1. ' WAJIHUDDIN AHMED, J.---On facts, case F.I.R. No,495 of 1996, dated 13-12-1996 of Police Station Nawankot was transferred by the Sessions Judge, Lahore on 13-10-1997 for trial to Anti-Terrorist Court No,1, Lahore. An application dated 29-11-1997 was moved in the latter Court for re-transfer as jurisdiction under Anti-Terrorism Act, 1997, did not arise, inter alia, because the victim was neither a public servant nor did he suffer death while performing official duties. Such application was dismissed, opening the way for a Constitutional petition in the High Court. The High Court declining relief per order dated 9-3-1998 in Writ Petition No,2885 of 1998 has observed as under:-- "We have heard the learned counsel for the petitioner, the learned counsel for the complainant and learned A.A.-G., Punjab. The victim Abdul Majid was admittedly an employee of the statutory Corporation i,e, Pakistan Tele-Communication Company Limited. The employees of Pakistan Tele- Communication Corporation have already been declared to be civil servants. See the case of Pakistan Tele-Communication Corporation and another v. Riaz Ahmad and 6 others (PLD 1996 SC 222). Even otherwise, the duties of such employees are of public nature so as to fall within the provisions of section 21, P.P.C. It is now well-settled that all the civil servants are public servants although the converse may not be so. The victim of murder if a public servant by itself sufficient to attract the provisions of Anti-Terrorism Act, 1997, There seems to be a rational behind this provision.
2. The Legislature thought it necessary to protect the public servants from being subjected to acts of terrorism etc. Irrespective of whether they were on active duty or otherwise at the time of alleged commission of offence against them. We also find that the special provisions of a special law i,e, Anti-Terrorism Act, 1997 containing non obstante clauses override the general provision other laws and are to be construed accordingly. Reliance may be placed on the case of Ghulam Mustafa Jatoi v. Returning Officer (1994 SCM R 1299). In the case of Asmat Naureen v. Additional Sessions Judge, Attock and another (Writ Petition 2103 of. 1993) (RWP) Division Bench of this Court has already taken the same view where the victim was an employee of the Education Department and was not on active duty at the time of occurrence."
3. ' The learned counsel has drawn our attention to the following passage occurring in Mehram Ali's case (PLD 1998 SC 1445):-- "It was urged by Mr. Gilani, learned counsel for some of the petitioners, that a perusal of the amended Schedule indicates that if the victim of a murder case under section 302, P.P.C. Is a member of police, armed forces or civil armed forces or a public servant, the accused of such case is triable under A.T.A. Even if the murder had taken place on account of personal enmity and had nothing to do with the discharge of his official functions/ duties. Whereas, Ch. Muhammad Farooq, learned Attorney-General, has submitted that in order to terrorise the public servants so that they may not discharge their functions/ duties efficiently and effectively, the terrorists started killing public servants, for example, the Commissioner of Sargodha, a Secretary of the Provincial Government in Lahore, Superintendent of Police, Gujranwala, and the Managing Director, K.E.S.C., Karachi, were brutally murdered. According to him, the above acts of terrorism were intended and designed to create panic amongst the public servants. It will suffice to observe that if a Government servant or any other employee of the Government functionaries is murdered because he belongs to the above service and that there was no enmity or plausible reason for commission of the above offence, such a killing is an act of terrorism within the ambit of the Act and can lawfully be included in the Schedule, but if the murder is committed solely on account of personal enmity, such a murder will have no nexus with the above provisions of the Act and will not be triable under the Act. However, this is a matter to be decided by the Special Court as under section 23 of the Act Special Court has been empowered to transfer a case to a regular Court if after taking cognizance of an offence, it is of the opinion that the offence is not a scheduled offence."
4. Perusing the quoted portion, it appears that the jurisdiction to decide whether a particular case falls or does not fall within the purview of his jurisdiction lies also with the Presiding Judge of an Anti-Terrorist Court. Section 23 of the Act is as under:-- "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."
5. ' In the light of the above, we would dismiss this petition but leave the petitioner to re-agitate the issue before the concerned Anti-Terrorist Court. Such can be done at a time convenient, when the question can be decided on the material available on the record. This being done the Special Court would pass appropriate orders uninhibited by any observations of the High Court in the impugned order.
6. ' Dismissed in terms.