' TARIQ PARVEZ KHAN, J.--- After the reading of evidence but before making submissions on merit of the case, learned counsel for the appellant raised preliminary objection and wants the annulment of the impugned judgment thereon. It is submitted that case was being tried by Judge, Special Court, D.I. Khan till 20-4-1995 but the same was then sent for trial to Judge, Special Court. Tank (Camp at D.1. Khan) which tantamounts to transfer of the case whereas under section 4-A of the Suppression of Terrorist Activities Act, 1975 (hereinafter called as the Act), as it was originally enacted, it is the Federal Government alone which can transfer one case to another Special Court.
Next it was argued that after the Judge, Special Court, Tank (Camp at D.I. Khan) took cognizance of the case and framed the charge on 29-10-1995, started recording the evidence of the P.Ws. But it was then found on 8-1-1996 that as one of the offences under-trial was Schedule which required to be tried by Judge, Special Court, case was adjourned to 24-1-1996 as the Judge already seized of the trial was not empowered as Judge, Special Court by then.
' Again on 16-9-1996, the case file appears to have been sent by Judge Special Court, Tank (Camp at D.I. Khan) to the Judge, Special Court, D.I. Khan, who recorded further evidence and ultimately on conclusion of the trial, has passed the impugned judgment.
2. Learned counsel for the respondent/complainant, however stated that entrustment of case by the Judge, Special Court, Tank (Camp at D.I. Khan) or vice versa would not amount to transfer of the case as envisaged in section 4-A of the Act but was a mere succession of one Judge, Special Court by the other.
3. In view of the rival contentions, we scrutinized the order sheets of the trial Court and we found as under:-- ' The challan was filed before the Sessions Judge/Judge, Special Court, D.I. Khan on 4-8-1994 who issued process to the accused and also to the witnesses. The case kept on adjourning for one reason or the other when some of the accused filed application under section 265-K, Cr.P.C. For their acquittal and it was on 26-4-1995 when from the Judge, Special Court, D.I. Khan, the file was received by Judge, Special Court, Tank (Camp at D.I. Khan). Here we may refer to Notification, dated 16-4-1995 where his Lordship, the Chief Justice was pleased to order that Mr. Muhammad Ibrahim Khan, the then District and Sessions Judge, Tank, shall tour D.I. Khan for three weeks in a month and that the District and Sessions Judge, D.I. Khan shall forthwith allocate five police stations to him and that pending cases relating to such police stations shall stand transferred to the Court of Mr. Muhammad Ibrahim Khan. Consequently, vide Letter No,264/G, dated 17-4-1995, the learned Sessions Judge, D.I. Khan, allocated five police stations including the police station to which the instant case pertains. It is worth mentioning that the entrustment of cases regarding five police stations to Mr. Muhammad Ibrahim Khan was in the capacity of his being Sessions Judge and not as Judge, Special Court. Mr. Muhammad Ibrahim Khan was transferred on 24-4-1995 and Mr. Abdul Sattar Khan Khattak was posted as District and Sessions Judge, Tank. It was on 23-5-1995 when Abdul Sattar Khan was notified as Judge, Special Court under section 3 of the Act under the direction of Federal Government by the Provincial Government for the areas mentioned therein i,e, Tank District. Mr. Abdul Sattar Khan Khattak was then transferred from Tank to Bannu vide Notification, dated 11-12-1995 and instead Mr. Abdul Mateen Khan was posted as District and Sessions Judge, Tank. Mr. Abdul Matin Khan was then specifically notified as Judge, Special Court under the direction of the Federal Government on 27-12-1995 for the areas mentioned in the Notification i,e, Tank and D.I. Khan.
4. From the above notification it is but clear that it was only Mr. Abdul Matin Khan who was though posted as District and Sessions Judge, Tank, but was having the territorial jurisdiction over District D.1. Khan with regard to offences falling under the Schedule to the Act, meaning thereby that Sessions Judge, Tank, touring D.I. Khan for the first time, was entrusted with the territorial jurisdiction under the Act on 27-12-1995. In this case the charge was framed on 29-10-1995 prior to the date when no Sessions Judge, Tank (Camp at D.I. Khan) was vested with the powers of the Judge, Special Court. Number of witnesses were examined on 12-11-1995 that too by a Judge with no territorial jurisdiction. The question if any prejudice is caused to the defence by framing of charge would not be very relevant in this case because the very framing of charge by a person who has no jurisdiction to take cognizance would definitely vitiate the trial.
5. The cognizance of the offences tried under the Act is taken through section 5 of the Act where the Investigating Officer on completion of the challan, should file the case directly before the Judge, Special Court without the intervention of a Magistrate and under section 5(3), a Judge, Special Court can take direct cognizance as well. Therefore, whether receipt of application under section 265-K, Cr.P.C. Would amount to taking of cognizance or not, has become irrelevant for the time being.
6. In view of what we have discussed above, we are firm in our belief that the accused/appellants stand convicted on the basis of charge and part of evidence which was framed and recorded by a Court which has no jurisdiction. The result would be that all the Appeals of the convicts, bearing Nos.67, 68 and 69 of 1999, are allowed, the conviction/sentence is set aside and their cases stand remanded to the trial Court/Judge, Special Court, D.1. Khan, for trial de novo.
7. The Murder Reference No,7 of 1999 is answered in negative.
8. This being an old case, remained pending in this Court for two years, the learned trial Court is directed to expedite the matter. The accused should be produced before such Court on 5-5-2001.
9. As far as the case of Muhammad Umair and Abdur Rehman is concerned, they were acquitted by the trial Court, though through the impugned judgment which we have set aside but because their acquittal was never challenged either by the complainant or by the State, they shall remain acquitted. Criminal Revision No,2 of 2000 stands dismissed.