' Instant Criminal Revision is directed against the order dated 25-1-1999 passed by Sh. Liaqat Ali, learned Additional Sessions Judge, Kasur, whereby he dismissed the application of petitioners for a de novo trial.
2. Briefly stated the facts are that F.I.R. No,75 of 1997, dated 6-2-1997 under sections 302/34; 324; 465 and 109, P.P.C. Was registered at Police Station Saddar, Raiwind, District Kasur against the accused/ petitioners and 3 others. The investigation of the case was initially carried out by the local police and thereafter, by Crimes Branch, Punjab, Lahore as well as Superintendents of Police.
During the investigation Muhammad Siddique and Muhammad Hanif and petitioners were found innocent and they were placed in column No,2 of the challan. Initially the challan was submitted in the Court of Illaqa Magistrate who summoned the accused vide order dated 1-9-1997. Prior to that an application was submitted by the District Attorney that the case be sent to. The Special Court (Anti-Terrorist in), Lahore. Accordingly the case was submitted before the learned Special Judge (Anti-Terrorism), Lahore who entrusted the same to Kit Faheem .Ijaz, Special Judge, (Anti- Terrorism), Court No,2, who took the cognizance and proceeded with the ,trial. During the month of December, 1997 an amendment was made in the Schedule of the Anti-Terrorism Act, 1997 as a result of which the instant case was transferred by the- learned Special Judge (Anti-Terrorism) to the Court of learned Sessions Judge, Kasur who finally entrusted the same to Sheikh Liaqat Ali learned Additional Sessions Judge for disposal. The petitioners submitted an application before the learned Additional Sessions Judge to conduct de novo trial for reasons mentioned there. The said application was dismissed vide order dated 25-1-1999. Hence the instant criminal revision.
3. Arguments have been heard and record perused with the assistance of learned counsel for the parties.
4. Contention of the learned counsel for the petitioners is that after the transfer of case by the learned Special Judge (Anti-Terrorism) to the Court of learned Sessions Judge, it could not be entrusted to the learned Additional Sessions Judge, as the case had not been sent up to the Court of Session under section 190(3), Cr.P.C. He, thus, submits that very entrustment by the learned Sessions Judge to the learned Additional Sessions Judge is unwarranted by law. He further argued that entire evidence was recorded by the learned Special Judge (Anti-Terrorism) in the absence of the learned counsel for the petitioners and their co-accused, so the learned Additional Sessions Judge was not justified in refusing their prayer for holding a de novo trial vide order dated 25-1- 1999.
5. .Conversely it is submitted by the learned Assistant. ,Advocate-General assisted by learned counsel for the complainant that transfer of a case by the Special Court to the Court of Session' is governed by the provisions). Of .Section 23 of the Anti-Terrorism Act, - 1997 which reads as follows:- - S.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.
' That as such the learned Sessions Judge was competent to receive and further entrust the same to the learned Additional Sessions Judge for disposal in accordance with law, that for the purpose of trial of any offence a Special Court has all the powers of a Court of Session as contemplated by section 19(14) a Anti-Terrorism Act, 1997 and even on this score the said Court was competent to transfer the said case, that provisions of Anti, Terrorism Act, 1997 have got an overriding effect as stipulated by section 32 of the said Act. Thus, the learned Special Judge was fully competent to transfer the case to the Court of learned Sessions Judge and the later was also competent to entrust the same to the learned Additional Sessions Judge who has declined the request of de novo trial strictly in accordance with law.
6. The points which require determination in this criminal revision are if Special Court, constituted under the Anti-Terrorism Act, 1997 is competent to transfer a case to the Court of learned Sessions Judge.' Secondly if the learned Sessions Judge is competent to entrust such case to any other learned Additional Sessions Judge for disposal and thirdly if the learned Additional Sessions Judge is competent to proceed further with the trial of said case or is bound to conduct a de novo trial. It is clearly laid down in section 23 of the Anti-Terrorism Act, 1997 (which has been reproduced above) that where a Special Court is of the 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 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. It is, thus, clear that a Special Court is competent to transfer a case to any Court having jurisdiction under the Code to try the said case. Admittedly the instant case is exclusively triable by the Sessions Court, as such it has rightly been transferred to the said Court. The stand of the learned counsel for the petitioner is that Sessions Court cannot take cognizance of any case unless the same is sent up to that Court under section 190(3), Cr.P.C. There is no doubt that a case has to be sent up to the Court of Session under section 190(3), Cr.P.C. But the provisions of section 190(3), Cr.P.C. Do not apply to a case, the transfer of which is being made under section 23 of the Anti-Terrorism Act, 1997. It is fact that a Court constituted under Anti-Terrorism Act, 1997 has the power to receive a case directly and cases are not sent to that Court under section 190(3), Cr.P.C. Thus if 'the Special Court constituted under Anti-Terrorism Act, 1997 has taken cognizance of a case, it is competent to transfer the same to any other Court having jurisdiction under the Code. Similarly Court of Session is competent to transfer such case to any other Court of competent jurisdiction, even if the same has not been sent up to that Court under section 190(3), Cr.P.C. As provisions of section 23 of the Anti Terrorism Act, 1997 had got overriding effect as per section 32 of the said Act. The provisions of section 23 of the Anti-Terrorism Act, 1997 have eclipsed the provisions of section 190(3), Cr.P.C. And thereby conferred jurisdiction upon the Court of Session to take cognizance directly on its transfer from the Special Court. It is also evident from the perusal of section 23 (ibid) that a transferee Court is competent to proceed further as it had taken the cognizance, as such the learned Additional Sessions Judge was competent to decline the request of de novo trial of the petitioners.
7. In the light of facts stated above there is no force in the contentions raised by the learned counsel for the petitioner. Accordingly petition fails and is hereby dismissed.