1. ' ABDUL GHANI SHAIKH, J.--1 to 3. Learned counsel appearing for the petitioners, has submitted that on 13-9-1997 one Hakim Ali lodged the report at Police Station, Mahmood Charm., District Khairpur for offences under section 10(3) of Zina Hudood and sections 457, 337-H(ii), P.P.C. Stating therein that Mehaser, Liaquat, Asghar, Ghulam Rasool, Bakht Ali, Muhammad Khan and Ali Hassan entered into the house of complainant and accused Bakht Ali was found committing rape with Mst. Irshad and accused Ali Hassan was committing rape with Mst Marvi. Both these ladies were crying and on their cries and the cries of. Ghulam Shabbir, complainant and others were attracted there and they also saw the accused persons committing rape with both the ladies, but the accused ran away.
2. ' Police after registration of the case and usual investigation, challaned the accused in the Court of Special Judge for Anti-Terrorism, Sukkur and Larkana Division at Sukkur.
3. ' Learned counsel appearing for the petitioner has submitted that the parties are on inimical terms and such cases are pending between the parties and on account of the dispute, they have been implicated falsely and the case is false and fabricated, the medical evidence does not support the case of the prosecution as according to the medical certificate, no rape was committed with the ladies. Learned counsel for the petitioners after challan of the case, submitted application before the concerned Court for return of the case to the ordinary Court, as no scheduled offence has been proved against the accused. The trial Court rejected the application and present petition is filed whereby the said order has been impugned and the petitioners have prayed following relief:-- "(A) This Honourable Court may be pleased to declare that no scheduled offence of Anti-Terrorism Act of 1997 appears to have been committed and the proceedings before the Special Judge Anti- Terrorism, Sukkur against the petitioners mentioned above, are coram non judice and that are without lawful authority and abuse of the powers.'
(B) That this Honourable Court may be pleased to declare that Anti-Terrorism Act of 1997 is violative of the provisions and Articles of the Constitution Of Islamic Republic of Pakistan.
(C) That this Honourable Court may be pleased to declare that the detention of the above petitioners under the orders of Special Judge Anti-Terrorism is illegal and without lawful authority.
(D) That this Honourable Court may be pleased to direct that criminal case i,e, Special Case No,2 of 1997 in respect of Crime No,6 of 1997 of Police Station Mahmood Channo District Khairpur under section 10(3), Hudood Ordinance, sections 452 and 337-H(ii), P.P.C. Be transferred from the above Court to any other ordinary Court.
(E) To restrain the Special Judge Anti-Terrorism, Sukkur, from proceedings with the case as mentioned above.
(F) Any other relief that the Court deems fit."
4. ' Learned counsel for the petitioners at the very outset, does not press (b) clause of his prayer and submits that he only presses for the transfer of the case from the Court of Special Judge Anti- Terrorism and he has repeated the same ground taken by him before the lower Court.
5. ' Learned Additional Advocate-General, Sindh appearing for the State and learned counsel appearing for the respondent No,4 have vehemently opposed to grant of prayer and have submitted that A.T.A. Court has the jurisdiction in view of clear allegation made in the F.I.R. And so they have further submitted that the victim ladies namely Mst. Irshad and Mst. Marvi have fully implicated the accused persons in their 161 and 164, Cr.P.C. Statements. The 164, Cr.P.C. Statements of the ladies, are said to have been recorded before the Judicial Magistrate in which the present applicants are implicated and the learned Additional Advocate-General further submitted that it is premature to say that no scheduled offence has been committed.
6. ' Before discussing the merits of the case, we are of the view that the Constitutional petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, is not maintainable as the learned counsel appearing for the petitioners on our question, has not been able to satisfy that how this Constitutional petition will be maintainable.
7. We feel that in the present circumstances this Constitutional petition appears to be not maintainable as the petitioners could challenge the order under section 561-A, Cr.P.C. As it is only section in the Cr.P.C. Under which the High Court has the inherent powers to invoke the powers and wherever it finds the case of hardship or abuse of the process of the Court or law or the justice demands the interference of the Court. The petitioners, therefore, could, if permissible under the law, challenge the order by way of filing application under section 561-A, Cr.P.C. And not under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973.
8. ' Looking to the circumstances of the case, we are inclined to go into the merits of the case in order to consider the propriety or otherwise of the order passed by Special Judge A.T.A. Court.
9. ' We have heard the arguments of the learned counsel appearing for the parties and have gone through the F.I.R. 164, Cr.P.C. Statements and medical certificates.
10. ' The allegation of committing rape with the two ladies is clearly alleged in the F.I.R. And both the ladies namely Mst. Irshad and Mst. Marvi have stated in their 164, Cr.P.C. Statements that two accused have committed the rape with them. Mst. Irshad has said that accused Mahessar and Ghulam Rasool have committed rape with her and Mst. Marvi has stated that accused Asghar and Liaquat have committed rape with her.
11. It is no doubt that the medical certificate does not support the version of the complainant party, but at this stage we are not inclined to give any finding as to whether the rape has been committed or not because at preliminary stage it cannot be decided as it can only be done by way of leading evidence and therefore the learned counsel appearing for the State and complainant, have rightly said that it is a premature stage to form any opinion. So, for , the jurisdiction of the S.T.A. Court is concerned, the offences fall under section 2(c) of the Anti-Terrorism Act, are triable by that Court and the offences shown in the Schedule of the said Act includes subsection (4) of section 10 of the Offences of Zina (Enforcement of Hudood) Ordinance and also any attempt or conspiracy to commit or any abetment of any of the said offences.
12. ' So for the powers to transfer of the case to ordinary Court, are concerned, the same is governed by the provision of section 23 of the said Act, which reads as under:-- "Section 23. Power to transfer cases to regular Courts.--Where, after taking cognizance of an offence, a Special Court is of opinion that the offence is not a scheduled offence, it shall, notwithstanding that it has no jurisdiction to try such offence, transfer the case for trial of such offence to any Court having jurisdiction under the Code, and the Court to which the case is transferred may proceed with the trial of the offence as if it had taken cognizance of the offence."
13. ' There is also section 28 in the said Act, which also deals, with the transfer of the cases, section 28 of the said Act reads as under:-- "Sectithi 28. Transfer of cases. --(1) Notwithstanding anything contained in this Act, an Appellate Tribunal may, if it considers it expedient so to do in the interest on justice, or where the convenience or safety of the witnesses or the safety of the accused so requires, transfer any case from one Special Court to another Special Court within or outside the area.
(2) A Special Court to which a case is transferred under subsection (1) shall proceed with the case from the stage at which it was pending immediately before such transfer and it shall not be bound to recall and re-hear any witness who has given evidence and may act on the evidence already recorded."
14. By plain reading of the above said two sections we are of the firmed view that it is only the Trial Court which on forming the opinion that no scheduled offence appears to have been committed can transfer the case to regular Courts under section 23 of the said Act while same jurisdiction to transfer of case to regular Courts lies with the Appellate Tribunal. In view of the above circumstances, we find that there exists no such circumstances as alleged by the petitioners in the present case. We are neither sitting as Appellate Tribunal nor we find any substance in this petition to convert it under section 561-A, Cr.P.C. And order for the transfer of the case to ordinary Courts.
15. ' Under these circumstances, we are of the considered view that the petition merits no consideration and the same is accordingly dismissed in limine. These are the reasons of our short order passed on 17-3-1998. However, before parting with the order, the petitioners may repeat the application before the trial Court when some evidence comes on record to warrant the transfer of the case to the ordinary Court.