2025 M L D 1416
[Balochistan]
Before Sardar Ahmed Haleemi, J
BANGUL KHAN---Petitioner
Versus
The STATE---Respondent
Criminal Revision No. 108 of 2024, decided on 15th May, 2025.
Criminal Procedure Code (V of 1898)---
----S. 227---Anti-Terrorism Act (XXVII of 1997), S. 7 & 23---Penal Code (XLV of
1860), Ss. 365, 147, 148 & 149---Transfer of case from ordinary Court to Anti-
Terrorism Court---Scope---Application of the complainant for the transfer of case from
ordinary Court to the special Court was allowed by the Trial Court (Ordinary Court)---
Validity---Perusal of record revealed that the complainant implicated the petitioner and
his companions in the kidnapping of two persons on account of 'demanding "Batta", and
on refusal, the accused persons tortured the abductees and made their immoral videos---
If the challan of the case was submitted before the Ordinary Court, then the said
Ordinary Court on receiving the challan considered the available material to determine
the scheduled offences of ATA---Upon forming a view, the Ordinary Court shall return
the challan to the prosecution for onward presentation before the ATC---During the trial,
on the application of a party or its own initiative, if evidence showed that the scheduled
offences were triable by the ATC, then the Ordinary Court shall send the reference under
S.526(3), Cr.P.C., to the High Court and upon such reference, the Chief Justice might
have after notice to the Prosecutor General and the concerned party, as the case might
be, passed an appropriate order---Thus, it was concluded that the ordinary Court, i.e.
Sessions Judge, being bereft of supervisory authority over the Anti-Terrorism Court,
could not unilaterally transfer the case thereto and had to follow the mechanism
provided under the law, as such, the impugned order was not sustainable---Criminal
Revision Petition was partly allowed---Consequently, the impugned order passed by
Sessions Judge was set-aside and the applications filed by the petitioner and the
complainant were deemed pending---After hearing the parties, the Trial Court shall
decide the applications on merits by following the law.
Muhammad Akbar Khan and others v. SHO P.S Garhi Khairo 2017 PCr.LJ 1280 and
Ali Nawaz v. The State 2024 PCr.LJ 658 rel.
Iftikhar Ahmed Langove for Petitioner.
Abdul Karim Malghani for the State.
Naimatullah Achakzai and Rahimbaz Mandokhail for the Complainant.
Date of hearing: 5th May, 2025.
ORDER
SARDAR AHMED HALEEMI, J.--- This Criminal Revision Petition is directed
against the Order dated 04th October, 2024 (hereinafter the "impugned order") passed by
learned Sessions Judge, Killa Saifullah (hereinafter the "trial Court"), whereby the
application filed by the Complainant under section 227, Cr.P.C. read with section 6-K of
Anti- Terrorism Act for alteration of charge and transfer of the case from ordinary Court to
Anti-Terrorism Court, Killa Saifullah was allowed and the application filed by the
accused/applicant for transfer of the case from the Court of Sessions Judge, Killa Saifullah
to the court of learned Judicial Magistrate, Killa Saifullah was dismissed.
2. Compendium facts of the instant petition are that Samiullah lodged FIR No.34 of 23
under sections 365, 147, 148 and 149, P.P.C at Police Station Killa Saifullah to the effect
that on 25-05-2023 at about 11:45 pm, his cousin, namely Attaullah (Deputy Director
Agriculture) in his official vehicle bearing No.GBB-730 along with his accomplice
Shamsullah in a Cultus car bearing No. LE-5956 were travelling from Killa Saifullah Bazar
towards Killi Shagai Paizai; the accused persons, namely Bangul Khan and Ghous-ud-Din
along with their six unknown companions, kidnapped Attaullah and Shamsullah with
vehicles and took them to Bangal Compound Bahadur, Killa Saifullah; however on
26.05.2023, at about 9:25 am, Shamsullah in an injured condition and Attaullah in
unconscious condition were brought to Civil Hospital, Killa Saifullah; after first aid
treatment, both the wounded persons were referred to Quetta. On query, he came to know
that the accused persons when kidnapped Attaullah and Shamsullah also took their CNICs
and mobiles along with the official vehicle bearing No. GBB-730, which is in possession of
the accused persons; that the accused persons demanded money from the abductees and on
refusal, they made their immoral videos, hence the FIR.
3. In pursuance of the crime report, the police authorities arrested Rozidin, Ahsanullah
and Dadullah, and after submission of interim challan to their extent, the trial commenced.
The prosecution concluded its evidence, and the matter was fixed for the statement of
accused persons under Section 342, Cr.P.C. Meanwhile, the absconding accused Bangul
Khan (the petitioner) and Ghous-ud-Din were arrested. After the usual investigation, the
challan was submitted before the trial Court, and the trial commenced.
4. During the pendency of proceedings, the Complainant filed an application under
section 227, Cr.P.C. read with section 6-K of the Anti-Terrorism Act, 1947 ("Act, 1947"),
with the prayer to alter the charge and the case file be transmitted to the Court of the Special
Judge Anti-Terrorism, Killa Saifullah. Likewise, the counsel for the accused, Ahsanullah,
also filed an application praying that the alleged offences are triable by the Judicial
Magistrate, as such, the case file be transferred to the learned Judicial Magistrate, Killa
Saifullah.
5. After hearing arguments from both sides, the trial Court allowed the Complainant's
application and dismissed the application filed by the accused persons, vide impugned Order
dated 04-10-2024, whereby the case file was transferred from the Court of learned Sessions
Judge, Killa Saifullah to the Court of the Special Judge Anti-Terrorism, Killa Saifullah,
hence this Criminal Revision Petition.
6. Learned counsel for the petitioner inter alia contended that material available on
record constitutes an offence under section 365, P.P.C, which is exclusively triable by a
learned Judicial Magistrate, but the trial Court has not considered this aspect of the matter;
that the Special Court is not subordinate of the Ordinary Courts, as such, the trial Court is
not competent to transfer the instant case to the Special Court of ATA; that the trial Court
has not adhered the provisions of Section 526, Cr.P.C. in letter and spirit, thus, the
impugned Order is patently illegal; that pre-requisites of Section 365-A, P.P.C read with
Section 6-K of the Act, 1947 are missing in the instant case; that without dilating upon the
legal and factual aspect, the trial Court has passed the impugned Order, which suffers from
illegality and irregularity, therefore, the same has no legal sanctity and liable to be set
aside.
7. Conversely, learned counsel for the Complainant, assisted by learned State counsel,
controverted the contentions advanced by learned counsel for the petitioner and maintained
that assessment of material available on record constitutes an offence under Section 365-A,
P.P.C read with Section 6-K of the Act, 1947, which are scheduled offences and triable by
Special Courts; that the trial Court had considered all the factual and legal aspects of the
matter and passed the impugned Order on valid reason; that after the conclusion of the
evidence, it is evident from the record that the trial Court was not competent to adjudicate
further upon the matter, as such, the findings rendered by the trial Court are based on proper
appreciation of oral and documentary evidence, and the same are immune from interference
and lastly supported the impugned Order.
8. I have heard the valuable arguments of learned counsel for the parties and scrutinized
the material available on record.
9. Perusal of record reveals that the Complainant Samiullah implicated the petitioner
and his companions in the kidnapping of Attaullah and Shamsullah on account of demanding
"Batta", and on refusal, the accused persons tortured the abductees and made their immoral
videos. The pivotal question before this court is about the competence of the Ordinary Court
to transfer a case file to the Anti-Terrorism Court (ATC). In this context, the law provides
different mode for transferring the case file from the court of ordinary jurisdiction to ATC;
firstly, if the challan of the case is submitted before the Sessions Judge/Additional Session
Judge (Ordinary Court), then the said Ordinary Court on receiving the challan, considers the
available material to determine the schedule offences of ATA. Upon forming a view, the
Ordinary Court shall return the challan to the prosecution for onward presentation before the
ATC. Whereas, a Judicial Magistrate under Section 190, Cr.P.C. is only empowered to try a
cognizable offence, and if, at the conclusion of the evidence, it appears that the punishment
of triable offences is more than seven years, then the concerned Judicial Magistrate under
Section 346, Cr.P.C. transmits the complete case file to the Ordinary Court. Secondly, during
the trial, on the application of a party or its own initiative, if evidence shows that the
scheduled offences are triable by the ATC, then the Ordinary Court shall send the reference
under Section 526(3), Cr.P.C, to the High Court, and upon such reference, the Chief Justice
may after notice to the Prosecutor General and the concerned party, as the case may be, pass
an appropriate order. In the case of Muhammad Akbar Khan and others v. SHO P.S Garhi
Khairo (2017 PCr.LJ 1280 Sindh), it has been held that the Special Court constitutes under a
special statute do not fall within the administrative or judicial subordination of subordinate
Courts, therefore, Section 528, Cr.P.C. is inapplicable. For convenience, the relevant part of
the judgment is reproduced as under:
"7. We have heard learned counsel for the parties and perused the material available
on record. The District and Sessions Judge, or Additional Sessions Judge on
examining the case and consideration of facts that manner in which alleged crime was
committed comes within the purview of Anti-Terrorism Act but being a District and
Sessions Judge/Additional District and Sessions Judge is not authorized to declare
any offence as scheduled offence. In fact the Anti-Terrorism Court do possess
jurisdiction to transfer the case to the court of ordinary jurisdiction, however, no such
powers are conferred on the ordinary courts of criminal jurisdiction to transfer the
case from its docket to the Court of Anti-Terrorism Act in a situation where the
learned Sessions Court/Additional Sessions Court is of the opinion that alleged
offence is triable by the Anti- Terrorism Court as the commission of the crime has
created panic and terror amongst the people and the manner the crime has been
committed has developed sense of fear and insecurity in the mind of people or any
section of society then two courses are available to the learned Sessions Court firstly,
reference may be made to the Chief Justice of High Court in terms of subsection (3)
of section 526, Cr.PC. it will be conducive to read section 526(3), Cr.P.C which says
as under:-
526. High court may transfer case or itself try it.
(1)…………………………………………………..
(3) The High Court may act either on the report of the lower court, or the application
of a party interested, or on its own initiative."
Upon such reference, the Chief Justice may after notice to the Prosecutor General
Sindh and the accused or the complainant party, as the case may be, pass such orders
as may be expedient after taking slack of facts and circumstances of the case ordering
transfer of the case from the Court of Session to the Anti-Terrorism Court. Reference
can be had from the case of Naseem v. The State (1997 MLD 275) whereby the Single
Bench of this Court has held as under:-
"This means, in other words, the accused must be provided an opportunity of having
been heard, before an order in regard to the withdrawal of his case from Sessions
Court to the court established under the Special Courts (Suppression of Terrorist
Activities) Act, 1975 is passed. During the course of hearing it transpired that neither
any notice was given to the accused nor he was heard before passing the impugned
Order. This being in violation of the principles of natural justice, was illegal. I am
fortified in my view by the judgment reported as Anisa Rehman v. P.I.A.C. 1994
SCMR 2232, wherein violation of principles of natural justice have been equated with
the violation of principle of law. I am also of the view that principles of natural
justice would now have to be considered as a constitutional concept, enshrined in
Articles 3 and 4 of the Constitution, which contain the due process clause."
9. The other option to the Sessions Judge/Additional Sessions Judge is that he
should issue notice to the Prosecutor General and to the accused/Complainant
party/any aggrieved, as the case may be and after an opportunity of being heard,
comes to a conclusion that the case is of the nature triable by the Anti-Terrorism
Court, then may return the challan to the Court/agency/Investigating Officer for
submitting the same before the court having jurisdiction in the matter as it is well
settled principle of law that Special Courts constituted under special statutes
(Special Courts) are neither subordinate to the Sessions Court nor they fall within
the hierarchy of the Courts as provided in the Criminal Procedure Code and the
Additional Sessions Judge, could not be equated with transfer of case contemplated
by section 528, Cr.P.C. or section 4 of the Suppression of Terrorist Activities
(Special Courts) Act, 1975 or section 23 of the Anti-Terrorism Act, 1997. It is well
settled principle of law that if any case exclusively triable by Special Court is sent
before the ordinary court by mistake then the court either directly or through
Sessions Judge would be competent to send back said case to Special Court for want
of jurisdiction. Such exercise, however will not be equated with the transfer of a
case within the meaning of section 528, Cr.P.C. Reference can be had from the case
of Muhammad Iqbal and another v. The State reported in 1992 MLD 287 whereby
learned Single Judge of this Court had held in para. No.6 of the judgment as under.-
"Coming now to the second question, whether the Sessions Judge is empowered to
transfer a case pending on his file or on the file of any of the Courts subordinate to
him, to the Judge, Special Court (Suppression of Terrorist Activities), under the
provisions of section 528, Cr.P.C., it must straightaway be conceded that he is not
competent to do so. The Judge, Special Court (Suppression of Terrorist Activities) is
not a court subordinate to a Sessions Judge within the meaning of section 528, Cr.P.C.
At least I cannot find anything in section 528, Cr.P.C. thereby enlarging its scope.
Section 4-A of the Suppression of Terrorist Activities (Special Courts) Act, 1975,
alone empowers the Government to transfer cases, but that too from one Special
Court to other Special Court."
10. Reverting to the contention whether the Additional Sessions Judge was competent
or not by means of section 526(3), Cr.P.C., obviously, learned Additional Sessions
Judge was not competent to send back the case straightaway and decide the fate of the
case without hearing to the petitioners/accused and other side.
11. The sum up total of the above discussion is that the Anti-Terrorism Courts do
possess jurisdiction to transfer the case to the court of ordinary jurisdiction, however
no such powers are conferred on the ordinary Courts of criminal jurisdiction to
transfer the case from its docket to the Anti-Terrorism Court in a situation where
learned Sessions Court is of the opinion that alleged offence is triable by the Anti-
Terrorism Court if he comes to the conclusion that commission of the crime has
created panic and terror amongst the people and the manner in which the crime has
been committed has developed sense of fear and insecurity in the mind of the people
or any section of the society then the learned Sessions Judge has to make reference of
the case to the honourable Chief Justice of High Court in terms of subsection (3) to
section 526, Cr.P.C.
Similarly, in the case of Ali Nawaz v. The State (2024 PCr.LJ 658), the Lahore High
Court discussed the validity of the reference mechanism under Section 526, Cr.P.C. The
operative part reads as follows:
"6. There are two situations when the case routes from court of ordinary jurisdiction
to Anti-Terrorism Court and both have different regimes. If the challan is put before
any Court of ordinary jurisdiction and said court on receiving challan considers that
scheduled offence of Anti-Terrorism Act is attracted from the facts of the case, it shall
return the challan to prosecution for its presentation before Anti-Terrorism Court
because under section 190 of Cr.P.C. It is the mandate of magistrate to take
cognizance of only those offences which he is empowered to try or send to court of
sessions for trial. This arrangement is also within the scheme of law because Anti-
Terrorism Court is authorized to take direct cognizance of the offence triable by such
court without the case being sent to it under section 190 of Cr.P.C. as mentioned
under section 19(3) of Anti-Terrorism Act, 1997, and such court is authorized to
decide the question of jurisdiction as per section 23 of Anti-Terrorism Act, 1997.
Reference may be made to cases reported as "Rao Fahd Ali Khan v. The State and
another" (2014 PCr.LJ 1071 Islamabad), "Mir Ali v. The State and another (2020
PCr.LJ 1060 (Kar.) and "Ali Akbar and another v. The State (PLD 1995 Kar. 10).
8. However, when the case is pending trial and a question of jurisdiction arises then of
course challan cannot be returned to the prosecution because by the time certain court
processes are on the record including the evidence that become part of judicial record
which cannot be handed over to the prosecution nor can be kept in isolation in court
record while detaching the challan only because evidence recorded by one court can
be acted upon by the Successor Court. In such situation the right course would be
sending the challan directly by the court of ordinary jurisdiction to the Anti-Terrorism
Court. Section 12(1) of Anti-Terrorism Act, 1997 states that:-
"(1) Notwithstanding anything contained in the Code or in any other law, a scheduled
offence committed in an area in a Province or the Islamabad Capital Territory shall be
triable only by the Anti-Terrorism Court exercising territorial jurisdiction in relation
to such area."
In order to respect above mandate of law, it is incumbent upon every other court to
send the case for trial before Anti-Terrorism Court.
12. Now turning to the situation, if the case is pending before the Court of a
Magistrate, as in the present case, then a slight shift in the procedure is the
requirement of law. Magistrates though assume jurisdiction on a report submitted
under section 173, Cr.P.C. however, they are subordinate to the Sessions Judge and
work is distributed among them as per section 17 of the said Code, therefore, though
they are authorized to return the challan before the cognizance is taken as explained
above, yet they cannot send the case directly to the Anti-Terrorism Court when the
case has crossed the stage of cognizance. Section 346 of Cr.P.C. explains somewhat
like procedure as under:-
……………………………………………………………………………
……………………………………………………………………………
…………………………..This section clearly mandates to raise hands if the
Magistrate lacks jurisdiction or is not empowered to try the case due to some other
reasons, or decides that case should or ought to be tried by Court of Session, he can
send the case to the Court of Session. Cases reported as "Muhammad Hanif v. The
Crown" (PLD 1956 Lahore 394); "Ghulam Hussain and others v. The State" (1985
PCr.LJ 2334), are referred. Section 347, Cr.P.C. is also a support to above legal
provision. Though by virtue of section 32 of Anti-Terrorism Act, 1997, an Anti-
Terrorism Court is deemed to be a Court of Sessions but as the case is entrusted to
the Magistrate by the Sessions Judge under section 17 of Cr.P.C. and is also
empowered to withdraw a case from the Court of Magistrate under section 528 of
Cr. PC, therefore, Magistrate shall stay the proceedings and submit case, with a
brief report explaining its nature, to the Sessions Judge for onward transmission to
the Anti-Terrorism Court for its opinion. An Anti-Terrorism court for this purpose is
deemed as Magistrate authorized under section 190 which gives powers to take
cognizance of an offence on police report, private complaint and upon his own
information. For cognizance upon his own information a judgment of Division
Bench of this Court is cited passed in case reported as Y.K. Lee v. D.I.G. Sargodha
and 4 others" (2007 YLR 1554); therefore, on taking cognizance by the Anti-
Terrorism Court, it can decide the jurisdiction either to assume it under section
19(3) of Anti-Terrorism Act, 1997 or take action under section 23 for transfer of
case back to court of ordinary jurisdiction and thereafter concerned Court of
Magistrate can recommence the trial from the stage it was stayed under section 346,
Cr.P.C.
13. Attending to submissions made by Ms. Noshe Malik, Learned Deputy Prosecutor
General, a course for transfer of case under section 526, Cr.P.C. is also available, if
the case is being tried by a Magistrate or Court of Session. High Court under section
526(3), Cr.P.C. is empowered to transfer the case from court of ordinary jurisdiction
to Anti-Terrorism Court, and this would be done in following manner as mentioned in
above section:--
"(3) The High Court may act either on the report of the Lower Court, or on the
application of a party interested, or on its own initiative."
The authority of High Court particularly for transfer of case from court of ordinary
jurisdiction to Anti-Terrorism Court has been acknowledged in case reported as
"Muhammad Akbar Khan and 3 others v. S.H.O. P.S. Garhi Khairo, District
Jacobabad and others" (2017 PCr.LJ 1280) (SINDH). Under Section 526, Cr.P.C.
High Court can transfer the case inter se subordinate courts only, therefore, question
arises whether Anti-Terrorism Court is also subordinate to High Court. This has been
settled in case reported as "Muhammad Jawad Hamid v. Mian Muhammad Nawaz
Sharif and others (PLD 2018 Lahore 836), by a full Bench of this Court whereby
Anti-Terrorism Court has been declared as inferior/subordinate court to the High
Court".
10. As a squeal to the above discussion, it is concluded that the ordinary court, i.e.
Sessions Judge being bereft of supervisory authority over the Anti-Terrorism Court, cannot
unilaterally transfer the case thereto and has to follow the mechanism provided under the
law, as such, the impugned Order is not sustainable.
For the above reasons, Criminal Revision Petition No.108 of 2024 is partly allowed;
consequently, the impugned Order dated 04.10.2024 passed by learned Sessions Judge, Killa
Saifullah is hereby set-aside, and the applications filed by the petitioner and the Complainant
are deemed pending. After hearing the parties, the trial Court shall decide the applications on
merits based on observations made hereinabove by following the law.
JK/61/Bal. Case remanded.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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