' Instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is directed for the quashment of order, dated 18-3-1998 passed by Special Judge, Anti-Terrorism Court, D.G. Khan Division, D.G. Khan (respondent No,2) being illegal, void ab initio, and without lawful authority.
2. Briefly stated the facts are that Mst. Razo Mai instituted a complaint in the Court of Judge, Special Court constituted under Anti-Terrorism Act, 1997 (respondent No,2) under section 16/10(4), Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 read with section 109/165, P.P.C. Asserting that she was married 12/13 years ago with Mewa Khan, that Mst. Waziran accused/petitioner No,3 had been on visiting terms with her and had been compelling her to develop illicit relations with accused Wazir Muhammad, that to implement her said evil design, she (Mst. Waziran) visited her house, stayed there for the night and during night time took her out on the pretext of urinating and consequently, succeeded in abducting her with the active collaboration of accused, Rashid, Majeed, Khan Muhammad, Aziz and Muhammad Ramzan, that above named accused had been subjecting her to gang rape, that her husband reported the matter with local police who registered case vide F.I.R. No,208 of 1996 older section 10/16, Offence of Zina (Enforcement of Hudood)
Ordinance VII of 1979 on 9-8-1996. Being dissatisfied with the .Police investigation, she filed a direct complaint for proceeding against the accused mentioned in her complaint. Upon this respondent No,2 recorded her statement and vide order, dated 18-3-1998 summoned the accused/petitioners to face trial. Hence the instant writ petition.
3. Arguments have been heard and record perused.
4. Learned counsel for the petitioner has challenged the jurisdiction of respondent No, 2 to entertain the complaint on 10-11-1997 regarding an incident which had taken place one year and three months ago on the ground that said Court had no jurisdiction to entertain the same. His contention is that Anti-Terrorism Act, 1997 (Act No,27 of 1997) was passed by the Federal Government on 20-8- 1997 and was made applicable to the Province of Punjab through a Gazette Notification No,SR0- 662(1)/97, dated 21-8-1997 which reads as follows:- "In exercise of powers conferred by section 3 of the Anti-Terrorism Act, 1997 (Act XXVII of 1997) the Federal Government is pleased to declare that it is expedient for purpose of prevention and punishment of the commission of terrorist acts and scheduled offences to have resort to the provisions of the said Act for the whole of the Province of Punjab."
' That as the Anti-Terrorism Act, 1997 was promulgated on 20-8-1997 and was made applicable to the Province of Punjab on 21-81997, so the Court constituted thereunder could take cognizance of an offence committed after its promulgation, that the jurisdiction of such Court was further curtailed to incidents/offences committed after 13-12-1997 as is evident from SRO-1237(1)/97, dated 13-12-1997, that instant incident alleged to have been committed on 6/7-8-1996, as such the Court (respondent No,2) had no jurisdiction to entertain the complaint and pass order, dated 18-3-1998.
5. Conversely the stand of the learned Additional Advocate-General is that if an offence falls within the definition of section 6 of Anti-Terrorism Act, 1997, the same is triable by the Special Court, by virtue of provisions of section 38 irrespective of date of its occurrence. He candidly admitted that offence in the instant case does not fall within the definition contemplated by section 6 of the Anti- Terrorism Act, 1997. However, the stand of learned counsel It the complainant is that as complaint was filed on 10-11-1997 and the Anti-Terrorism Act, 1997 was promulgated on 20-8-1997 and was made applicable to the Province of Punjab on 21-8-1997 so the respondent No,2 had the jurisdiction to entertain the complaint. He, thus, submitted that order, dated 18-3-1998 has been passed in accordance with law.
6. Along with this writ petition Criminal Miscellaneous No,98/T of 1998 has also been filed by Mst.
Razo Mai for the transfer of case pending in the Court of Ch. Ghulam Mustafa Shahzad, learned Additional Sessions Judge, Kot Addu, Camp at Muzaffargarh, to the Court of Judge, Anti-Terrorism, D.G. Khan.
7. Her contention is that as the complaint arising out of F.I.R. No,208 of 1996 has been entertained by the Judge, Anti-Terrorism Court, D.G. Khan so relying upon Noor Elahi's case PLD 1966 SC 708 and Aziz-ur-Rehman v. The State PLD 1987 Lah. 245 the trial is to start in the complaint case in the first instance as such the said case be transferred to the Court constituted under Anti-Terrorism Act, 1997. This contention has also been controverted and repudiated by the other side on the basis of contentions raised in the writ petition.
8. As both, instant writ petition and Criminal Miscellane No,98/T of 1998 pertain to the same subject-matter so these are being disposed of by this single order.
9. Admittedly regarding occurrence having taken place on 6/7-8-1996 a case vide F.I.R. No,208 of 1996, dated '9-8-1996 has been registered at Police Station Qureshi District Muzaffargarh. The case regarding that F.I.R. Is pending in the Court of Ch. Ghulam Mustafa Shahzad, learned Additional Sessions Judge, Kot Addu, Camp at Muzafargarh. The complaint filed by Mst. Raw and pending in the Court of respondent No,2 relates to the same occurrence. The. Anti-Terrorism Act (Act No, XXVII of 1997) was promulgated by the Federal Government on 20-8-1997 and was made applicable to the Province of. Punjab through Gazette Notification, dated 21-8-1997 as referred above. It is also fact that amendment in the schedule to the Anti-Terrorism Act, 1997 was introduced vide SRO- 1237(1)/97, dated 13-12-1997. It is through this amendment of the schedule that an offence under subsection (4) of section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 (Ordinance VI of 1979) was brought within the purview of this Act provided it has been committed after the enforcement of this Act. It is, thus, clear that an offence under section 10(4) of the Offence of Zina will fail within the ambit of jurisdiction of Court constituted under Anti-Terrorism Act, 1997 if it has been committed after 13-12-1997. Admittedly the occurrence in question took place during the night 6/7-8-1996. This, by no stretch of imagination the Court constituted under Anti-Terrorism Act, 1997. Promulgated on 20-8-1997 and made applicable to the Province of Punjab on 21-8-1997 could have jurisdiction in respect of an occurrence which had taken place prior to its existence. Thus, the order, dated 18-3-1998 passed by respondent No,2 (Judge, Anti-Terrorism Court, D.G. Khan) is not sustainable in the eyes of law. Consequently, writ petition is accepted and the order, dated 18-3- 1998 summoning the present petitioners and respondents Nos.l to 7 (in Criminal Miscellaneous No,98/T of 1998) is hereby quashed.
10. Since the complaint stands quashed so the question of transferring the case pertaining to F.I.R.
No,208 of 1996 pending in the Court learned Additional Sessions Judge, Kot Addu Camp at Muzaffargarh does not arise and consequently, Criminal Miscellaneous No,98-T of 1998 fails and is hereby dismissed.