' TASSADUQ HUSSAIN JILLANI, J.--- Petitioners are facing trial before a learned Special Court established under the Anti-Terrorism Act, 1997 in the case registered vide F.I.R. No,412 of 2002, dated 19-12-2002 under sections 324/353/148/149, P.P.C. And section 13 of the Arms Ordinance XX of 1965 read with section of Anti-Terrorism Act, 1997, Police Station Manawan, District Lahore in which the allegations levelled are that they, alongwith four others, resorted to firing with prohibited bore weapons on police force. In the final report submitted under section 173, Cr.P.C. Only the petitioners were arrayed for trial and the remaining four were left out for lack of evidence. With regard to petitioners and three others a detention order was also passed by the Ministry of Interior, Government of Pakistan, under section 3(1) of the Security of Pakistan Act, 1952. The detention order was challenged in Writ Petition No,62 of 2003. The petition was allowed with regard to the remaining three vide judgment, dated 17-2-2003 while with regard to the petitioners it was upheld.
The Special' Public Prosecutor moved an application before the learned trial Court under section 344, Cr.P.C. Praying that the accused may not be directed to appear before the learned trial Court and the case be adjourned for a period of three months as their public appearance may create a law and order situation. This application was turned down by the learned trial Court vide order, dated 21-1-2003 as it was of the view that there was no provision in law which could empower the learned trial Court to keep the accused, under trial, in judicial lock-up for a period of three months.
The Public Prosecutor moved yet another application in which the Court was apprised of the fact that the Home Department, Government of the Punjab, vide Notification No,SO/(Judl.II)5-16/2001, dated 4th February, 2003 had directed that the trial be held in jail premises and the Court may pass an appropriate order giving effect to the said order. This application was allowed vide impugned order, dated 19-2-2003.
2. Petitioners have challenged the order of their trial in jail premises on the grounds that it does not specify any tenable ground to justify their trial in jail premises and that there are no objective conditions to warrant such an order. In support of this petition, Mr. Pervez Inayat Malik, learned counsel for the petitioners, made following submissions:--
(i) That the petitioners were on bail and the request of the Public Prosecutor for adjourning the case for a period of three months had been declined. The order impugned, in the afore-referred circumstances, amounted to frustrate the order passed by the Court;
(ii) that notwithstanding the repeated orders passed by the learned trial Court, the petitioners were not produced before the Court which shows that the prosecution was not prepared to produce the accused before an open Court under any circumstance and the order passed by the Home Department is mere reiteration of this intent on the part of the prosecution;
(iii) that section 15(2) of the Anti-Terrorism Act, 1997, insofar as it empowers the Home Department to direct that trial in jail militates against Article 175 of the Constitution of Islamic Republic of Pakistan, 1973 which guarantees independence of judiciary;
(iv) that under well-established principles of interpretation of statutes in the presence of two inconsistent provisions, the Court has to follow the provision which is later in time and in the instant cases section 15(3) should have precedence over section 15(1) of the Anti-Terrorism Act, 1997 as the later provision ensures primacy of the Court whereas the former gives arbitrary power to the executive. In support of the submissions made, learned counsel for the petitioners relied on Asif Ali Zardari v. Special Judge (Offences in Banks) and 10 others PLD 1992 Kar. 437, Muhammad Ashfaq Chief v. Government of Sindh and others PLD 1996 Kar. 326, Mahram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445 and Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through the Prime Minister and another PLD 1989 Kar.
404.
3. Syed Shabbar Raza Rizvi, the learned Advocate-General, Punjab while defending the order passed by the Home Secretary as also by the learned trial Court and justifying the trial in jail premises, submitted as under:--
(i) That the order impugned in this petition is that of the learned trial Court which order is amenable to revisional jurisdiction and this Court may not like to interfere while exercising the Constitutional jurisdiction;
(ii) that section 15(1) of the Anti-Terrorism Act, 1997 empowers the Provincial Government to direct holding of trial "anywhere" which specifically includes "Cantonment area" and "Jail premises";
(iii) that the power of the Provincial Government to specify or determine the place of trial is not unique inasmuch as even the Criminal Procedure Code vests this power with the Government in terms of sections 177 and 178;
(iv) that the order specifying the place of trial is not amenable to judicial review, firstly, because section 15 of the Anti-Terrorism Act, 1997 does not require the Home Department to specify the grounds for passing such an order and, secondly, the question whether the facts and circumstances of a particular case justifies trial at a place other than the ordinary place, can only be decided by the Competent Authority;
(v) that this Court while upholding the detention of the petitioners in Writ Petition No,62 of 2003 had come to a conclusion that the petitioners' contention under the Security of Pakistan Act, 1952 was tenable which further lends credence to the order passed by the Home Department, Government of the Punjab. He added that the Government has information that the frequent communication, transportation and their public appearance may lead to a situation which may endanger the public peace.
' In support of the submissions made, learned Advocate-General relied on Muhammad Ashfaq Chief v. Government of Sindh and others PLD 1996 Kar.
326. Reference made by Sessions Judge, Larkana for transfer of cases 1990 PCr.LJ 1687, Kehar Singh and others v. The State PSC 1989 SC 533, State Islamuddin alias Changha 1984 PCr.LJ 273, Sar Khan v. The State and another PLD 1967 Pesh. 314, Sheikh Hafeez Ahmad v. The State through Secretary (Home), Government of the Punjab, Lahore PLD 1975 Lah. 1453 and Inayat Hussain v. The State AIR 1956 All.
448.
4. We have heard learned counsel for the parties, have given anxious consideration to the submissions made and have. Gone through the precedent case.
5. There is no cavil to the proposition that an accused is presumed to be innocent unless proved otherwise. In accord with this presumption and the canons of justice, the Criminal Procedure Code and the Evidence Act, inter alia, include safeguards for a fair trial of an accused and the provision for open trial is one of those safeguards. A trial, in the veil of secrecy, may offend these canons without which the trial would lose its credibility. However, there could be a case or a class of cases, trial of which at the ordinary place of sitting may be hazardous to public security. The provision in the special law empowering the Government or the Special Court to specify the place of trial caters to such kind of cases. But this provision of specifying the place of trial should not, in any manner, compromise with the requirement of fair trial. The Criminal Procedure Code itself in section 5(2) creates an exception insofar as special laws are concerned. The petitioners are facing trial under the Anti-Terrorism Act,, 1997, section 15 of which provides as under:-- "15. Place of sitting. -(1) Subject to subsections (2) and (3) an Anti-Terrorism Court shall ordinarily sit at such place including Cantonment area or jail premises or places as the Government may, by order, specify in that behalf.
(2) The Government may direct that for the trial of a particular case the Court shall sit at such place including the place of occurrence of an offence as it may specify.
(3) Except in a case where a place of sitting has been specified under subsection (2), an Anti- Terrorism Court may, if it considers it expedient or desirable so to do either suo motu or on the application of the Public Prosecutor sit, for holding the trial of a case at any place including a mosque other than the ordinary place of its sitting."
' The afore-referred provision in the special law is not country specific. We are living in difficult times and there is a world-wide trend to enact special laws for trial of offences which have been declared to be scheduled offences under those laws. Such laws empower the Government or the Court to specify the place of trial on account of the nature of the case or circumstances surrounding it. This may be necessary for the security of the Court, of the parties, their witnesses and for any other valid reasons which may weigh with the Competent Authority. Notwithstanding Such a special provision, the Court has to ensure a fair trial and for that there are elaborate provisions in the Criminal Procedure Code, the Evidence Act and in the special law. In the instant case we note that the Public Prosecutor had, right at the outset, prayed to the learned trial Court that the Government was not in a position to bring the accused to Court and that their transportation may endanger their security but the prayer was declined and it was after that the Home Secretary passed the impugned order but even then it sought the order to be sanctified by the Court and made an application to the learned trial Court for granting the requisite approval.
The Court has granted the approval vide the impugned order. Subsection (1) of section 15 of the Anti-Terrorism Act, 1997 would indicate that the Anti-Terrorism Court has to sit at such a place which the Government may specify including "Cantonment area" or "jail premises" or the Court may direct in terms of subsection (2) of the said Act for trial or a particular case at such a place which it may specify and finally in terms of subsection (3) (ibid) even the Anti-Terrorism Court, itself may if it considers expedient or desirable to decide the place of trial. The order of the Home Secretary does not spell out reasons nor there is a mandatory requirement under section 15 of the Anti-Terrorism Act, 1997 to do so. A well-reasoned and speaking order ensures transparency and inspires greater confidence. However, the order by a learned Judge of this Court in Writ Petition No,62 of 2003 whereby petitioners' detention was upheld, refers to the seriousness of the case. It reads as under:-- "That there is enough material available on the record unearthed during the investigation of the above-said crime case F.I.R. No,412 of 2002, dated 19-12-2002 registered at Police Station Manawan, Lahore, and the recoveries effected from them and the evidence collected, prima facie, established their connection with members of Al-Qaeda, justifying the passing of the impugned order. Al- Qaeda has been declared as terrorist organizations by the United Nations Security Council vide Resolution No,1373 and Pakistan being a Member State of the United Nations and ' signatory of United Nations Resolution and Conventions. Al-Qaeda is treated as a terrorist organization in Pakistan. Respondent No,2, therefore, can validly pass a detention order under section 3(1) of the Security of Pakistan Act, 1952, if it is reasonably 'satisfied' that the person to be detained has connection with Al-Qaeda under Article 40 of our Constitution, respondent No,2 is under an obligation to take necessary steps to promote international peace and security and the impugned detention order, to the extent of these two detenus is justifiable, on this policy guideline as well."
' The omission to spell out reasons in the afore-referred circumstances by itself would not make the order of the Home Secretary unlawful in absence of any apparent mala fides. There is, therefore, no jurisdictional defect to warrant interference under Article 199 of the Constitution. The precedent case-law to which reference has been made by the petitioners' learned counsel would not be of much avail to him, firstly, because in Asif Ali Zardari's case (supra), issue before the learned Court was the trial of a case in jail premises under the Suppression of Terrorist Activities (Special Courts)
Act, 1975 and the ratio laid down by the Court, in the said judgment, was that under section 3 of the afore-referred Act, the Government did not have such a power. The provisions of the Anti-Terrorism Act, 1997, as discussed in the preceding paragraphs, are all together different and they specifically empower the Government as also the trial Court to specify the place of trial. The judgment of the august Supreme Court in Mehram Ali's case (supra) dilated in detail on the vires of the Anti- Terrorism Act, 1997 and admittedly section 15 of the said Act has not been declared ultra vires of the Constitution. The ratio in Sharaf Faridi's case (supra) indeed lays down important principles of independence of judiciary and uphold the mandate-of Article 175 of the Constitution of Islamic Republic of Pakistan, 1973 but we are of the considered view that the provision of a power with the executive to decide the place of trial does not, by itself, impinge on independence of judiciary or conscious of a Court. The trial continues to be an open trial and is to be regulated by the learned trial Court with due regard to security of the parties, witnesses and the Court itself. The rights of an accused and principles of .Appreciation of evidence continue to remain the same. The apprehensions expressed by the petitioners' learned counsel, therefore, are misconceived.
6. For what has been discussed above, we do not find any merit iniF this petition which is dismissed.