' This application has been moved by the complainant in case F.I.R. No,66/90 dated 21-5-1990 under sections 302/148/149/109, P.P.C. At Police Station Waneke Tarar, District Gujranwala seeking transfer of the said case from the Court of Mr. Zahoor Hussain, Judge Special Court for Suppression of Terrorist Activities, Gujranwala.
2. Admittedly the challan of the said case was originally submitted to the Court of Session, Hafizabad. The Federal Government in exercise of powers conferred under the Special Courts for Speedy Trials Act, 1992, transferred the same to a Court established under the said Act for trial. It was pending in the later Court when the Special Courts for Speedy Trials Act, 1992 was repealed through Ordinance LII of 1994 which was promulgated on 13-7-1994. As to what further course of action was to be adopted in respect of the cases pending before the Special Courts for Speedy Trials, section 2(2), clause (d) provided that all such cases shall stand transferred to the respective Courts of Sessions of the area where the cases were registered against the accused. Sub-clause
(e) provided that the Court of Session would on receipt of any case from a Special Court under clause (d) try it in accordance with the provisions of the Criminal Procedure Code, 1898.
3. By operation of the said provisions of the repealing Ordinance the case in question stood transferred to the learned Sessions Judge, Hafizabad therefore the record was transmitted to the said Court.
4. On 26-2-1995, learned counsel for the respondents pointed out to the learned Sessions Judge that the case was exclusively triable by the Special Judge for Suppression of Terrorist Activities, Gujranwala Division, Gujranwala as the offence was a scheduled offence under Suppression of Terrorist Activities Act, 1975. The correctness of this legal submission according to.The said order was conceded by the learned D.DA. Therefore, it was ordered that the file of the case be presented to the Court of Mr. Zahoor Hussain, learned Judge, Special Courts for Suppression of Terrorist Activities, Gujranwala and the parties were directed to appear before the said Court on 14-3-1995.
5. Through this petition the complainant has taken exception to the transfer of the case through the said order to the Court of learned Judge, Special Courts for Suppression of Terrrorist Activities.
6. Learned counsel for the respondents submitted that application under section 561-A, Cr. P.0 for transfer of a case from the Court of Mr. Zahoor Hussain, Judge Special Court for Suppression of Terrorist Activities, Gujranwala is not maintainable as the power to transfer a case from a Court established under Suppression of Terrorist Activities Act, 1975 is vested in the Provincial Government which is to be exercised on behalf of the Provincial Government by the Secretary, Home Department.
7. Learned counsel for the petitioner submitted that whatever may the form of this application and irrespective of the prayer made therein the petitioner wants to question the legality of order dated 26-2-1995 passed by the learned Sessions Judge, Hafizabad which order having been passed by the said Court, could be questioned under section 561-A, Cr. P.C. And if the said order is quashed the consequence would be that the case shall be deemed to have never been transferred from the said Court and shall also be deemed to be still pending before it.
8. The arguments of learned counsel for the petitioner has force. I am not called upon in this case to decide the question as to whether this Court is empowered to transfer a case from the Judge Special Court for Suppression of Terrorist Activities for if order dated 26-2-1995 passed by the learned Sessions Judge, Hafizabad is set aside qua which jurisdiction under section 561-A, Cr.P.C.
Undoubtedly vests in this Court, the case shall be deemed to be still pending in the said Court and to have never been transferred.
9. Ordinance (LII of 1994) was substituted by a similar Ordinance (XXIV of 1995). Clauses (d) and (e) of subsection (2) of section 2 of this Ordinance provided that all cases pending before the Special Courts at the time of repeal of the Special Courts for Speedy Trials Act, 1992 with effect from 26-7- 1994 would stand transferred to the respective Courts of Session of the area or such other Courts where the cases were registered against the accused and the Court of Session or such other Court as the case may be shall try the same in accordance with the provisions of the Criminal Procedure Code, 1898. The expression "such other Courts" was added in this provision of the Ordinance whereas such an expression had not been used in the earlier Ordinance. In view of this amendment made in the later Ordinance, learned counsel for the respondents attempted to argue that the expression "such other Courts" used in the later Ordinance means that the case was not necessarily to be tried after transfer, by the Court of Session alone and could be entrusted to other Court having jurisdiction to try the same under any other law and this case since was triable by a Court established under the Suppression of Terrorist Activities Act, 1975 therefore its transfer to the said Court was legally justified to which no exception can be taken.
10. The argument of learned counsel for the respondents appears to be ingenious but not tenable on close scrutiny. Subsection (3) of section 2 was also added in this Ordinance to meet the situation created by the use of expression "such other Courts" in clauses (d) and (e) thereof.
Subsection (3) is relevant to resolve this controversy therefore it is reproduced below in extenso:-- "Subsection (3).--Where a case was transferred to the Special Court from a Court other than the Court of Session, such Court of Session shall, on receipt of the case under clause (d) of subsection
(2) transmit it to that Court for further proceedings: ' Provided that where a case was transferred to the Special Court before the completion of investigation or submission of report under section 173 of Code of Criminal Procedure, 1898 (Act V of 1898), and in the case the investigation has not been completed or the report has not been submitted, such case shall be transmitted to the concerned investigation agency for further action."
11. It is demonstrably clear from this provision of the Ordinance that all the cases pending before the Special Courts established under Special Courts for Speedy Trials Act, 1992 after its repeal stood transferred to the Court of Session. The Court of Session was empowered to transmit only those cases to other Courts which were earlier transferred to a Court established under the Special Courts for Speedy Trials Act, 1992 from a Court other than the Court of Session and not others. The case in question was admittedly transferred from the Court of Session to a Court established under Special Courts for Speedy Trials Act, 1992 therefore after the repeal of the said Act under the command of repealing Ordinance stood transferred to the Court of Session and could not be transferred to any other Court. Proviso to subsection (3) places the matter beyond any possible ambiguity. It is clear from this provision of the Repealing Ordinance that the criteria as to which Court was to try the case after repeal of Act, 1992 was as to from which Court it was transferred to the Court established under the Special Courts for Speedy Trials Act, 1992.
12. The Court of Session under the mandate of law was to try this case itself and could not transfer the same to any other Court therefore order dated 26-2-1995 is not sustainable in law.
13. Learned counsel for the respondents in order to overcome this difficulty attempted to argue that the case was triable exclusively by a Court established under the Suppression of Terrorist Activities Act, 1975 being scheduled offence therefore Court of Session was not vested with the jurisdiction to hold trial in the same even at the point of time when it was pending before it after submission of challan when it was transferred to the Court established under the Special Courts for Speedy Trials, Act, 1992 therefore after repeal of the said Act it should have been transferred to the Court established under Suppression of Terrorist Activities Act, 1975. This argument cannot be accepted without doing violence to the express provisions of the two Repealing Ordinances which provided as to which Court after the repeal of Special Courts for Speedy Trials Act, 1992 should try such cases. This being a special law providing the forum as also the manner of trial of such cases after transfer has overriding effect on the Suppression of Terrorist Activities Act, 1975. The effect of Repealing Ordinance was that all those cases which were pending before a Court established under Special Courts for Speedy Trials Act, 1992 at the time of repeal of the said Act as a class were to be dealt with and tried and decided in accordance with these Ordinances. Notwithstanding anything to the contrary contained in any other law.
14. For the foregoing reasons, this application is accepted. Order dated 26-2-1995 passed by the learned Sessions Judge, Hafizabad is hereby quashed as a consequence of which the case F.I.R. No, 66/90 dated 21-5-1990 shall be deemed to be pending before the said Court, under clauses (d) and (e) of the Repealing Ordinances which shall be tried and decided by it in accordance with law.
The parties are left to bear their own costs.