' MUNAWAR AHMED MIRZA, J.--Petition No,198/88 as well as Constitution Petitions Nos.219/88 and 221/88 broadly deal with similar points of law, therefore, same are being decided by this common judgment.
2. Facts leading to Petition No,198/88 are that on 7-1-1988 one Noorullah was murdered in Karakh Bazar District Khuzdar and F.I.R. No,1/88 was registered with Karakh Police Station. After completion of investigation challan under section 302/109, P.P.C. Was submitted before Deputy Commissioner, Khuzdar on 19-6-1988. Ultimately in accordance with provisions of Criminal Law (Special Provisions)
Ordinance, II of 1968 (hereinafter referred to as Ordinance-II of 1968) a Tribunal was constituted on 25-6-1988. It appears that respondent No,2 approached Additional Chief Secretary Home, Government of Baluchistan (Respondent No,1) seeking withdrawal of the case for trial by Special Court for Speedy Trial Act, 1987 (hereinafter referred to as Special Courts Act, 1987 who by means of order dated 6-7-1988 transferred the same to Special Court, which is impugned in this petition. The order is reproduced below:-- GOVERNMENT OF BALUCHISTAN HOME AND TRIBAL AFFAIRS DEPARTMENT ' Dated Quetta, the 6th July, 1988: ' ORDER ' No,S.O. (Judl) 5(10)/87-- 1987-89. In exercise of powers conferred under section 5 of the Special Courts for Speedy Trials Act, 1987 (XV of 1987), the Government of Baluchistan is pleased to transfer the murder case of Noorullah son of Ghulam Muhammad Sub-Tehsil Karakh District Khuzdar to the Special Court established vide Government of Baluchistan's Notification No,S.O. (Judi) 5(10)/87 dated the 5th May, 1988.
3. Facts relating to Constitution Petition No,219/88 are that on 7-7-1988 a report was lodged with Naib-Tehsildar Tamboo regarding murder and attempt to murder Sardar Mohim Khan Umrani and his companions at Umrani Shakh nedr Dera Murad Jamali. After completion of investigation challan under section 302/307/434/435/34, P.P.C. Was submitted before Assistant Commissioner Pat Feeder at Dera Murad Jamali on 30-8-1988 for adjudication as contemplated by Criminal Law (Special Provisions) Ordinance-II of 1968. However before further proceedings could be drawn, respondent No,1 transferred the case in public interest vide order dated 12-9-1988 for trial under.
The Provisions of Special Courts Act, 1987. This petition was filed on 30-11-1988 challenging order of respondent No,1, which is however, reproduced below:-- ' GOVERNMENT OF BALUCHISTAN HOME AND TRIBAL AFFAIRS DEPARTMENT State v.
1. Muhammad Usman s/o Alam Khan.
2. Arbab son of Alam Khan.
3. Shah Nawaz son of Abdullah.
4. Sultan son of Abdul Latif.
5. Shah Murad son of Mir Muhammad.
' Offence under section 302/307/435/34, P.P.C. ORDER ' In view of the circumstances, the Government of Baluchistan is of the opinion that the above- mentioned case is fit for trial by the Special Court constituted under the Special Courts for Speedy Trials Act, 1987 in the interest of public.
2. Therefore in exercise of powers conferred under section 5 of the Special Courts for Speedy Trials Act, 1987, the Government of Baluchistan is pleased to transfer the said case to the Special Court established vide Notification No,S.O. (Judi) 5 (10)/87 dated 5th May, 1988.
' Constitution Petition No,221/88.
' Facts pertaining to Constitution Petition No,221/1988 are that, on 13-6-1988 F.I.R. No,73/88 was registered with City Police Station, Quetta under section 302/307/452, P.P.C. Alleging that petitioners being armed entered the house of Nazim Ali and assaulted him, his mother and father, on account of which Nazim succumbed to injuries whereas Mst. Surraya Begum and Hafiz Noor Muhammad were severely wounded. After completion of investigation challan was submitted before learned Sessions Judge, Quetta for trial under regular law. However enquiry within the purview of section 465, Cr.P.C. For ascertaining mental capacity of petitioner was being held when respondent No,1, by means of order, dated 12-9-1988 transferred the case for trial under the provisions of Special Courts Act, 1987. Aggrieved from aforesaid orders, this petition was filed on 3-10-1988. The impugned order is reproduced below:-- "GOVERNMENT OF BALUCHISTAN HOME AND TRIBAL AFFAIRS DEPARTMENT. Dated Quetta, the 4th September, 1988.
' State through Sheikh Nazim Ali, resident of Faiz Muhammad Road, Quetta Versus ' Manzoor alias Jori.
' Offence under sections 302/307/452, P.P.C. Of P.S. City Quetta of District Quetta.
'In view of the circumstances of the case and in the interest of public the Government is of the opinion that it is a fit case for trial by the Special Court constituted under Act (XV of 1987).
' Therefore in exercise of powers conferred under section 5 of the Special Courts for Speedy Trials Act (XV of 1987) the Government of Baluchistan is pleased to transfer the above-mentioned case for trial to Special Court established vide Government of Baluchistan's Notification No,S.O. (Judl.)
5(10)/87, dated the 5th May, 1988.".
4. M/s. Basharatullah, Khalid Malik and Ehsanul Hall, Advocates for respective petitioners vehemently urged the following points;
(i) Cognizance of offence had been taken as prescribed under Criminal Law (Special Provisions)
Ordinance-II of 1968 therefore in the event of withdrawal of case from said forums it was obligatory for the competent authority to afford opportunity of hearing before transferring the case to Special Court. Reliance is placed on following decisions;
(1) Abdus Saboor Khan v. Karachi University and another (PLD 1966 SC 536).
(ii) Hdme Secretary to the Government of West Pakistan, Lahore and others v. Jan Muhammad and another (PLD 1969 SC 333).
(iii) Syed Muhammad Azim and others v. The State and others (PLD 1970 Quetta 27).
(iv) Rana Muhammad Afzal v. Inspector-General of Police,W.P., Lahore and another (PLD 1974 SC 31).
(v) Syed Jamil-ul-Hassan Mazloom v. District Magistrate Gujranwala and others (PLD 1976 Lahore 183).
(ii) Punishment by Courts created under Special Courts for Speedy Trial's Act, 1987 is harsher and severer than provided under Ordinance II of 1968, therefore transfer of case to Special Court is not lawful.
(iii) Forums for original trial created under Ordinance-II of 1968, are not Courts therefore, Government was not competent to withdraw the case for trial by the Courts under "Special Courts Act".
(iv) Prejudice is caused to accused when case is withdrawn for trial by Special Court.
5. Whereas Raja Muhammad Afsar and Iftikhar Muhammad learned counsel for respective private respondents opposing the petitions strenuously contended that 'Government' has sole discretion to transfer the case, pending before any forum to 'The Court' constituted under "Special Courts Act, 1987". Thus neither prejudice can be caused nor any justification exists for providing hearing while directing transfer of the case. Following judgments were relied;
(i) The State v. Nawab Gul (PLD 1963 SC 270).
(ii) Manzoor Ahmed v. Commissioner, Lahore Division (PLD 1964 SC 194)
(iii) Syed Ali Nawaz Gardezi v. Lt.-Col. Muhammad Yousuf (PLD 1963 SC 51).
(iv) Dilawar and others v. Commissioner, Peshawar Division and another (PLD 1965 Pesh. 61).
(v) Zulfiqar Ali Bhutto v. The State (1978 P Cr. L J 332).
6. Mr. Muhammad Moquim Ansari, learned Amicus Curiae, canvassed that, specific type and character of "offences" triable under the provisions of Special Courts Act, 1987 is defined in section 2(c). Therefore, Government is competent to transfer the matter for trial by 'Special Court' and opportunity of hearing as claimed by petitioner is not required. He further contended that, by virtue of section 5(2) of 'Special Courts Act' any case relating to "offence" as defined by section 2(c) which is pending adjudication could be transferred in the public interest, and objection that original forum under Ordinance II of 1968 is not a Court, will have no effect.
7. Learned Advocate-General emphatically submitted that legislation concerning penal offences are regulated by items (1) and (2) of concurrent Legislative List in the Fourth Schedule. Therefore, under Article 142(b) of the Constitution, 'Parliament' as well as 'Provincial Assembly' has power to make law with respect to matters contained in concurrent legislative list. Similarly by virtue of Article 143 of Constitution if any inconsistency of Provincial Legislation subject-matter of Concurrent List is pointed out in that event to the extent of repugnancy, Federal Law shall prevail.
Additionally it was argued that 'Special Courts Act, 1987' has overriding effect. Learned Advocate- General however candidly conceded that while exercising authority under Section 5(2) of 'Special Courts Act, 1987' the accused should be provided opportunity of hearing.
' We have heard arguments advanced by learned counsel for parties and record our reasons as under.
8. Firstly it may be seen that 'Special Courts Act, 1987' having been passed by the Parliament received assent of President on 16-11-1987. The preamble suggests, that it has been enforced to provide speedy trial for certain offences and execution of sentences in regard to matters connected therewith. Offences covered by this enactment are defined in section 2(c) which is reproduced below:-- "Offence" means an offence punishable under any law for the time being in force which in the opinion of the Government is gruesome, brutal, sensational in character or shocking to public morality or has led to public outrage or created a panic or an atmosphere of fear or anxiety amongst the public or a section thereof."
' Whereas section 3 expressly specifies overriding effect, of the enactment notwithstanding anything contained in the Code or any other law for the time being in force. Besides section 5 explicitly authorises Government to refer cases pending adjudication for trial by the Special Court.
Section 7(3) provides jurisdiction of Special Courts to take cognizance of any offence within the purview of section 190 of the Criminal Procedure Code. Similarly sections 5(1) and 7(1)(2) deal with procedure whereby Government could transfer case relating to offence which has been registered and powers of Special Court to regulate remand and take cognizance in the matter. Evidently 'Special Courts Act, 1987' is Central and Special Law, promulgated to deal with peculiar type of offences, therefore undisputedly it would supersede all earlier special or local legislation in respect of matters B incorporated in said enactment. It is pertinent to mention here that any inconsistency or repugnancy in the earlier laws, whether local or of general nature to the extent of offences prescribed under Special Courts Act, 1987 would be deemed void by virtue of Article 143 of the Constitution of Islamic Republic of Pakistan. Thus offence covered by Special Courts Act, 1987 shall clearly be regulated and tried by the Special Courts and would be punishable as prescribed by law.
Moreover section 3 of the enactment contains supervening and over-riding effect, therefore it would prevail on all other existing laws. In this behalf we are also supported by the observation in judgment reported as Maqsood Ahmed v. Summary Military Court PLD 1980 Quetta 71). It is well settled that legislature is presumed to be aware about all existing laws of the Country. Therefore, objections raised by petitioner that former laws or procedure prescribed lesser punishment is neither relevant nor has any substance. In the D same way contention that forum under Ordinance II of 1968 does not constitute Court loses significance because underlying intention and object of Special Courts Act, 1987 appears to be for public interest so that offences which in the opinion of competent authority are gruesome, brutal, sensational in character or shocking to public morality, or leading to public outrage or create panic or atmosphere of fear or anxiety among the public or any section thereof, would be tried by Special forum. Accordingly word 'Court' used in section 5(2) of. The Special Courts Act has wider import covering all forums where matters which fulfil the requirement of section 2(c) are found pending. Lastly main question which arises for examination is whether at the time of transferring the case 'Government' under section 5(2) of 'Special Courts Act, 1987' could do so without notice to accused or an opportunity of hearing is obligatory.
9. There is no doubt that accused who is facing trial has no right to select forum of his trial and normally prosecution in its discretion can seek adjudication from Court of competent jurisdiction.
However, when once choice has been exercised by submitting the challan before a Court of law then if subsequently appropriate Government forms an opinion to transfer the case for trial, to special Court obviously prior notice to accused with opportunity of hearing would be desirable.
Principle of law enunciated in reported judgments relied upon by respondent relates to transfer of cases to other Court for trial within the same law therefore, it would not be helpful to the facts of instant case. For the above conclusions we are fully supported by the observation in following reports:-
(1) Home Secretary to the Government of West Pakistan, Lahore and another v. Jan Muhammad (PLD 1969 SC 333) "Depriving an accused person of the safeguards provided in the cede of Criminal Procedure and the Evidence --Act is a serious consequence which stems from the order of reference to the tribunal under section 3 of the Act. Would, it therefore, stand to reason that the person accused of scheduled offence should be denied the right of hearing before the Commissioner refers the question of his guilt or innocence to the Tribunal. The right is clearly recognised by section 18 which provides for an appeal to the Government from an order of reference under section 3 of the Act. An effective exercise of this right alone necessitates that the accused person should be heard before the Commissioner forms his opinion and gives the reasons in support of the order of reference.
' On the above premises the view adopted by the Full Bench of the High Court that a person accused of a scheduled offence has a right to be represented before the Commissioner while he is determining to refer the question of his guilt or innocence to Tribunal is plainly correct. In the result both the appeals fail and we hereby dismiss them."
(ii) Syed Muhammad Azim and others v. The State and others (PLD 1970 Quetta 27).
"11. Adverting to the objection that the learned E.A.C. Had not heard the accused persons before ordering the registration of the case under the new Ordinance, learned counsel appearing on their behalf vehemently argued that the order is violative of principles of natural justice. He relied on Jan Muhammad v. Home Secretary, Government of West Pakistan and others PLD 1968 Lab. 1455 in which a reference made under section 3 of the West Pakistan Criminal Law (Amendment) Act, 1963, by the Commissioner to the Tribunal without hearing the accused was held to be illegal. The Full Bench judgment of this Court had the approval of the Supreme Court in Home Secretary Government of West Pakistan and others v. Jan Muhammad and another PLD 1969 SC 333 though section 3 of the West Pakistan Criminal Law (Amendment) Act does not specifically provide hearing by the Commissioner before reference to the Tribunal as in the instant case, it was therefore, imperative for the Magistrate to have heard the accused whose right of trial under the normal law he intended to take away by his order."
(iii) Rana Muhammad Afzal v. Inspector-General of Police W.P. Lahore and another (PLD 1974 SC 31)
"Kh. Sultan Ahmed learned counsel for the appellant has contended that as no show-cause notice was issued to the appellant, the order of the respondent No,1 opening the history-sheet of the appellant is illegal and void. In support of his contention he has relied on a decision of this Court in Government of West Pakistan and another v. Muhammad Akhtar Mir PLD 1971 SC 55. It was held in, that case as under:- "We are therefore, of the view that whenever a history-sheet is opened under rule 23.9 of the Punjab Police Rules on the ground that the person concerned is reasonably believed to be habitually addicted to crime or to be an aider or abettor of other criminals, an opportunity of showing cause against the opening of the history sheet must be given to the person."
' This decision supports the contention of the learned counsel for the appellant. Under the Constitution of 1962, taking of any action detrimental to the life, liberty, body and reputation of any person except in accordance with law is forbidden. There is a constitutional guarantee for the protection of a person's reputation. As held in the above case, "the rule of natural justice is to be presumed to be grafted into every law. According to this rule, no action affecting the reputation of any person can be taken unless he has been given an opportunity of showing cause against the action proposed to be taken." The learned counsel for the respondent has not been able to satisfy us that the view taken in the above case is not in accordance with law. We would, therefore hold that a show-cause notice should have been issued to the appellant and as that was not done, the impugned order is illegal."
' Additionally learned Advocate-General also conceded that opportunity of hearing needs to be provided to the accused when order of transferring the same is intended to be passed by Government under section 5(2) of Special Courts Act, 1987. At this stage we would like to point out that mere reproduction of relevant provisions of law in the order of transfer, factually does not fulfil requirements regarding formation of opinion by Government. It would be necessary that in such case objective consideration of public interest should be reflected in the order of transfer passed by the appropriate Government. Observations of Hon'ble Supreme Court in case Muhammad Yakoob v. Government of Baluchistan (Civil Petition No,387-K/1988) decided on 29-8-1988 PLD 1989.5 C 13 in this behalf are sufficiently instructive therefore, reproduced below:-- "Reading therefore the definition of the word "offence" in section 2(c) and section 5 of the Act together a conclusion is obvious that unless the "offence" satisfies the guidelines enumerated in the definition, the power to transfer the case cannot arise in the public interest which is in expression of wide import and means "general social welfare or regard for social good and predicating interest of the general public in matters where a regard for the social good is of the first moment". (See Law Lexicon 2nd Edition, 1986, Vol.
3. Pp.1956-1957). The opinion therefore, should be relatable to the guidelines which are elemental in the concept of "public interest" and this should appear from the order itself.
' We find from the order that while transferring the case from the Court of a competent jurisdiction, there is no consideration of the guideline which renders the order, on the face of it illegal, needless to say that as there is deprivation of jurisdiction of the competent Court, the power is to be exercised with care and caution within the parameters laid down in the Act."
' It may be seen that absolutely no reasons except reiterating the provisions of law have been mentioned in the impugned order. Therefore, considering relevant provisions of law in the light of above discussion as well as concession made by learned Advocate-General we are inclined to partly accept the petition and set aside the impugned orders only on the ground of having been passed in violation of principles of natural justice, and remand the matters to respondent No,1 for re-examining the same according to law after giving opportunity of hearing to the accused. The petitions are disposed of accordingly with no order as to costs.