' A case F.I.R. No,363 of 1996, dated 13-10-1996 under section 302/ 324/148/149/109, P.P.C. Was registered at Police Station Civil Lines, Bahawalpur on the complaint of Imran Haider Rizvi for the murder of Muslim Rizvi and for causing of fire-arm injuries to the complainant himself. In the F.I.R., four accused were named whereas the names of other two accused where not mentioned. In the course of police investigation, the petitioner and his co-accused Imran were also involved in the case on the statement of one Ashfaq Hussain son of Fida Hussian, P.W. Before whom the petitioner and his co-accused had allegedly made extra-judicial confession. The police submitted the challan on 11-12-1996 in the Court of learned Sessions Judge, Bahawalpur. The cognizance of the offence, it appears, was not taken by the learned Additional Sessions Judge, Bahawalpur, on account of the abscondence of certain accused.
2. After the enactment of the Anti-Terrorism Act, 1997 (hereinafter called the Act), the file of the case was sent to the learned Presiding Officer of the Special Court at Bahawalpur constituted and notified under section 13 of the said Act. The petitioner made an application before the learned Presiding Officer of the Special Court under section 23 of the Act (ibid) for re-transfer of the case to the learned Sessions Court and in the alternative for the acquittal of the petitioner under section 265-K of the Cr.P.C. The learned Presiding Officer of the Special Court dismissed the application of the petitioner vide his impugned order dated 15 -9-1997 .
3. Learned counsel for the petitioner has argued that there is no provision in the Anti-Terrorism Act, 1997, whereby a case pending before the learned Sessions Court or any other Court could be transferred to the Special Court constituted under the said Act. It was further stated that from the facts and circumstances of the case, the offence under section 109; P.P.C. Was not constituted. He argued that the said provision could not be treated to be a part of the P.P.C. It had been held in the case of Federation of Pakistan through Secretary, Ministry of Law and another v. Gul Hassan Khan PLD 1989 SC 633 to be the repugnant to the injunctions of Qur'an and Sunnah. Reference was also made to the clause (2) of Article 175 of the Constitution in support of his contentions that unless a power of transfer of a criminal case was specifically conferred, the same could not be exercised by recourse to any inherent jurisdiction. Learned counsel also contended that the transfer of the case of the petitioner from the Court of learned Additional Sessions Judge to Special Court was violative of Article 12 of the Constitution of Islamic Republic of Pakistan, 1973 which provided an absolute prohibition and protection against punishment of a person for an act or omission that was not punishable by law or punishment for an offence by a penalty greater than, or of a kind different from, the penalty prescribed by law for that offence at the time the offence was committed.
Learned counsel referred to the provisions of sections 6 and 7 of the aforesaid Act whereby the offence of Terrorist act was created and punishment for the same was also provided.
4. On the other hand, learned Standing Counsel for Pakistan as well as learned Assistant Advocate- General Punjab, stated that the case was that of scheduled offence within the meaning of section 2(e) of the Act, was more than one victim i,e, one deceased and one injured, for trial of which the Special Court constituted under the Act had excessive jurisdiction to try the offence.
5. I have heard the learned counsel for the parties at length. Subsection (e) of section 2 of the Act defines that the "scheduled offence" means an offence specified in the Schedule to this Act and shall include an offence under this Act. Subsection (1) of section 12 of the Act provides that notwithstanding anything contained in the Code or in any other law, a scheduled offence committed in an area in a Province shall be triable only by the Special Court exercising territorial jurisdiction in relation to such area... ...Subsection (3) of section 12 of the Act specifically provides that any prosecution in respect of such offence shall be instituted only in the Special Court established in relation to such area, and, if any prosecution in respect of such offence is pending immediately before such declaration in any other Court, the same shall stand transferred to such Special Court and such Special Court shall proceed with such case from the stage at which it was pending at that time without the necessity of recalling any witnesses. The provisions of the Act leave no doubt that once, prima facie, the commission of a scheduled offence is shown to exist, no other Court except the Special Court under the said Act can try such an offence and that any such case pending in any other Court (underlining is mine) shall stand transferred to the Special Court.
The conclusion is irresistible that by operation of the provisions of the Act, there is automatic transfer of the cases of the scheduled offence from any or every Court to the Special Court.
Therefore, no valid exception can be taken to the transfer of this case.
6. For the purpose of determining whether or not an offence is a scheduled offence, the Act does not envisage a trial within trial in those cases. Such a question is to be determined on the basis of the F.I.R. And the other material produced by prosecution at the time of presentation of challan.
Then it is for the Special Court to decide on the basis of such material whether cognizance is to be taken or not. See the cases of Azhar Hussain v. Government of the Punjab and others 1992 PCr.LJ 2308 (F.B.); Allah Din and 18 others v. The State and another 1994 SCMR 717. No evidence is required to be recorded for initial assumption of jurisdiction or taking of cognizance by the Special Court. In the cases of Yunus Khan v. The State 1990 PCr.LJ 1719 and Yaqoob and 4 others v. The State and another 1993 PCr.LJ 1805, this Court has held that once an offence was declared to be a scheduled offence, the ordinary Courts would cease to have jurisdiction for the trial of such an offence which would be exclusively tried by a Special Court. The term "any other Court" has its particular significance. The word "any" is ordinarily used to enlarge the amplitude of the term to which it is attached excluding all limitations or qualifications. This word may be interpreted as a substitute for all or every as the context may require. See the cases of Manzoor Qadir v. Mst. Amtul Hussain and 2 others PLD 1971 Lah. 537; Pakistan Tanneries Limited v. Hadayatullah Mokal and 5 others PLD 1972 Lah. 880; Allah Ditta v. The State through Secretary, Ministry of Defence Islamabad PLD 1976 Lah.
823; Ch. Zahoor Elahi v. The State PLD 1977 SC 273 at page 309; Inamur Rehman v. Federation of Pakistan and others 1992 SCMR 563 and Government of N.-W.F.P. Through Chief Secretary v.
Muhammad Irshad and 3 others PLD 1995 SC 281.
7. A case relating to scheduled offence stands transferred to a Special Court by operation of the provisions of subsection (3) of section 12 of the Act if pending before any other Court. Even no formal order is required to be made for this purpose. The actual transfer of the file from the Court of learned Additional Sessions Judge is just in the nature of ministerial act which does not affect the jurisdiction of the learned Special Court. In the case of Sh. Masood Ahmad v. Pakistan PLD 1976 SC 195 the question involved was as to whether a formal order of the Court was necessary to terminate the proceedings before it under section 6 of the Service Tribunals Ordinance, 1973 on the commencement of the Ordinance. It was held that the proceedings in a suit before the Civil Court abated ipso facto and no formal order of the Court was necessary to terminate the proceedings nor any declaration by a Civil Court in regard to the suit as having abated was required. Similarly, in case of Ch. Manzoor Elahi v. The State PLD 1975 SC 66 at page 87 it was held that the question of guilt or otherwise of an accused was to be determined on the basis of evidence to be adduced before competent Court and the manner in which an accused was brought before such Court was not material.
' I need not express any opinion as to whether section 109, P.P.C. Is on the statute book or not or whether the offence under section 109 is constituted against the accused. Such an opinion might prejudice the pending case of either side. Since this matter can be decided on other grounds, I need not examine the Constitutional issues in this case. Refer the case of Mst. Kaneez Fatima v.
Wali Muhammad and another PLD 1993 SC 901.
9. Now the last argument of the learned counsel for the petitioner as to the prosecution and of punishment of the petitioner under the provisions of sections 6 and 7 remains to be dealt with.
Needless to say that none of these provisions which are in the nature of creation of an offence and providing a punishment for such an offence have an application to the case in hand. None of these provisions is in the nature of an ex post facto legislation nor any such legislative intent can be spelt out. Both these provisions would apply to the acts of omission or commission falling within their mischief if committed after the said Act came into force and not to such Acts committed prior thereto. The Parliament does not seem to have offended the Constitutional guarantees and protection provided to the citizens and the other persons by Article 12 of the Constitution of Islamic Republic of Pakistan, 1973. The apprehension of the learned counsel for the petitioner in this regard appears to be ill-founded. The offences under the said Act are not the only ones which can be tried by the Special Court but the jurisdiction of the Special Court extends to all other offences mentioned in the Schedule of the Act.
10. For the foregoing reasons, I do not find any merit in this petition which is hereby dismissed. There shall be no order as to costs.