This application has been filed under section 526, Cr.P.C. For transfer of case titled Zarak Khan v.
Haji Shafique and others from the Court of Sessions Judge, Quetta to the Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975 (hereinafter referred to as Act of 1975).
2. Brief facts arising out of the application are that on 10th of February, 1994 a case was registered by Ziarat Levies that accused had ambushed a convoy which was coming from Ismail Shahir and was proceeding to Fishin via Ziarat. The incident took place at Sarri where indiscriminate firing was made by klashnikov which resulted in death of four persons and one Dr. Shafique was also injured.
Muhammad Shafique was arrested from the spot. By the orders of the Government of Pakistan, Ministry of Law, Justice and Parliamentary Affairs (Law and Justice Division), Islamabad, this case was transferred for trial to the Special Court for Speedy Trials, vide Notification, of April, statements of 1994 was promulgated whereby Special Courts for Speedy Trials Act of 1992 was repealed. In section 2(d) of the said Ordinance all the cases pending before the Special Courts for' Speedy Trials at the time of repeal were directed to be transferred to the respective Courts of Sessions of the area where cases were registered against the accused persons.
3. Consequent thereupon the instant case was also transferred to Sessions Judge, Quetta because area of Sarri falls within the territorial jurisdiction of Sessions Judge, Quetta.
4. The applicant moved an application before the learned Sessions Judge, Quetta for transfer of the case to Special Judge for Suppression of Terrorist Activities, Baluchistan, Quetta inter alia on the ground that it is the Special Court, Suppression of Terrorist Activities which has got exclusive made a reference to Registrar for placing the case before the Honourable Chief Justice for such orders.
However, the Registrar vide letter dated 31 of October, 1994 intimated the learned Sessions Judge that the case falls within his jurisdiction, hence the same cannot be transferred to the Special Court ( Suppression ofTerrorist Activities, Baluchistan, Quetta).
5. In such circumstances the petitioner has come before this Court for seeking transfer of the case from the Court of Sessions Judge, Quetta to that of Special Court for Suppression of Terrorist Activities, Baluchistan, Quetta.
6. Heard Syed Ayaz Zahoor, Advocate for applicant, learned Advocate---General, Baluchistan for State and Mr. SA M. Quadri for private respondents.
7. Mr. Ayaz Zahoor firstly contended that as per section 2(2)(d) and (e) of Ordinance LII of 1994 the case has been transferred to Court of Sessions for proceedings in accordance with provisions of Criminal Procedure Code, 1898. Since klashnikov has been used in the commission of the offence, therefore, no other Court but the Special Court, Suppression of Terrorist Activities leas got the exclusive jurisdiction, hence the case can only be tried by such Court and by this regard learned counsel argued that section 29, Cr.P.C. Of Act of 1975 section 302/307, P.P.C. Were excluded from Pakistan Penal Code and included in the Schedule, therefore, it is only the Court of Special Judge, Suppression of Terrorist Activities which shall be competent to try the case. Similarly by Act of 1987 as reported in PLD 1988 Central Statute page 6 these provisions were excluded from P.P.C. And after this exclusion it is only the Court of Special Judge, Suppression of Terrorist Activities which has got jurisdiction. Reliance has been placed on 1994 SCM R 717.
8. Learned Advocate-General, Baluchistan, however, challenged the maintainability of the petition on the technical ground that such an application does not lie because the Sessions Judge, Quetta has passed an order which has not been challenged. He further contended that it is not a case of transfer simpliciter from one Court to another Court but it involves complicated question of law and jurisdiction, therefore, the petitioner should have filed proper proceedings challenging the order of Sessions Judge. It was next contended that grounds urged in this application do not attract any of the provisions of section 526, Cr.P.C., therefore, the application is misconceived and is liable to be dismissed. While relying on case reported in 1995 PCr.LJ 61, it was argued by learned Advocate-General that it is only the Special Court for Suppression of Terrorist Activities, Baluchistan who has exclusive jurisdiction. Learned Advocate-General while concluding, argued that selection of forum by choice is not warranted by law.
9. Mr. SA.M. Quadri appearing for private respondents, however, opposed the application, contending that the matter has been transferred not through an ordinary process but by an Ordinance namely Ordinance LII of 1994 to the Court of Sessions for trial. Two-fold submissions were made in this regard by the learned counsel firstly that section 2(2), clause (d) of the Ordinance provides that all cases pending before the Special Courts at the time of such repeal shall stand transferred to the respective Courts of Sessions of the area where the cases were registered against the accused. Then he invited my attention to section 2(2)(e) of the Ordinance which provides that the Court of Session shall on receipt of any case from Special Court under clause (c) try it in accordance with the provisions of the Criminal Procedure Code, 1898. He, therefore, argued that this transfer has been made by a Special Law which has come later to the Act of 1975, therefore, it shall prevail. It was further argued that any amendments made in Act of 1975 shall have no bearing or relevancy to Ordinance LII of 1994. Learned counsel also challenged the maintainability of application under section 526, Cr.p.C. On the ground that, the High Court is competent only to transfer a case from the Court which was subordinate to it.
10. I have given my anxious consideration to the arguments so advanced. It may be noted in the first instance that three enactments have to be taken into consideration while dispose of this application which are as follows:-
(1) Suppression of Terroris Activities (Special Courts) Act of 1975.st
(2) Special Court for Speedy Trials Act, 1992.
(3) Ordinance LII of 1994 which repealed Special Courts for Speedy Trials Act, 1992.
11. It is an admitted position that when the matter was withdrawn and referred by the Justice Division, Government of Pakistan for trial by the Special Court for Speedy Trials no objection was raised by the present petitioner for such trial. It is evident from the arguments that the learned Special Court for Speedy Trials proceeded with the matter, recorded evidence when the said law (Special Courts for Speedy Trials Act, 1992) was repealed by Ordinance LII of 1994. Apart from repeals and savings this Ordinance provided that the Court of Session shall on receipt of any case from a Special Court under clause (c) try it in accordance with Criminal Procedure Code.
12. This transfer has been made through an Ordinance which is like an Act of Majlis-e-Shoora according to Article 260(2) of the Constitution of Islamic Republic of Pakistan, 1973. This Ordinance (LII of 1994) was a special law which repealed another special law namely Special Court for Speedy Trials Act, and also taking care of cases pending before such Courts.
13. According to Syed Ayaz Zahoor, Act of 1975 is a special law hence it has got overriding effect and excludes all other Courts by depriving them of their jurisdiction to try offences mentioned in the Schedule including an offence under section 302/307, P.P.C. Where inter alia klashnikov has been used. Reliance has been place on 1991 SCMR 717. I have gone through the said judgment where facts were quite distinguishable as well as legal proposition is not apt to this case because case challan was submitted before the Sessions Court who marked it to Additional Sessions Judge, Bahawalpur. An application was made for transfer of the case to the Special Court on the ground that klashnikov/automatic assault rifle had been used, hence the case was exclusively triable by Special Court under Act of 1975. But the proposition of law in the instant case is totally different.
Here the case was withdrawn from the Court of Special Judge under Suppression of Terrorist Activities Act by the Federal Government and transferred to Special Court for Speedy Trials. There was no challenge to that transfer by the present petitioner. The Special Judgeunder Speedy Trials Act, proceeded with the matter by recording evidence. Thereafter the Federal Government through Ordinance LII of 1994 repealed 'A the Special Courts for Speedy Trials Act. Not only that but the President was pleased to further order that all pending cases shall stand transferred to the Court of Session for trial. As such in pursuance of the said Ordinance the instant case was transferred to the Court of Sessions Judge, Quetta. The present petitioner did not challenge the virus of the Ordinance or transfer of the case from the Special Court for Speed Trials to the Court of Session. However, an application was moved before t e Sessions Court for transfer of the case on the ground that it has no jurisdiction to try the case. Syed Ayaz Zahoor contended that since by virtue of section 4 of Act of 1975 the jurisdiction of other Courts has been excluded, therefore, the case shall have to be tried by the Special Court Supersession of Terrorist Activities, Baluchistan alone.
14. I do not subscribe to this view because out of the three special laws as mentioned in the preceding paras, Ordinance LII of 1994 which repealed Special Courts for Speedy Trials Act is a special law promulgated later in time. This law being later in time and special in nature shall have to hold the field in respect of cases which were pending before Special Courts till such time as the Act was repealed.
15. Secondly the legislature is presumed to be aware of the existing laws and its overriding nature.
But despite that the President was pleased to provide in the Ordinance LII of 1994 that cases pending in the Special Court for Speedy Trials shall have to be referred to Sessions Court in whose area the offence was registered. This provision has been deliberately and intentionally inserted in the Ordinance because otherwise it could be said that the cases shall stand transferred to the Courts have jurisdiction or to the Courts from where such cases were transferred to the Special Courts for Speedy Trials.
16. Thirdly that if at all section 4 of Act of 1975 had all pervading and overriding effect then cases could not have been referred to Special Courts for Speedy Trials. But these cases were transferred meaning thereby that the second law (Special Courts for Speedy Trials Act) over-rided the provisions of Suppression of Terrorist Activities (Special Courts) Act, 1975, because it was special in nature and later in time. On the same analogy Ordinance LII of 1994 was more special in nature because it not only repealed the Special Courts for Speedy Trials Act but it also expressly provided that cases pending before the Speedy Courts shall stand transferred to Courts of Session having territorial jurisdiction for trial. It was also later in time.
17. Besides an argument was advanced that even if the transfer is held to be legal the Courts are competent to determine the question of their jurisdiction. This principle does not apply to cases which are transferred to a Court of competent jurisdiction either by a superior Court or through special legislation. As for instance, if a High Court in exercise of its powers under section 526, Cr.P.C.
Transfers the case from the Court of a particular Sessions Judge to a Court of another Sessions Judge or Additional Sessions Judge, the transferee Court shall not sit over and decide whether it has jurisdiction territorial or otherwise.
18. Applying this principle on the facts of present case it is observed that the transfer of cases from Special Court for Speedy Trials was made through legislation to Court of Sessions Judge. Learned Sessions Judge, Quetta, therefore, was not right in law to state that it has no jurisdiction. In fact the learned Sessions Judge kept in view only one law while coming to the aforementioned conclusion but ignored the second law on the subject i.e. Ordinance LII of 1994. Thus, it is settled that cases which were transferred through legislation by Ordinance LII of 1994 to respective Courts of Sessions as mentioned in the Ordinance shall be tried by such Courts and provisions of Suppression of Terrorist Activities in respect of such cases shall not excluded jurisdiction of Sessions Judge.
It was lastly contended by Syed Ayaz Zahoor, Advocate for the applicant that question of.
Jurisdiction is also included as a part of trial. I am afraid I cannot subscribe to this view for the reason that the word "trial" is a judicial phenomena which means to examine, investigate and finally determine the points which are to be finally decided. In Black's Law Dictionary the word "try" means to examine judicially, to examine and investigate a controversy by the legal method called "trial", for the purpose of determining the issues it involves. Thus, trial means to finally decide on merits after taking of evidence by adopting prevalent legal procedure.
From the above discussion I have come to the conclusion that instant case was validly transferred through legislation and thus the same shall have to be tried by the Court of Session Quetta.
Resultantly application under section 526, Cr.P.C. Is not accepted and the same is dismissed.