MUHAMMAD YASIR vs THE STATE

ZUBDA-TUL-HUSSAIN, J.-- -On the complaint of one Ahmad Nawaz the case F.I.R. No, 286 of 2007 dated 12-6-2007 under section 302/34, P.P.C. Was registered at Police Station Baghdad-ulJadeed, Bahawalpur. The investigation of the case was still pending when an application under section 19(3) read with section 12 of the Anti-Terrorism Act, 1997 was filed by the father of the deceased before the learned Special Judge Anti-Terrorism Court seeking its indulgence for summoning the record of the said criminal case and its trial. This application was accepted through the order dated 19-7-2007, the vires whereof are impugned in the present writ petition.

2. The contention of the learned counsel for the petitioner is that the impugned order of the learned Special Judge Anti-Terrorism Court is tantamount to interference with the investigation as the local police has submitted a report under section 173, Cr.P.C. Without introducing any provision of the Anti-Terrorism Act, 1997. It is further contended that the order was passed at the back of the petitioner who was thus condemned unheard whereas the application as well as the impugned order both were outside the purview of the Anti-Terrorism Act, 1997.

3. It has specifically been argued that neither there was any element of terror in the alleged offence nor it created any fear or insecurity amongst the public-at-large so as to attract the provisions of sections 6 and 7 of the Anti-Terrorism Act, 1997.

4. The question whether the circumstances of the case give rise to any fear or insecurity amongst the public-at-large or the element of terror was made out of the facts, is a question of fact which of course cannot be dilated upon by this Court in the present proceedings and at the present stage.

5. The moot point in this case is whether in a case in which the proceedings have been taken by the local police under the ordinary law, can the Anti-Terrorism Court pass a direction to the police for inserting any provision of the Anti-Terrorism Act, 1997 in the case or can it otherwise call for the record and take cognizance of the case. There is no doubt that the father of the deceased had moved an application before the Anti-Terrorism Court under sections 19 and 12 of the Anti- Terrorism Act, 1997, yet that application by itself could neither invest the learned Anti-Terrorism Court with jurisdiction to show indulgence in the matter or to assume the jurisdiction in the garb of section 19(3) ibid. The reason therefor, is apparent on the face of the provisions of section 19(3) which may before proceeding further, be reproduced with benefit.

"Section 19. Procedure and powers of (Anti-Terrorism Court).

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(1-a)...........................................

(2)..................................

(3) The Anti-Terrorism Court may directly take cognizance of a case triable by such Court without the case being sent to it under section 190 of the Code."

6. It of course follows from the aforesaid provision that the learned Special Court under the Anti- Terrorism Act, 1997 can directly take the cognizance of a case triable by it without adhering to the provisions of section 190, Cr.P.C. Subsection (3) of section 19 is a conscious deviation from the ordinary procedure laid down by the Criminal Procedure Code for the cognizance of the cases.

There is no doubt that by virtue of section 190, Cr.P.C. In the first instance on a report under section 173, Cr.P.C. The concerned Magistrate takes necessary cognizance of the case and then, if it is not triable by him, forwards the same to the Court of competent jurisdiction but the said section 19 (3) of Anti-Terrorism Act, 1997 has provided an exception to this rule whereby the procedure provided under the Cr.P.0 is bypassed for the purpose of expediency.

7. The powers available to the Special Court under section 19(3) ibid, as observed by the Honourable Division Bench of this Court in Muhammad Azam's case PLD 2008 Lahore 63, do not provide jurisdiction to it for fishing out the case from different police stations and directing the agency to submit challan after incorporating the scheduled offence as the facts of the case disclose the commission of such offence.

8. The impugned order is, therefore, liable to be set-at-naught on this sole ground. All the same it goes without saying that the police is not the final authority to determine the jurisdiction of the Court where such case shall be triable. The police by forming its own opinion may submit the chalan/report under section 173, Cr.P.C. Before the F concerned Court but it shall then be for such Court to form an opinion that the material available on the record is or is not sufficient to attract the provisions of a scheduled offence. On the basis of such opinion or inference the Court where the challan is submitted is competent to pass an order for taking such measures whereby the challan may be sent to or submitted to the Court having jurisdiction in the matter.

9. For what has been discussed above, we are of the opinion that the learned Special Judge, Anti- Terrorism Court had no jurisdiction to pass a direction to the Investigating Officer to apply section 7 of the Anti-Terrorism Act, 1997 to the case in hand and submit the challan to it (Judge Anti- Terrorism Court). The writ petition is accordingly allowed, the impugned order dated 19-7-2007 of the Judge Anti-Terrorism Court Bahawalpur is set aside, and the Investigating Agency is directed to submit a report under section 173 Cr.P.C. Before the Court of ordinary jurisdiction who shall on the basis of the record proceed further or pass order thereon in accordance with law.