' RAJA MUHAMMAD SABIR, J.--- In this petition, the order of learned Sessions Judge/Special Judge, Suppression of Terrorist Activities (Special Court) Act, 1975, Sheikhupura has been assailed on the ground that learned Sessions Judge/Special Court-I, Sheikhupura was not competent to withdraw the case from the Court of Additional Sessions Judge-I/Special Court-H, to his own Court.
2. Brief facts of the case are that the petitioner and his co-accused were facing the trial in Special Court-III, Suppression of Terrorist Activities, Lahore Division, Lahore. The aforesaid Court ceased to exist and the case was transferred to the learned Sessions Judge/Special Court-I, notified under section 3 of the Suppression of Terrorist Activities (Special Court) Act, 1975. The case was entrusted to Rana Zahid Mehmood, Additional Sessions Judge-I, Sheikhupura on 23-10-1997 who was also notified as Special Court under the aforesaid Act of 1975. It remained pending there till 24-1-1998, when he was promoted as Sessions Judge and posted as Special Judge, Anti-Corruption Gujranwala. The complainant made an application to Sessions Judge/Special Court-I, for the transfer of the said case to any, other Court of competent jurisdiction on the ground of inordinate delay in its disposal. Application of the complainant without notice was accepted by the learned Sessions Judge/Special Court-I, vide impugned order, and case was transferred by him to his own file.
3. Learned counsel for the petitioner contends that the Sessions Judge, Sheikhupura as well as Additional Sessions Judge-I were notified as Special Judges under section 3 of the Suppression of Terrorist Activities (Special Courts) Act, 1975. Both have equal powers for holding of the trial and disposal of the case entrusted to them. The notification only authorized the Special Court-I to entrust the case but once the entrustment has been made, he is not competent to withdraw the same to the file of his own Court or transfer it to anyone else. The impugned order was passed in the absence of petitioner and without notice and as such liable to be set aside.
4. Learned counsel for the respondent, on the other hand, submits that the learned Sessions Judge/Special Court-I was competent to withdraw the case from the Court of Rana Zahid Mehmood, Additional Sessions Judge-I, who had left the charge without substitute to his own Court for speedy disposal. He further submits that section 528, Cr.P.C. Empowers him to withdraw the case from Additional Sessions Judge-I/Special Court-II.
5. We have heard learned counsel for the parties and perused the record.
6. In order to appreciate the legal point raised in this petition, a perusal of the Notification No,SO(SPL.CTS)11-13/95, dated 26th September, 1997, is necessary whereby Sessions Judges and Additional Sessions Judges were empowered to hold trial under the Suppression of Terrorist Activities (Special Courts) Act, 1975. The Notification reads as under:-- "In exercise of the powers conferred by subsection (2) of section 3 of the Suppression of Terrorist Activities (Special Courts) Act, 1975 the Government of the Punjab in the Home Department in consultation with the Honorable Chief Justice of the Lahore High Court is pleased to constitute Special Courts under all the District and Sessions Judges and Additional District and Sessions Judges-I at all the District Headquarters as Presiding Officers, Suppression of Terrorist Activities (Special Courts) Act, 1975 of their respective districts in addition to their own duties.
' The cases pending before the Special Courts mentioned at I above shall stand transferred to the newly created Courts to be presided over by the District and Sessions Judges of each District to which they relate who may transfer any case to the Additional District and Sessions Judge-I."
7. Para. 3 of the Notification provides that the cases pending before the Special Courts shall stand transferred to the newly created Courts to be presided over by the District and Sessions Judge of each District to which they relate who may transfer any case to the Additional District and Sessions Judge-I. This power of transfer has been conferred on the Sessions Judge for entrustment of such cases to Additional Sessions Judge-I. The Sessions Judge herein referred means Special Court-I under Suppression of Terrorist Activities (Special Courts) Act, 1975 and that of the Additional Sessions Judge-I as Special Court-II.
8. Since the case was entrusted to Special Court-II, the Special Court-I was left with no jurisdiction to withdraw it and start the trial himself or send it to any other Court. The powers of Special Court-I and Special Court-II are independent and equal in all respects.
9. Transfer of case from one Special Court to the other is governed by section 4-A of the Suppression of Terrorist Activities (Special Courts) Act, 1975, which reads as under:-- "Where two or more Special Courts have jurisdiction wholly or partly in the same territorial limits, the High Court may, if it considers expedient to do so in the interest of justice or for the convenience of the parties or of the witnesses, transfer any case from one Special Court to another. "
(As substituted for section 4-A by Suppression of Terrorist Activities (Special Courts) (Amendment)
Ordinance No,XXIII of 1997, dated 4th February, 1997).
10. A perusal of aforesaid provisions of law clearly shows that an application for transfer of the case from one Special Court to the other is only competent before the High Court and Special Courts have no such jurisdiction for transfer of the cases from one to the other.
11. Similarly section 7 of subsection (1) of the referred Act provides:-- "A person sentenced by a Special Court shall have a right of appeal to the High Court within whose jurisdiction the sentence has been passed, (1) (and the Provincial Government may direct any person appointed by it for the purpose to present an appeal to the High Court from an order of acquittal passed by a Special Court) but save as aforesaid and notwithstanding the provisions of the Code or any other law for the time being in force or of anything having the force of law by whatsoever authority made or done; no Court shall have authority to revise such sentence, or to transfer any case from a Special Court or to make any order under section 426 or section 491 or section 498 of the Code, or have any jurisdiction of any kind in respect of any proceedings of a Special Court."
12. Similarly section 10 of referred Act lays down that the provisions of this Act shall have effect notwithstanding anything contained in the Code or in any other law for the time being in force.
13. The aforesaid provisions clearly show that application of section 528, Cr.P.C. Is excluded by the Special Act by express enactment of section 10 of the Suppression of Terrorist Activities (Special Courts) Act, 1975. The exercise of powers under section 528, Cr.P.C. In such-like cases by the Special Court-I is misconceived. There is no provision in the Suppression of Terrorist Activities (Special Courts) Act, 1975, authorizing the Special Court-I to withdraw a case entrusted to Special Court-II.
Grievance of any of the parties regarding the trial can be redressed under section 4-A of Suppression of Terrorist Activities (Special Courts) Act, 1975 by the High Court alone. Withdrawal of the case through impugned order from Special Court-II by the Special Court-I to his own file is without jurisdiction. Transfer or promotion of Additional Sessions Judge-I will not create any vacuum because he is notified by designation and not by name. Whosoever is Additional Sessions Judge-I, shall exercise the powers conferred by Notification, dated 26-9-1997.
14. Learned Sessions Judge/Special Court-I presumably proceeded under section 528, Cr.P.C. But without notice to accused case could not be transferred being against the principle of natural, justice as laid down in Haji Ghulam Sarwar v. Muhammad Akhtar and others PLD 1962 Lah.
437. The relevant observation reads as under:-- "In an application under section 528(2) of the Criminal Procedure Code, 1898 as distinct from transfers under section 192(1) of the Code, it is necessary to hear the opposite party before making an order of transfer. Although there is no provision in section 528 of the Code making it imperative to give a notice to the other party before ordering a transfer of a case, yet the principle of natural justice makes it necessary that a notice shall be given to the party and an opportunity afforded to hear him before ordering the transfer."
15. Moreover, this section cannot be invoked in the proceedings under Suppression of Terrorist Activities (Special Courts) Act, 1975. We have noticed in other cases too that learned Sessions Judges are passing the orders in routine in entertaining the applications for transfer of the cases from Special Court-II to Special Court-I. Special Court-I is not competent to transfer the case from Special Court-II to himself or to any other Court. As observed above, the only remedy available to the parties is under section 4-A of the aforesaid Act to approach the High Court for redressed of the grievances Special Court-I has no authority for withdrawal of the case from Special Court-II.
Both are independent and equal in all respect constituted under Notification referred to above.
16. For the reasons stated above, this petition is allowed. Impugned order is set aside. Proceedings pursuance to the impugned order also stand vitiated. Copy of this order shall be sent to the Registrar of this Court for communication to all concerned Special Courts for future guidance.