduled and non-scheduled offences can be tried together in one and same trial. However, power to try nonscheduled offence will not be available to Anti-Terrorism Courts under Anti-Terrorism Act when it is not trying any scheduled offence. Conversely, an ordinary criminal court cannot take cognizance of an offence mentioned in the Schedule to Anti-Terrorism Act, 1997.
15. Here, reference to section 526(1), Cr.P.C. would be beneficial. Perusal of this section of the Code provides that High Court may transfer case or itself try it- (1) whenever it is made to appear to the High Court that (a) a fair and impartial inquiry or trial cannot be had in any criminal Court subordinate thereto, or (b) some question of law of unusual E difficulty is likely to arise, or (c) a view of the place in or near which any offence has been committed may be required for the satisfactory inquiry into or trial of the same, or (d) that an order under this section will tend to the general convenience of the parties or witnesses, or (e) such an order is expedient for the ends of justice, or is required by any provision of this Cody.... " However, the question of expediency would depend on the facts and circumstances of each case but the paramount consideration for the exercise of power must be to meet the ends of justice. I may also observe that propriety demands that whenever the facts or circumstances permit, cross cases, giving two different versions of the same incident and have two different sets of accused, should be tried by the same Court together as if the two cases giving different versions of same incident are not tried together, there would be serious likelihood of conflict in Judgment.
16.Keeping in view the above facts and circumstances and in order to avoid conflicting Judgments, it is expedient for the ends of justice that Sessions Case No,716/2015 culminating from FIR No,90/2015 pending before 1st Additional District and Sessions Judge, Malir is transferred to the Anti-Terrorism Court No,1 where case culminating from FIR No,186/2014 is already pending adjudication. Aforesaid are the reasons of my short order dated 24.4.2017 whereby instant criminal transfer application was allowed.