' ZAFAR PASHA CHAUDHRY, J.---The order dated 11-6-1998 passed by Ch. Muhamamd Akram, Special Judge Anti Terrorism, Faisalabad whereby he rejected the petitioner's application moved under section 191, Cr.P.C. And as such did not allow him the option of being tried by any other Court, has been assailed through this Criminal Revision.
2. The brief facts relevant to dispose of the present Revision Petition are that according to the petitioner he was summoned to face trial by the learned Special Judge, therefore, he should have granted him the option of trial as envisaged by section 191, Cr.P.C. He further submitted that the word "Magistrate' used in section 191, Cr.P.C. Cannot only be confined to a Court of Magistrate but the same is applicable to every Court which holds trial. Since in the instant case the trial was being conducted by the Special Judge and in case an accused person is summoned to face trial before him, the petitioner was entitled to exercise the option as allowed by this section. In support of his contention he placed reliance on the case titled:-- ' Muhammad Riaz v. The State (1983 SCM R 816) and Abdus Sattar Molla v. The Crown (PLD 1953 FC 145). Revision petition was admitted to regular hearing and notice was issued to the respondents.
3. The learned counsel has reiterated the arguments already advanced by him at the time of admission of the revision petition and prayed that the same be accepted and the petitioner be allowed to have the choice of the Court of trial. The contest has been raised by the learned counsel for the State as well as by the complainant Mst. Kalsoom Bibi who has been impleaded as respondent No,1 . Mr. Hasnat Ahmed Khan, Advocate learned counsel for the respondents has pointed out that true facts were not placed before the Court at the time of hearing the petition in limine. An impression was given as if the petitioner had been summoned to face trial by the learned Judge who passed the impugned order dated 11-6-1998 and as such did not allow the option to the petitioner. Whereas, in fact the petitioner had been summoned to face trial by the learned Special Judge appointed under the Suppression of Terrorist Activities Act, 1975 who was different from the one who passed the impugned order and before whom the trial was pending adjudication. Since it was not disclosed or clarified that the petitioner had been summoned to face trial by a different learned Judge, the petition was admitted and stay was also granted. Quite obviously the rationale behind section 191, Cr.P.C. Is that in case an accused person has been summoned to face trial by a specific Magistrate or Court then he may allow the accused to exercise the choice to be tried by him or to be tried by some other Court of competent jurisdiction.
The provision is meant to repel any impression with the accused person that he was being tried by a Magistrate or Court who has already made up mind against him and summoned him to face the trial by holding that there was a, prima facie, case against him. In the aforesaid authorities cited by the petitioner, it was clarified that this section was not confined only to the Court of Magistrate but applied to every Court which holds the trial. In the present case the Court which summoned the petitioner to face trial is different from one where the application to exercise option was moved. As such provisions of section 191, Cr.P.C. Are not at all applicable.
4. It has further been argued that to exercise the option under section 191, Cr.P.C. The accused should have been summoned under section 190 (1) (c) Cr.P.C. But in the present case the petitioner has not been summoned under that section, therefore, section 191, Cr.P.C. Has no applicability on that score as well. In support of his contention reliance has been placed on case titled: Panu Samal and others v. Emperor (AIR 1940 Patna 111) wherein it has been held that option cannot be exercised if the trial stands transferred to some other Court or some other Magistrate assumed cognizance of the matter and holds trial. Another aspect of the case has also been pointed out, by submitting that if by virtue of enforcement of a Special Law a particular Court or Judge has held the trial within a specified area and of a specified offence and no other Court can hold trial on account of enforcement of special enactment the provisions of section 191, Cr.P.C. Cannot be put into service.
In support of his contention reliance has been placed on case Nil Madhab Patnaik and another v.
The State (AIR 1955 Patna 317), wherein in a similar situation, when under Criminal Amendment Act of 1952 under section 6 a Special Judge was authorised to hold trial within that area under that Act then only that Judge was competent to hold the trial and provisions of section 191, Cr.P.C. Could not be pressed into service. In the present case as well under section 12 of the Anti-Terrorism Act, the Special Judge alone has been authorised to hold the trial of the offence within his limits of jurisdiction. Therefore, the option of choice to be tried by any other Judge or Court cannot be made available.
5. The learned counsel for the petitioner when confronted with this situation adopted another line of arguments that the learned Special Judge before whom the trial was pending did not have the jurisdiction even otherwise considering the facts of instant case. The petitioner cannot be allowed to address arguments on this aspect of the case because earlier he challenged the jurisdiction of the learned Special Judge and Writ Petition No,12023 of 1998 titled as "Abdul Razzaq v. Ch. Muhammad Akram etc." was filed and dismissed by a Division Bench of this Court. We have been informed that against that dismissal the petitioner's leave to appeal has been filed in the Hon'ble Supreme Court which is pending proceedings. Since the matter is sub judice before the Hon'ble Supreme Court and the Division Bench of this Court has already dismissed the writ petition, on order can be passed with regard to assumption of jurisdiction by the learned Special Judge. We have noted the above-referred arguments and have also considered the law cited on the various points. We are, therefore, of the view that the petitioner did not place true facts before the Court and obtained the interim order dated 2-7-1998. The fact that the petitioner was summoned to face trial by learned Special Judge different from the one who is holding trial at the moment, the option as allowed by section 191, Cr.P.C. Is not available to him. The argument that the petitioner has not been summoned to face trial under section 190 (1)(c), Cr.P.C., therefore, section 191, Cr.P.C. Has no application, has also substantive force. The revision petition, as such, is not maintainable. The fact that the learned Special Judge has exclusive jurisdiction within the area prescribed to hold the trial, therefore, on that score as well the provisions of section 191, Cr.P.C. Cannot be made applicable. The Special Law invariably overrides the provisions of General Law. Since under the Special Law a Special Court has been constituted to hold trial for the specific offences within specified area, the possibility of affording choice of trial Court is not available.
7. The upshot of above discussion is that the Criminal Revision has no force, the same is, therefore, dismissed. The interim order staying proceedings automatically stands vacated.
Revision .