1. ' MUHAMMAD HALEEM, C.J.--The petitioner seeks leave to appeal against the order dated 1-8-1988 of the High Court of Baluchistan, Quetta, by which Constitution Petition No,173 of 1988 was dismissed in limine.
2. ' The petitioner was booked for the murder of Najubullah, a Traffic Sergeant, by firing a pistol shot at him on 21st of. September, 1987, causing his death.
3. ' A case was registered against the petitioner at City Police Station, Quetta, and he was arrested.
4. The challan of the case, after usual investigation, was filed in the Court of Sessions Judge, Quetta, from where it was sent to the Additional Sessions Judge, Quetta, for the trial of the petitioner. The trial commenced on 24th of December, 1987, on the charge being read over, and thereafter two prosecution witnesses were examined and the cross-examination of the third prosecution witness was reserved.
5. ' On some application filed by the mother of the deceased on 3rd of February, 1988, for the transfer of the case from the trial Court to the High Court, the learned Chief Justice of the High Court of Baluchistan directed the trial Court to hear the case from day-to-day. And in compliance of that order, the trial Court was hearing the case from day-to-day.
6. ' It appears that the petitioner was produced before the Special Court on 14th of July, 1988, as a result of an order dated 26th of June, 1988, passed by the Additional Chief Secretary (Home) transferring the case to that Court under section 5(2) of the Special Courts for Speedy' Trials -Act, 1987. The order reads as under: "No,So (JUDL.) 8(1)/87-VII./861-65.-- In exercise of powers conferred under Section 5 of the Special Courts for Speedy Trial Act, 1987(XV of 1987), the Government of Baluchistan is pleased to transfer the case FIR No,93/87 under section 302, P.P.C. Of Police Station City Quetta pending in the Court of Additional Sessions Judge-I, Quetta to the Special Court headed by Mr. Justice Mir Nazar Khan Khoso, established vide Government of Baluchistan's Notification No,S0 (Judl.) 5(10)/87, dated the 5th May, 1988."
7. ' It is this order which was challenged in the constitution petition and before us.
8. ' The learned counsel for the petitioner objected to the vires of the order on the ground that as the case was being heard from day-to-day, the exercise of power was discriminatory, in that; there was no occasion to transfer the case from the Court of competent jurisdiction under the Code of Criminal Procedure to that of the Special Court; and the moreso when no reason was given as to why this special power was exercised beyond reproducing the words of. Section 5(2) of the Special Courts for Speedy Trials Act, 1987, (hereinafter called "the Act"). In other words, according to him, it was a colourable exercise of power.
9. ' In order to appreciate the contention of the learned counsel -for the petitioner, it will be necessary to examine the definition of the word "offence" in clause 2(c) which means "an offence specified in the Schedule which, in the opinion of the Government, is gruesome, A brutal and sensational in character or shocking to public morality or has led to public outrage or created panic or an atmosphere of fear or anxiety amongst the public or a section thereof".
10. ' In the context of this definition, an offence cannot be an offence specified in the Schedule unless' it conforms to the guidelines mentioned above, It is the commission of this offence which the Special Court can take cognizance of under section. 7 of the Act in pursuance of a report under section 173 of the Code of Criminal Procedure. There is, therefore, a duty cast on the Special Court before it takes cognizance to satisfy itself that the guidelines exist to give to it the jurisdiction to try the case.
11. 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 an 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.
12. ' We find from the order that while transferring the case from the Court of a competent jurisdiction, there is no consideration of C the guidelines which renders the order, on the face of it, illegal.
13. 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. . ' The learned Assistant Advocate-General appearing for the State could not support the case apart from contending that no prejudice is caused. This is hardly a defence to an order which is patently illegal.
14. ' Accordingly, we would convert this petition into an appeal and allow the same with the result that the order of the Additional Chief Secretary, Home, dated 26th of June, 1988, is quashed, and in consequence thereof the case of the petitioner shall stand transferred to the Court of the Additional Sessions Judge-I, Quetta, for being tried from day to day as ordered by the High Court. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.