TASSADUQ HUSSAIN JILANI, J.---Petitioners are facing trial in a case registered vide F.I.R. No. 66 of 1990 dated 21-5-1990 under sections 302/307/148/149/109, P.P.C. Police Station Vanike Tarar, District Hafizabad wherein it is alleged that the petitioners armed with deadly weapons like Kalashikov caused the murders of Walayat and Qasim Dad and injured the P.Ws. Through this Constitutional petition they have challenged the entrustment of this case to the learned Special Court constituted under the Anti-Terrorism Act, 1997 and the order passed by the learned transferee Court dated 12- 11-1997 whereby petitioner's application was dismissed.
2. The facts giving rise to the filing of this petition, as given in it, are that the challan in the case was initially submitted before the learned Sessions Judge Gujranwala in the year 1991. However, on a petition moved by the complainant the same was sent to the Special Court constituted under the Speedy Trial Courts Act, 1992. The transfer of the case to the Speedy Court was challenged by the petitioners through Writ Petition No.4682 of 1992 and this Court directed the learned trial Court to proceed with the recording of evidence but not to pass any final judgment. The learned trial Court recorded almost the entire prosecution evidence except the statements of the two Investigating Officers. The Speedy Courts were abolished by the operation of law and the case was sent to the learned Sessions, Judge Hafizabad. On an objection from the District Attorney, the learned Sessions Judge sent the case to the Special Court constituted under the Suppression of Terrorist Activates (Special Courts) Act, 1975 vide order dated 26-2-1995. The said Court recorded statements of the two Investigating Officers and the petitioners---accused were also examined under section 342, Cr.P.C. The order of transfer dated 26-2-1995 was, however; challenged through Criminal Miscellaneous No. 180-T of 1995 which was allowed vide judgment dated 2-7-1995 (PLD 1995 Lahore 602) and it was directed that the case shall be deemed to be pending before the learned Sessions Judge Hafizabad who shall try and decide the same in accordance with law. Pursuant to the said order of this Court, the learned Sessions Judge proceeded with the trial and vide order dated 28-1- 1996 directed de novo trial on the ground that he was legally bound to maintain double record (in Urdu as well) in the murder cases and summoned the prosecution evidence. This order was challenged in Criminal Revision No.73 of 1996 before this Court by the complainant which was dismissed and the learned trial Court was directed to conclude the trial by 30th April, 1997.
3. After the establishment of the Special Courts under the Anti---Terrorism Act, 1997 the District Attorney moved the learned Additional Sessions Judge seized of the case to transfer it to the Special Court which prayer was allowed and vide order dated 1-10-1997 the case was transferred to the Special Court. Petitioners moved an application to the learned Special Judge which was dismissed vide order dated 12-11-1997 which has been impugned herein.
4. Learned counsel for the petitioner has made following submissions in support of this petition:-- (i)that the Anti-Terrorism Act, 1997 is unjust, harsh and violative of the Constitution of Islamic Republic of Pakistan, 1973 and cannot have retrospective effect;
(ii) that a bare reading of the F.I.R. Shows that the alleged offence is not a terrorist act within the meaning of section 6 of the Anti-Terrorism Act, 1997 and the learned Special Judge, therefore, has no jurisdiction to proceed with the trial;
(iii) that a class of cases mentioned in clause (2) of the Schedule attached with the Anti-Terrorism Act are triable by the Special Court only if the alleged offence falls within the parameters laid down in section 6 of the Act;
(iv) that notwithstanding the order of this Court passed in Criminal Revision No.73 of 1996 the learned transferee Court has fixed the case for arguments which is not tenable in law.
5. We have heard learned counsel for the parties and have given anxious thoughts to the arguments addressed at the bar.
6. When learned counsel for the petitioner was confronted with this Court's judgment dated 17-11- 1997 passed in Writ Petition No.25896 of 1997 wherein it was held that transfer of a case under the Schedule offence to a Court constituted under the Anti-Terrorism Act, 1997 was tenable in view of section 38 of the Act opted not to press the other grounds and submitted that he would confine his submission mainly to the point that the learned transferee Court should proceed in terms of section 12(3) of the Anti-Terrorism Act which mandates"----------such Special Court shall proceed with such case from the stage at which it was pending at that rime without the necessity of recording any witness". According to him the learned Sessions Judge, who had directed de novo trial vide order dated 28-1-1996 and where after no evidence had been recorded, the learned transferee Court shall have to proceed from that stage and shall have to record statements of all the prosecution witnesses afresh.
7. This case unfortunately has chequered background. Despite the case having been registered in the year 1990 the trial has not been concluded till date mainly on account of the changes in law which prompted the parties to challenge the jurisdiction of one trial Court or the other. After the repeal of the Speedy Trial Courts Act, 1992 the case was transferred to the Court of Sessions. The said Court on a move from the District Attorney, vide order dated 26-2-1995 transferred the case to the Special Court under the Suppression of Terrorist Activities (Special Courts) Act, 1975 which order was challenged before this Court and vide order dated 2-7-1995 (PLD 1995 Lahore 602), this Court set aside the same and directed the Sessions Court to proceed with the trial. The learned Sessions Judge decided to proceed with the de novo trial which order was upheld by this Court in Criminal Revision No.73 of 1996) on the grounds as under:-- "Under section 2(2)(e) of Ordinance 52 of 1994 through which the Special Courts for Speedy Trials Act of 1992 was repealed and the cases pending in the Speedy Trail Courts stood transferred to the Court of Sessions it was provided that the Court of Sessions shall on receipt of any case from the said Court try it in accordance with the provisions of the Criminal Procedure Code. It is a mandatory provision, therefore, the Court of Sessions was bound to follow the procedure provided in the Criminal Procedure Code while trying such a case. The expression 'try' would also include the manner and the language in which evidence of the witnesses is to be recorded therefore, the learned Sessions Judge while taking view that the evidence of the witnesses having not been recorded in Urdu by the Special Court for Speedy Trials, as such, under the Criminal Procedure Code he would hold de novo trial, does not suffer from any illegality."
8. Notwithstanding the afore-referred order of this Court it is not denied by the learned counsel for the petitioner that for one reason or the other no witness was examined by the learned Sessions Judge after direction for de novo trial. Therefore, on record the last two witnesses were examined by the learned Special Court for Suppression of Terrorist Activities (Special Courts) Act, 1975. This was the stage of proceedings in trial when the case was sent to the Court of Sessions. In the meanwhile, the case stood transferred to the Special Court constituted under the Anti-Terrorist Act, 1997. The not result would be that the stage of the trial is .The same which was when the case was pending before the Special Court constituted under the Suppression of Terrorist Activities- (Special Courts) Act, 1975 before which the entire prosecution evidence had almost been completed. The learned transferee Court under the Anti-Terrorist Act, 1997 shall have proceed as mandated in section 12(3) which reads as under:-- "Where a declaration is made in respect of an offence committed in an area in a Province, any prosecution in respect of such offence shall be instituted only in the Special Court established in relation to such area, and, if any prosecution in respect of such offence is pending immediately before such declaration in any other Court, the same shall stand transferred to such Special Court and such Special Court shall proceed with such case from the stage at which it wa1 pending at that time without the necessity of recalling any witnesses."
9. The order passed by this Court in Criminal Revision No.73 of 1996 dated 16-1-1997 referred to above was passed with reference to certain provisions in the Code of Criminal Procedure qua trial by the Court of Sessions. Now the case has been transferred to a Special Court constituted under a Special Law and section 5(2) of the Cr.P.C. Enjoins as under:- "Trial of offences against other laws --All offences, under any other law shall be investigated enquired into, trial, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigation, inquiring into, trying or otherwise dealing with such offences. "
10. The argument of the learned counsel for the petitioner that the learned transferee Court should proceed with de novo trial and re-examine all the witnesses of the prosecution would defeat the purpose of the Anti-Terrorism Act, 1997 which in its Preamble enjoins for speedy trial of heinous offences and for matters connected therewith and incidental thereto".
The prayer for re-examination of the prosecution witnesses is not tenable as neither in the body of the petition nor during arguments it has been shown as to how the recording of prosecution witnesses by the then learned trial Court has, in any manner, prejudiced the petitioners-accused. In absence of this no exception can be taken to the procedure adopted by the learned transferee Court to proceed with the trial from the stage from where the evidence had been concluded by the learned trial Court which lastly recorded evidence. Section 537 of the Criminal Procedure-Code mandates as under: Finding or sentence when reversible a by reasons of error or omission in charge or other proceedings. --Subject to the provisions hereinbefore, contained no finding, sentence order passed by a Court of competent jurisdiction shall- be reversed or altered under Chapter XXVII or on appeal or revision on account.
(a)
(b) of any error, omission or irregularity in the mode of trial, including any mis-joinder of charges, unless, such error, omission or irregularity has in fact occasioned a failure of justice. "
11. We have noticed that trial has not concluded despite a lapse of seven years since the - registration of the case to the utter agony of both the complainant and the petitioners-accused.
The justice delayed is justice denied. In passing this order, we have partly been influenced by the mandate of section 561-A, Cr.P.C. Which provides "Nothing in the Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice".
12. For afore-referred reasons we find no merit in this petition which is hereby dismissed.