1. MUHAMMAD SALEEM JESSAR, J.---Through this Criminal Revision Application the applicant has. assailed Order dated 22.9.2018 handed down by 1st Additional Sessions Judge, Thatta in Sessions Case No.30 of 2011, whereby the Misc. Application filed by, the applicant herein, seeking transfer of the case to Anti-T errorism Court having ' jurisdiction, was dismissed.
2. Brief facts giving rise to the filing of instant Criminal Revision Application are that applicant Malik Changez Khan and respondent No.2, Malik Asad Sikand ar, are related inter se and are also active in politics: belongin g to two different political parties. They live in the same area. According to the averments made in the Criminal Revision Application, respondent No.2 does not tolerate any opposition to his political status and in case anyone contests elections against him, he punishes such person by filing false criminal cases against the person. Since the complainant himself contested the election in 2008 on provincial assembly seat PS-72 from Thane Bola Khan against the candidate nominated by respondent No.2, therefore, respondent No.2 was annoyed with him and in order to teach a lesson to the applicant, respondent No.2 not only filed false cases against the applicant but also abducted .the applicant while he was going with his friends to Quetta via Jacobab ad. The brother of the applicant approached this Court by filing C.P. No. D-477 of 2010. Since restraining orders were passed by this Court in the above petition, whereby the applicant was not to be arrested, therefore, a contempt application was also filed in the said petition wherein the then DPO Thatta Fareed Jan Sarhandi filed his affidavit wherein it was denied that the applicant was arrested by police. This Court, on 07.04.2010 passed the following order in C.P . No. D-477/2010: "We, therefore, direct District and Sessions Judge, Thatta Jo conduct a thorough enquiry after recording statements from the side of petitioners so also the statements of police officials. and other connected parties, who may be relevant and thereafter to submit his report as to whether Malik Changez Khan in fact, was arrested by DPO Fareed Jan Sarhandi and SIP Zulfiqar Arain, SHO, Dhabeji Police Station, as complained by the petitioners.
3. Learned District and Sessions Judge, Thatta will also ascertain whereabouts of Malik Changez Khan and will obtain his attendance before him and record his statement also. If, upon recording of statement of Malik Changez Khan, allegations made by the petitioners are found to be correct then appropriate criminal cases to be registered against delinquents."
4. Thereafter , the alleged abductee was recovered and his statement was recorde d by the District and Sessions Judge, Thatta. On 10.5.2010, the alleged abductee appeared before this Court and the following order was passed: ".... consequently , we direct that statement of petitioner No.1 Malik Changez Khan recorded on 08.05.2010 before the learned District and Sessions Judge, be incorporated in 154, Cr. P. C. book maintained by the Police Stations Thatta and action be taken in accordance with law ."
5. Accordingly , the statement of applicant, Malik Changez Khan was incorporated in 154, Cr.P.C. book of Police Station Thatta and FIR was lodged accordingly . The Judicial Magistrate, on submission of the Challan, wherein a number of alleged accused including respondent No.2, were let off, took cognizance of the offence against all accused persons by passing an order dated 05.06.2010. However , the applican t, through the Deputy Director Public Prosecutor , filed an application on 28.4.2018, seeking transfer of the case to the Anti-T errorism Court which as stated above, was dismissed vide the impugned Order , hence this criminal revision application.
6. I have heard learned counsel for the appellants as well as learned D.P.G. appearin g for the State and perused the material available on the record.
7. Learned counsel for the applicant, at the very outset, submitted that from the contents of the FIR, an offence for abduction for ransom in terms of section 365-A, P.P.C. has been made out; however , the police, with mala fide intention, have not sent the FIR to Anti-T errorism Court, nor did they file the charge sheet before the Anti-T errorism Court. Per learned counsel, by filing the FIR and the charge sheet before the Ordinary Court, the police have committed illegality . In support of his above contention, learned counsel for the applicant relied on the case of Junaid Rehman and others v. The State and others (PLD 2011 SC 1135), Dost Muhammad v. The State and another (2005 MLD 1111) and - Muhammad Arshad Daud v. The State and another (PLD 1978 Quetta 187).
8. Therefore, the learned counsel submitted that since the case is exclusively triable by the Anti-T errorism Court, therefore, the same may, be withdrawn from the Court of 1st Additional Sessions Judge, Thatta and may be transferred to Anti-T errorism Court having jurisdiction.
9. Conversely , Mr. Shahadat Awan, learned counsel for respondent No.2, while opposing instant criminal revision application, submitted that the alleged incident, as is evident from the FIR, allegedly took place on 11.05.2010 and the FIR was lodged on 8.10.2010. He referred to Order dated 6.11.2010 passed by III Sr. Civil Judge and Judicial "Magistrate, Thatta, whereby , while taking cognizance of the case, he inserted sections 220, 342, 344, 365, 506 read with sections 147, 148, 149 and 34, P.P.C. in the FIR. Learned counsel vehemently submitted that order dated 6.11.2010, whereby the above sections were inserted in the FIR, had not been assailed by the applicant/complainant before any forum and, thus, the same has attained finality . He has also submitted that although allegations of enmity between the parties have come on record, but nowhere specific allegation regarding abduction of the applicant for the purpose of ransom has been made by the complainant. He submitted that charge against the accused has already been framed by the trial Court copy whereof is available on the record. Learned counsel submits that if during the trial, prosecution or the complainant party adduces any evidence establishing an offence involving capital punishment then it is within the competence of the trial Court to alter the charge under section 227, Cr.P.C. and announce the judgment as per law. He also referred to the memo of petition in C.P. No. D- 477/2010 and stated that name of respondent No.2 does not find mention in the array of respondents in the said petition as it was filed for seeking protectio n from the police officials. This creates doubt in respect of the allegations levelled by the applicant against respondent No.2. Learned counsel also submitted that in order to prolong the proceedings against the private respondents instant application for transfer of the case was filed otherwise the order passed by the Judicial Magistrate under section 173, Cr.P.C. was passed almost a decade ago and had also attained finality as it was not challenged before any forum. In support of his contentions, learned counsel placed reliance on the case Waris Ali v. The State 2017 SCMR 1572 , 2016 SCMR 174, Muhabat Ali and another v.
10. The State 2007 SCMR 142 and PLD 2008 SC 178. He lastly prayed for dismissal of the instant revision application.
11. Learned counsel appearing for respondents Nos. 3, 5 and 8, adopted the arguments of learned counsel for respondent No.2 and submitted that no case for abduction for ransom has been made out hence the application merits dismissal.
12. Raja Jawwad Ali, learned counsel for respondent No.4, while opposing the instant application, submitted that so far five witnesses have been examined by the trial court and even evidence of the present applicant has also been recorded on 14.02.2014, therefore, according to him, present application is only an attempt to drag on the proceedings.
13. Learned Deputy Prosecutor General fully supported the impugned Order and opposed the instant Criminal Revision Application and prayed for its dismissal.
14. I have given anxious thought to the subm issions made by learned counsel for the *ties and have gone through the case-law relied 'upon by the learned counsel for the parties. The case of Muhammad Arshad Daud (supra), relied upon by leaned counsel for the applicant, is totally on different facts as in that case the territorial jurisdiction of the court was under consideration on the ground whether the offence was committed within the territorial limits of the trial Court or not. Therefore, the said case is not attracted to the factual and legal aspects of present case.
15. So far as the case of Junaid Rehman and others (supra) is concerned in the cited case Hon'ble apex Court held that to constitute an offence for ransom actual payment of ransom and proof thereof are not sine qua non and the said offence also stands constituted if there is an abduction and the purpose of abduction is extortion of ransom or ransom is demanded for release of the abductee.
16. In the case of Dost Muhammad (supra), it has been held that provisions of section 227, Cr.P.C. empowered the Court to alter or add any charge at any time before judgment was pronounced. The law laid down in the said case rather supports the submission made by learned counsel for respondent No.2 that the trial court, at any time, if it so thinks, alter the challan by exercising powers vested in it under section 227, Cr.P.C., therefore, if at any time the trial Court comes to a conclusion that the challan has to be amended/altered by adding any other offence, it can do so easily .
17. In the case of Waris Ali (supra ), the learned Apex Court held that in cases of terrorism "mens rea" was essentially the object to carry out terrorist activities to overawe the State and that a mere fact that a crime for personal motive was committed in a gruesome or detestable manner , by itself, would not be sufficient to bring it within the meaning of terrorism or terrorist activities. It was also held that since Anti-T errorism Act was a special law, therefore, in construing and interpreting such. special law the Court had to look at the reasons and background which influenced the mind of the legislature in enacting such special law .
18. In the case of Mohabbat Ali (supra ) it was held that in order to determine as to whether offence would fall within the ambit of section 6 of the Anti-T errorism Act, 1997 it would be essential to have a glance over the allegations made in the FIR, record of the case and surrounding circumstances; it was also necessary to examine that, ingredients of alleged offence had any nexus with the object of the case as contemplated under sections 6, 7 and 8 of the Anti- Terrorism Act and whether a particular act was an act of terrorism or not, the motivation, the object, design or purpose behind such act was to be seen and it was also to be seen as to whether such act had created a sense of fear and insecurity in public or any section of public or Community or in any sect. Apart from the facts of the present case, it is also to be seen whether a Sessions Judge under the law is authorized to transfer a case from his docket to Anti-T errorism Court. A somewhat similar controversy came up before this Court in the case of Muhammad Akbar Khan v. SHO. Gahri Khairo, District Jacobabad (2017 PCr.LJ 1280) wherein the following observations were, made: "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-T errorism Court but being a District and Sessions Judge/Additional Sessions Judge is not authorized to declare any offence as scheduled offence. In fact the, Anti-T errorism Court 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 Court of Anti-T errorism Court' Act in a situation where the learned Sessions Court/Additional Sessions Court is of the opinion that alleged offence is triable by the Anti-T errorism Court as the comm ission of the crime has created panic and terror amongst the people and the manner the crime 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 "526. High Court may transfer case or itself try it (1)
19. (b)
20. (c)
21. (d)...........
22. (e)
23. (2)
(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 initiative."
24. 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 trans fer of the case from the Court of Sessions to the Anti-T errorism Court.
25. Reference can he had to from the case of Naseem v. The State (1997 MLD 275) whereby the Single Bench of this Court has held as under: ..."
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 party , 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 [he] 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 as contemplated by section 528, Cr. P. C. or section 4 of Suppression of Terrorist Activities (Special Courts) Act, 1975 or section 23 of the Anti-T errorism 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.
26. Reference can be had from the case of Muhammad Iqbal v. The State reported in (1992 MLD 287) whereby the 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 Courts subordinate to him, to the Judge, Special Court (Suppression of Terrorist Activities), under the provisions of sectio n 528, Cr.P.C., it must be straight forward 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 another Special Court."
11. The sum up total of the above discussion is that the Anti-T errorism Courts do posses jurisdiction to transfer the case to the Court of Ordinary jurisdiction, however , no such powers are available to Courts of criminal jurisdiction to transfer the case from its docket to the Anti-T errorism Court in a situation where learned Sessions Judge is of the opinion that alleged offence is triable by the Anti-T errorism Court if he comes to the conclusion that the commission of the crime has created panic and terror amongst the people and the manner in which the crime has been committed has developed sense of fear and insecurity in the mind of 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) of section 526, Cr .P.C."
27. A perusal of the impugned Order shows that the learned trial Court has discussed the merits of the case in some detail to come to the conclusion that the facts disclosed do not constitute a scheduled offence; however , I am not inclined to discuss the merits of the case as it may prejudice the case of any of the contesting parties before the trial Court. Suffice it to observe that the FIR was lodged by the complainant on 11.5.2010; charge sheet in the said FIR was submitted in which a number of accused persons, including respondent No.2, were let off. However , the following order was passed on the final charge sheet: "Therefore, L by taking cognizance of the offence against all the accused persons under sections 220, 342, 344, 365, 506, read with 147, 148, 149, 34, P.P.C., Admit. Register the challan and notice be issued to the accused shown in column No. II to face their trial. NBW be issued against the absconders accused person. Since the offence under section 220, P.P. C. is exclusively triable by the Court of the Sessions, therefore, R&P be submitted to the honourable Sessions Court, Thatta, after observing all the legal formalities."
28. This order , as rightly argued by learned counsel for respondent No.2. Was not challenged by any party before any forum and, thus, it attained finality . In case the applicant was aggrieved by insertion of section 365, P.P.C., he should have assailed the same before the appellate forum within the stipulated time. The present application for transfer file before the trial Court at such a belated stage was rightly dismissed by the trial Court.
29. However , even otherwise, in view of the above cited judgment of this Court, which has been reproduced in extenso, I am of the considered view that learned Sessions Judge/Additional Sessions Judge do not have any powers vested in him/them by virtue of any law, which enables him/them to transfer any case from their docket to Anti- Terrorism Court or any Special Court constituted under Suppression of Terrorist Activities (Special Courts) Act, 1975.
30. In view of above discussion, I do not find any merit in the instant criminal revision application, which is accordingly dismissed.