' JAVED IQBAL, J.--- This is a Constitutional petition preferred under Article 199 of the Constitution of Islamic Republic of Pakistan, (hereinafter referred to as the Constitution), with the following prayer:- - "Under the circumstances, it is most humbly prayed that order, dated 26-4-1994, of respondent No,1 whereby the case registered vide F.I.R., dated 10-2-1994, against the petitioner and his co-accused was transferred from the Court of Special Judge, (Anti-Terrorist Court) Quetta, to the Special Court for Speedy Trial, Quetta, may very graciously be declared to have been passed without lawful authority and thus being of no legal effect.
It is further prayed that pending the disposal of this petition, the pending trial proceedings of the aforesaid case be stayed."
' Briefly stated the facts of the case are that a case was got registered vide F.I.R., dated 10-2-1994 at Police Station Levies Ziarat District Quetta, under section 302/324/109/34, P.P.C. Against the petitioner and other co-accused by one Zarak Khan for the alleged murder of Muhammad Ali, Sardar Faqir Muhammad Tareen and Mussa Jan and murderous assault upon Doctor Muhammad Shafi, while they were on their way to Pishin from Duki by means of indiscriminate klashnikov firing.
The Government of Pakistan vide Notification, dated 26-4-1994 (hereinafter referred to as the impugned Notification) transferred the abovementioned case from the Court of learned Special Judge, Suppression of Terrorist Activities, Balochistan, Quetta, to the Special Court for Speedy Trial consisting of Mr. Justice Iftikhar Muhammad Chaudhary, for trial.
3. It is mainly contended on behalf of the petitioner by Mr. Aftab Farrukh, Advocate, that no reasons whatsoever has been given in the impugned Notification as to how the competent Authority formed an objective opinion that the alleged offences were gruesome, brutal and sensational in character. The learned counsel further contended that keeping in view the verdict of this Court in case titled Muhammad Rafiq v. Additional Chief Secretary (Home) Government of Balochistan PLD 1989 Quetta 45 it was incumbent upon the Government that while transferring a case from a Court of competent jurisdiction to a Court for Speedy Trial, the powers so vested should be exercised with care and caution and within the parameter laid down in the Act and mere reproduction of relevant portions of law in the order of transfer does not fulfil legal requirements regarding formation of an opinion by the Government. Reliance was further placed in another case titled Muhammad Yaqoob v. Government of Balochistan PLD 1989 SC 13. It is further argued with vehemence that the transfer order was discriminatory, arbitrary in nature and caused prejudice to the petitioner and all other co-accused. It is also urged emphatically that the petitioner was not provided any opportunity of showing cause before order of transfer was made, which is obviously and manifestly violative of the established principle of natural justice that the person affected must be afforded an opportunity of showing cause before an order having adverse implication against his interest, is passed. It is also mentioned that if the trial is concluded by the Special Court for Speedy Trial, then right of one appeal is curtailed, which would not be in the interest of justice.
4. The abovementioned position has been controverted strenuously by Mr. Raja Rab Nawaz, Deputy Attorney-General, in whose view the impugned Notification was neither arbitrary, nor discriminatory and the discretion vested in the Government in pursuance of section 5 of Special Courts for Speedy Trial Act, 1992 (hereinafter referred to as the Act) was exercised judiciously. It is also argued that the offences alleged to have been committed are not only gruesome and brutal but are sensational in nature and Federal Government after due and proper application of mind and scrutiny of relevant record issued the Notification, which cannot be challenged being lawful and in exercise of the powers conferred by the Act. It is further contended that cognizance has already been taken by the Special Court under section 7 of the Act and the trial is in progress. In view of the learned Deputy Attorney-General, the order whereby the cognizance was taken should have been challenged and in absence whereof the petition is not maintainable. He, however, conceded frankly that no challan in fact was pending adjudication in the Court of learned Special Judge, Suppression of Terrorist Activities, Balochistan, Quetta. It is also stressed that no prejudice whatsoever has been caused to the petitioner and as such the Notification does not call for any interference.
5. Syed Ayaz Zahoor, Advocate, who appeared on behalf of the complainant raised a preliminary objection that it would not be proper for this Division Bench to adjudicate upon the matter, since Mr. Justice Amir-ul-Mulk Mengal is a Member of Supreme Appellate Court, and the points raised now could have been agitated before his Lordship, while acting as Member of the Supreme Appellate Court and the appeal if any would be exclusively triable by the Supreme Appellate Court.
He also urged emphatically that only those grounds can be agitated before this Court, which are mentioned in the memorandum of petition as such, the arguments as adduced on behalf of the petitioner regarding the powers of Government under sections 5(1) and 5(2) of the Act, cannot be raised now and as such deserves no consideration. It is also pointed out that the copy of the challan has not been attached with the petition. He also supported the Deputy Attorney-General regarding the issuance of transfer Notification and submitted that the Federal Government was fully empowered for such transfer and moreso, the alleged offences were not only gruesome but sensational in nature, and therefore, the transfer order was neither in violative of the natural justice nor against the provisions as contemplated in the Act. He also referred a letter of Inspector- General of Police addressed to the Ministry of Law and Justice Division (Monitoring Cell) Islamabad, on the basis of which the Notification was issued by the Federal Government after proper application of mind.
6. We have given a thoughtful consideration to the abovementioned contentions as adduced on behalf of the petitioner and for the complainant in the light of relevant provisions of law and available record. We may mention here that in so far as the memorandum of petition is concerned that is silent regarding the objection that Federal Government was not competent to issue such Notification under section 5(2) of the Act, but on the contrary the said point was argued at length by Mr. Aftab Farrukh, who appeared on behalf of the petitioner. In so far as the language as used in sections 5(1) and 5(2) of the Act is concerned that is free from any ambiguity and a line of distinction has been drawn, which indicates that if the Government is of the opinion that a case relating to any offence, which has been registered should be tried and decided speedily, it may order that such case shall be tried by a Special Court meaning thereby that after registration of the case, the same can be transferred for trial to Special Court and Government would simultaneously also be competent to transfer any other case pending before any other Court for trial by a Special Court in the interest of expeditious dispensation of justice, which is the main object intended to be achieved through this Act. We may mention here that it has been left entirely on the discretion of the Government to transfer any case as mentioned above. In other word unbridled unfettered and unlimited powers have been conferred upon the Government subject to the only condition as mentioned above. The provisions as contemplated in the Act, would be rendered wholly illusory if the Government is asked first to form its opinion on the merits of the case and give elaborate reasons for its satisfaction. It is for the Court concerned to examine all the aspect regarding the merits of the case and the Government is only required to form a tentative opinion for transfer of a case to Special Court. The Provisions as contemplated under section 5 of the Act do not require that a lengthy exercise is to be made by Government before issuance of such transfer Notification, which is presumed to be issued on the basis of some material before the Government unless proved otherwise. It is to be noted that nothing could be brought on record to substantiate the version that Government did not consider any material before the issuance of said Notification. It was held by the Honourable Supreme Court of Pakistan, in case titled Liaquat Ali and others v. The State 1992 SCMR 372 as under:-- "It was also urged by Mr. Qureshi that factually there was no material before the Federal Government which could furnish foundation for pressing into service of subsection (2) of section 5 of the Ordinance. In this regard, we may observe that subsection (2) of section 5 of the Ordinance does not envisage a trial within a trial for the purpose of determining the question, whether transfer of a case to a Special Court would be in the public interest. The Federal Government is to examine whatever material is placed before it subjectively for forming an opinion on the above question. In the present case, nothing has been brought on record to indicate that the formation of the opinion by the Federal Government was without any material before it. We may further observe that this Court cannot go into the question, whether the material placed before the Federal Government was sufficient or insufficient for the formation of the above opinion. Once a notification is issued by the Federal Government, it is to be presumed that the opinion was formed by the Federal Government on the basis of some material before it, unless otherwise proved by the person making a contrary averment."
' The above reproduced dictum would make it clear that Government is fully authorised to make such transfer order. The main objection as raised on behalf of the petitioner seems to be devoid of merits that since the case was not pending in the Court of Suppression of Terrorist Activities, therefore, no order could have been passed in pursuance of subsection (2) of section 5 of the Act and the powers should have been exercised under subsection (1) of section 5 of the Act. The said objection cannot be taken into consideration for the reasons that the Government had exercised its power under section 5(2) of the Act, on the basis of letter addressed by the Inspector-General of Police, hence it cannot be said that the order was passed without application of mind and in an arbitrary manner. A careful scrutiny of the said letter would reveal that an information was communicated to the Government that case under consideration was pending in the Court of Special Judge, Suppression of Terrorist Activities and the relevant portion of the letter is reproduced hereunder for ready reference:-- "(II) An interim challan under P.P.C. And Q&D Ordinance has also been submitted against Haji Muhammad Shafique Nasir in the Court of Agha Wajid Special Judge, Anti-Corruption, Quetta. No witness has been examined in this case so far."
' In view of the said letter exercise of powers so vested cannot be termed as arbitrary and fanciful or without proper application of mind.
7. No prejudice whatsoever has been caused to the petitioner for the reasons that Special Court consists of a Judge of a High Court, who of course is in a better position to appreciate the legal and factual position properly and moreso, the nature of prejudice has not been clarified and, thus, mere assertion or accusation in this regard would not be sufficient enough till supported by cogent reasons. We may mention here that the matter of transfer exclusively falls within the domain of Government and the opinion of the Government that a case is gruesome, brutal and sensational in character cannot be challenged. In so far as the concept of public interest is concerned that is no more available under the Act and sole discretion has been conferred upon the Government to deal such matters as may be deemed fit and proper. In this regard, we are fortified by the dictum laid down in case Farman Ali v. State 1992 SCMR 2055. We have also examined the verdict of this Court reported in PLD 1989 Quetta 45 and relied upon by Mr. Aftab Farrukh, learned counsel for petitioner.
It may be mentioned here that the said authority is distinguishable and cannot be made applicable to this case, for the simple reasons that the case dealt with in the abovementioned authority was that of a peculiar nature and registered under the Provisions of Ordinance II of 1968, wherein the maximum punishment provided was 14 years and in case of transfer it could have been enhanced to that of death sentence under ordinary law, as such it was considered advisable that opportunity of hearing must be given to the accused before such transfer. But in the case under consideration, no such ground is available to the petitioner.
8. We have also focused our attention on the point whether transfer Notification was in contravention of the provisions as contemplated under Article 25 of the Constitution. This point was dealt with elaborately in case titled Ziaullah Khan v. Government of Punjab PLD 1989 Lah. 554 wherein it was observed as under:-- "The offences triable by Special Courts constituted under the Special Courts for Speedy Trials Act, 1987 are duly classified with reference to their special features and characteristics mentioned in the definition contained in section 2(c). The classification so made also appears to be quite reasonable because instances are not wanting where the crimes of murder, dacoity, robbery, kidnapping and abduction are committed in a manner and under the circumstances which bring them within the mischief of the definition of 'offence' embodied in section 2(c). In fact, the offences as are visualized in the said definition are unfortunately becoming the order of the day. Such offences by reason of the peculiar characteristics and special features attending them are distinguishable from stray cases of similar offences or even same species of offences committed under ordinary circumstances. They can, therefore, well be constituted into a Special class of offences requiring special treatment. In the field of criminal justice, a classification can well be made on the basis of heinousness of the crime committed, the degree of harm/evil likely to be caused to the society as a whole or a part thereof as a result of the commission of certain offences or the necessity of preventing certain immoral or antisocial effects of a particular crime. In the circumstances, the classification of the offences having special feature/characteristics as are mentioned in the definition is quite valid and reasonable based as it is on the intelligible differentia....
' The classification made had the rational relation with the object sought to be attained by the legislation. Both the conditions viz. The reasonable classification of the offences and the rational relation thereof with the object of the statute, being thus satisfied, the legislation cannot be said be violative of Article 25 of the Constitution...."
' The legislation falls within the limits of permissible and justifiable classification would not be violative of the guarantee of equal protection of law, hence the question of any discrimination does not arise.
9. The adherence to principle of natural justice as recognized by all civilized States is of Supreme Importance when any forum embarks on determining disputes between the parties, and therefore, it is always desirable to afford an opportunity of hearing. The dimensions of this opportunity cannot be laid down with exactitude, it will depend upon the facts and circumstances of each case as to whether an opportunity -of hearing would be essential or otherwise. It may be pointed out that such opportunity is to be afforded where any prejudice is to be caused or any adverse action is initiated, but in a case under consideration the Government has only transferred a case from one Court of competent jurisdiction to the other Court of competent jurisdiction. We may point out that Special Courts are the creatures of the Constitution and established in the interest of expeditious dispensation of justice and keeping in view the deteriorated and alarming law and order situation, hence no deviation from the objectives intended to be achieved can be allowed while exercising our jurisdiction under Article 199 of the Constitution.
10. In so far as the preliminary objection that one of us (Mr. Justice Amirul-Mulk Mengal) being a Member of Supreme Appellate Court may not adjudicate upon the matter is not tenable as no bar whatsoever has been imposed under any law that the matter cannot be heard and this objection if so desired can be raised at appropriate stage and before the Supreme Appellate Court. It would be premature to offer any detailed comments and suffice it to say that in the absence of any legal restriction the matter can be proceeded with and accordingly the objection is overruled.
In the light of what has been stated above, the petition is hereby rejected.