MAMOON KAZI, C J.--In this bunch of the petitions, notifications ordering the petitionerstrial inside Central Prison, Karachi, have been challenged. The said notifications were issued under subsection
(3) of section 3 of Suppression of Terrorist Activities (Special Courts) Act, 1975. Contention of Rana Shamim, learned counsel for the petitioners, is that the said notifications have been issued without lawful authority, as they deprive the petitioners of a right to open trial, as envisaged by section 352, Cr.P.C.
It may be pointed out that the petitioners, who according to them, are active members of M.Q.M., a political Tahrik, are being tried for various offences by different Special Courts in Karachi.
Section 3(3) of the Suppression of Terrorist Activities (Special Courts) Act, provides as under: "3(3). A Special Court shall sit at such place as the Government constituting it may, by notification in the official Gazette, specify in this behalf."
Such notification, issued in the case of petitioner Muhammad Ashfaq Chief, which is similar to other notifications issued in the case of other petitioners, is as follows: "NOTIFICATION No,PRS/8 18/94.--In exercise of powers conferred under subsection (3) of section 3 of Suppression of Terrorist Activities (Special Courts) Act, 1975 the Government of Sindh are pleased to notify the sitting of Judge mentioned below for the purpose of conducting the trial of case/cases against the undertrial prisoner Muhammad Ashfaq Chief son of Muhammad Saleem, inside Central Prison, Karachi.
S.No. FIR No. P.S. Under section Name of Court
1. 107/92 Landhi 148/364/452/115/34/120-B, 302, P.P.C.Spl. Court III (STA) Kyc.
2. 109/92 Landhi 148/364/436/336/115/34/302, P.P.C. -do-
3. 169/92 Landhi 25 Telegraph -do-
4. 96/88 Nazimabad 307, P.P.C. -do-
5. 108/92 Landhi 146/148/362/120-B -do-
6. 160/92 Landhi 147/436/506-B,14 EHO -do-
7. 167/92 Landhi 147/148/336/17(3) -do-
8. 170/92 Landhi 395/397/109/336/485 -do-
9. 314/92 Gul Bahar 13/D A.O. (STA) Kyc. Spl. Court II A.R. Khanal, Home Secretary."
Mr. K.M. Nadeem, learned Additonal Advocate-General while resisting the said petitions, has referred to section 10 of the said Act, which provides as under: "10. Act to override other laws.--The provisions of this Act shall have effect notwithstanding anything contained in the Code or in any other law for time being in force."
So far as the provisions of section 3(3) are concerned, on first impression, they authorise the Government to specify the place where a Special Court shall sit. Therefore, such place may be an open place or a place within the jail premises. Mr. Rana Shamim, learned counsel for the petitioners, has, however, invited our attention to the case of Asif Ali Zardari v. Special Judge (Offences in Banks) PLD 1992 Kar.
437. In this case, while interpreting the word 'placeoccurring in section 3(3) of the said Act, it was held by a Division Bench of this Court that the said word should not be given a restricted meaning and, therefore, it should mean to include an area or a locality. It was further held that the said provisions empower the Federal Government to fix a place of sitting of the Special Court which could, be a place of sitting of such Court for all cases falling within its jurisdiction. It was further held that trial in open Court was almost an inevitable consequence of our judicial system and a trial, therefore, must be held in an open Court unless it is conducive to justice to hold a trial in jail.
Reference was also made by the learned Judges deciding this case to section 352 of the Code of Criminal Procedure which provides that a Court should be an open Court to which the public generally may have an access. Reference in this case was also made to the case of Mairaj Muhammad Khan v. The State PLD 1978 Kar.
308.
Reference to the said case further indicates that it is not so much as a matter of law but as a matter of propriety that trial of an accused must be held in an open Court. However, departure may be made from this rule if the circumstances of a particular case so demand. There can hardly be any cavil with the preposition that justice should not only be done, but it should be manifestly seen to have been done. Therefore, ordinarily an accused can demand as of right to have an open trial where public can have access unless, there are compelling circumstances to depart from this rule. The learned Additional Advocate-General, has strongly opposed the petitions in view of the deteriorating law and order conditons in the city. The two cases upon which the learned counsel for the petitioners has mainly relied, according to him, were those of politicians whose open trial could hardly have resulted in such a situation.
We would like to point out that, no doubt, according to section 352 of the Code of Criminal Procedure, trial of an accused is to be held in an open Court. An exception to the rule can be found only in the form of the proviso to the said section, according to which the Presiding Officer of the Court may order trial of a case in camera. But the petitioners are to be tried by a Special Court constituted under Suppression of Terrorist Activities (Special Courts) Act, and they are, therefore, to be governed by the provisions of the said Act. Such provisions by virtue of section 10 thereof, must prevail over the general provisions of the Criminal Procedure Code. By virtue of section 3(3) of the said Act, power has been vested in the Government to specify a place where a Special Court shall hold its sittings. No restrictions have been placed on the power of the Government while specifying a place of trial for the accused. Consequently. Under exceptional circumstances, a place for trial specified by the Government under section 3(3) of the Act can even be within a prison depending upon the circumstances of each case. The word "place" in section 3(3) can also include its plural.
Although, we are in respectful agreement with the view earlier taken by the Division Bench of this Court in the case of Asif Ali Zardari v. Special Court (Offences in Banks), but the rule enunciated by the Division Bench is not an absolute rule and departure can be made therefrom under exceptional circumstances. Although, no reasons have been assigned in the notifications impugned in these petitions, but we cannot be oblivious of the fact that the notifications were issued at time when law and order situation in the city of Karachi was at its worst and almost every day several incidents of lawlessness were reported in the city. We are, therefore, of a considered view that, the trial of the accused in jail can be ordered by the Government under the provisions of section 3(3) of the Suppression of Terrorist Activities (Special Courts) Act under exceptional circumstances.
In the result, the petitions are dismissed. However, as has been conceded by the learned Additional Advocate-General some of the relatives and friends of the petitioners can be permitted to attend their trial inside jail which, we have no doubt, will be considered by the Government.