1. ' GHULAM RABBANI, J.---These three Constitutional petitions involved identical questions of facts and law and are disposed of by this common judgment.
2. ' The petition have prayed that Special Case No,17 of 2001 arising out of Crime F.I.R. No,46 of 2001 registered at Police Station Pinyari District, Hyderabad under sections 337-A(i), 353, 435, 436, 114, 147.
3. 148 and 149. P.P.C., read with section 17(3) of Offence Against Property (Enforcement of Hudood)
4. Ordinance be transferred from Anti-Terrorism Court to any other Court competent to try the same.
5. ' Brief facts of the case are that the abovementioned F.I.R. Was registered on 18-5-2001 at about 1600 hours according to which the relevant prosecution story is that on the said date at about 1400 hours applicants and other co-accused named therein, heading about 200/250 persons in form of procession, arrived in front of said Police Post Pretabad at the instance of co-accused Nisar Firadeya, Illyas Kazi and applicant Nasir, then set Government Mobile No,SP-5022 of Pinyari Police Station on fire by sprinkling Petrol, by force entered into premises of Police Post, took away Government China Rifle No,1510019, 200 rounds one set of handcuffs and also set on fire daily diary, personal clothes of Police Personnel, official dresses, two bullet proof jackets, official papers lying in the drawer of a table, complaints received for inquiry and other furniture by sprinkling Petrol, therefore, despite resistance offered by the Police. It is alleged that during this incident Mobiles from Sakhi Pir, and Phulleli Police Stations also arrived with Sub-Inspector Sultan Badshah and A.S.I.
6. Ghulam Rabbani with other staff so also A.S.I. Muhammad Ayoob with staff of Pinyari Police had already arrived on which the members of the angry job pelted stones causing injuries to PC-726 Ayaz, therefore, the Police in order to stop the procession fired in the ai rand the mob of persons including accused made their escape good.
7. ' As a result of registration of above crime, the applicants were arrested and subsequently challaned before the Anti-Terrorism Court.
8. ' Applicant moved application under section 23 of Anti-Terrorism Act before the trial Court requesting for transfer of this case to a Court having jurisdiction. Learned Judge Anti-Terrorism Court Hyderabad Division dismissed the said applications by his order, dated 14-1-2001. Thereafter, the petitioners have filed these Constitutional petitions with prayers as above, ' Contentions of learned counsel for the applicant Master Hikmat are that the sections applied in the F.I.R. Are not scheduled offence within the meaning of section 2(2) of the Anti-Terrorism Act, 1997 (to be referred to as "the Act"), Allegation as spelt out in the F.I.R. Do not warrant application of section 6(d) of the Act, as substituted by Amending Ordinance No,XXIX of 2000 promulgated on 24- 7-2000, as it lost its efficacy after expiry of four months in view of provisions of Article 89 of the Constitution; as such the application/addition of section 6 (ibid) at the time of the submission of challan against the applicants is illegal so also the cognizance taken by Anti-Terrorism Court is without jurisdiction.
9. ' Mr. Zahoor A. Balouch Advocate for the petitioner Ahmed Nasir Ansari and Mr. Ahmed Raza Siddiqi, Advocate for petitioner Muhammad Tufeel and another adopted the arguments of learned counsel for the petitioner Master Hikmat Ali. Mr. Zahoor A. Balouch added that section 6(d) of the Act was not available on statute book, therefore, cognizance could not be taken by the learned Anti- Terrorism Court.
10. ' Mr. Noorani, learned A.A.-G., submitted that it is very clear from the F.I.R., that the applicants not only caused damage to and destruction of Government vehicle but they also set at fire other property belonging to State and to after completion of the investigation the challan was submitted before the trial Court by adding section 6(d) of the Act. 'He submitted that on 18-5-2001, the Ordinance introducing clause (d) of section 6 did not lapse but continues to remain in force in view of Article 5 of Provisional Constitution Order 1 of 1999 read with Article 2 of Provisional Constitution (Amendment) , Ordinance, 1999 (Order 9 of 1999). Therefore, the Anti-Terrorism Court did have the jurisdiction to take cognizance of the offences as alleged against the applicants.
11. ' Mr. Siddiqi learned Federal Counsel concurred with the views of learned A.A.-G. And expressed that the Anti-Terrorism Court had rightly taken the cognizance of the offence as alleged against the petitioners.
12. We have given our anxious consideration to the arguments of learned counsel for the parties and have also examined the material available before us. There are allegations against the applicants that they, in company of others, set on fire Government vehicle and also set other property of Government and others on fire. There is no dispute about the date of alleged offence, addition/application of section 6 at the time of challan against applicants and others so also it has been admitted by learned counsel for the petitioners that section 6(d) of the Act was substituted by Amending Ordinance No,XXIX of 2000 promulgated on 24-7-2000. Said clause (d) of section 6 is reproduced as follows:- "[(d) commits and act of vehicle snatching or lifting, damage to, or destruction of, State or private property, random firing to create panic, charging bhatha or criminal trespass (illegal qabza)]".
13. ' On 14-10-1999 Provisional Constitution Order No,1 of 1999 was issued. Article 5 of the said order reads as follows:-- "Notwithstanding the abeyance of the provisions of the Constitution, but subject to the Orders of the Chief Executive all laws other than the Constitution shall continue in force until altered, amended or repealed by the Chief Executive or any authority designated by him."
14. ' On 15-11-1999 Provisional Constitution (Amendment) Order, 1999 (Order 9 of 1999) was issued.
15. Article 2 of the said order introduced Article 5 of the Provisional Constitution Order No,1 of 1999 as follows:- "In Article 5 of the Provisional Constitution Order No,1 of 1999 after the words 'the Constitution' and before the words 'shall continue', in line 3, the words 'all Ordinances', Order, Rules, Bye-laws, Regulations, Notifications and other legal instruments in force in any part of Pakistan whether made by the President or the Governor of a Province', shall be inserted and shall be deemed to have always been so inserted."
16. ' Article 4 of the abovementioned order of 1999 reads as follows:-- "Subject to the Proclamation Order of the Chief Executive of the Fourteenth day of October, 1.999 and the provisions of the Provisional Constitution Order No,1 of 1999 as amended, the President of the Islamic Republic of Pakistan on the advice of the Chief Executive, and the Governor of the Province on instructions of the Chief Executive, may issue and promulgate Ordinance which shall not be subject to the limitation as in their duration prescribed in the Constitution."
17. In view of above provision of law, in our humble view, Amending Ordinance No,XXIX of 2000 substituting section 6(d) has not lapsed but continues to be in force and was so in force on 18-5- 2001. i,e, the date of incident.
18. ' Section 2(d) of Anti-Terrorism Act, provides the definition of "scheduled offence" meaning a terrorist or hereto. The Schedule at serial number 1 includes any offence punishable under this Act.
19. Section 6(d) is punishable under section 7 (iii) of the Act, Section 12(1) of the Act provides that, notwithstanding anything contained in the Code or in any other law, a scheduled offence committed in an area in a Province shall be triable only by the Anti-Terrorism Court exercising territorial jurisdiction in relation to such area. Accordingly we are clearly of the view that the Anti- Terrorism Court had the jurisdiction to take cognizance of offence falling within the definition of section 6(d) of the Act.
20. ' The effect of the above discussion is that we find no merit in these Constitutional petitions and dismiss the same in limine.