MUHAMMAD TAHIR KHAN vs THE STATE
This criminal miscellaneous application was filed by a police officer seeking the quashment of proceedings initiated against him. The core legal question was whether a Judicial Magistrate possessed the jurisdiction to take cognizance of a case involving an offence under Section 365-A of the Pakistan Penal Code 1860, which is a scheduled offence under the Anti-Terrorism Act. The Court held that offences under Section 365-A are exclusively triable by an Anti-Terrorism Court. Consequently, the challan or report must be submitted to the Administrative Judge of the Anti-Terrorism Court, who is a sitting High Court Judge, rather than a Judicial Magistrate. The Court ruled that the Judicial Magistrate's order taking cognizance was without jurisdiction and set it aside. The key principle laid down is that for scheduled offences triable by Anti-Terrorism Courts, the procedural requirement mandates submission of the investigation report to the Administrative Judge of the Anti-Terrorism Court for disposal, and any cognizance taken by a Magistrate in such matters is void for lack of jurisdiction.
- Does a Judicial Magistrate have the jurisdiction to take cognizance of an offence under Section 365-A of the Pakistan Penal Code 1860?
- Which judicial forum has the exclusive authority to handle cases involving scheduled offences under the Anti-Terrorism Act?
- To whom must the investigation report be submitted for a scheduled offence triable by an Anti-Terrorism Court?
- Section 154, Code of Criminal Procedure 1898
- Section 392, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 365-A, Pakistan Penal Code 1860
- Section 395, Pakistan Penal Code 1860
- Section 393, Pakistan Penal Code 1860
ORDER
1. ' KH. NAVEED AHMED, J.---This Criminal Miscellaneous application for abashment has been filed by applicant Muhammad Tahir Khan, Sub-Inspector Police.
2. ' The brief facts of the prosecution case are that complainant Muhammad Ashraf son of Muhammad Ismail had lodged F.I.R. No,182 of 2007 on the basis of statement recorded under section 154, Cr.P.C. On 24-9-2007 at 2130 hours at Poliice Station Steel Town Karachi. The complainant had stated that he is living at A/1560, Gulshan-e-Hadeed, Karachi and is doing construction work. The complainant has stated that on 28-6-2007 a police mobile and private car came at his house at 11-30 a.m. They were 12/13 persons in plain clothes. They entered into the house and searched it. During search they took an amount of Rs,20,000 and has forcibly taken complainant's cousin with them. Finally he was found in CID Centre Bhoot Bungalow, Room No,29.
3. He has stated that police had demanded a sum of Rs,5,00,000 to release him. It is stated that his cousin was finally booked in case F.I.R. No,106 of 2007 under sections 392/34, P.P.C. By Police Station Saeedabad. Police had registered the case under sections 365-A, 395, 393, P.P.C. The police has investigated the case and found it false and had submitted their report in the Court of Judicial Magistrate, who has taken the cognizance and had issued non-bailable warrants against the accused persons and had sent the case to the Sessions Court Malir for trial.
4. ' I have heard Mr. Aamir Mansoob Qureshi, learned counsel for the applicant and have perused the record. No one was present on behalf of the State.
5. ' Offence under section 365-A is a Scheduled Offence and is exclusively triable by the Anti- Terrorism Court (ATC). Its challan or report is required to be submitted before the learned Administrative Judge/ATC who is always a sitting High Court Judge. The learned Administrative Judge registers the case and then transfers the same to any ATC Judge for disposal according to law. In case of A, B or C Class reports the learned Administrative Judge passes the appropriate orders.
6. ' In view of the above legal position, the impugned order of the Judicial Magistrate, dated 22-11- 2007 is without jurisdiction and is set aside. The Investigating Officer is directed to withdraw the papers from the Court of Judicial Magistrate/Sessions Judge and submit the same before the Administrative Judge ATC for disposal according to law. Criminal Miscellaneous Application No,26 of 2008 is allowed in the above terms.