BISHAR AHMED vs Syed SIKANDAR ALI SHAH alias SHER and 3 others
This criminal transfer application challenges an order passed by the Special Judge Anti-Terrorism Court, Khairpur, whereby a criminal case was transferred to the Court of Sessions under section 23 of the Anti-Terrorism Act, 1997, while deciding a bail application. The core legal question is whether a case can be transferred from an Anti-Terrorism Court to an ordinary court without affording an opportunity of hearing to the complainant and without issuing notice on the bail application. The Sindh High Court held that the impugned order violated the fundamental principle of natural justice, audi alteram partem, by condemning the complainant unheard and failing to issue notice. The court set aside the impugned order and directed that the case file be returned to the Anti-Terrorism Court, while noting that the Special Judge remains competent to pass a fresh order on jurisdiction after hearing the parties in accordance with the law. The key principle laid down is that no judicial order affecting parties, including the transfer of a case under the Anti-Terrorism Act, can be passed without providing a proper opportunity of hearing.
- Can an Anti-Terrorism Court transfer a case to an ordinary court while deciding a bail application without issuing notice to the complainant?
- Is it mandatory to provide an opportunity of hearing to the complainant before transferring a case under section 23 of the Anti-Terrorism Act 1997?
- What is the effect of violating the principle of audi alteram partem in judicial orders passed by a Special Judge?
- Section 23, Anti-Terrorism Act 1997
- Section 497, Code of Criminal Procedure 1898
- Section 6, Anti-Terrorism Act 1997
- Section 7, Anti-Terrorism Act 1997
ORDER
' AFTAB AHMED GORAR, J.---Through this criminal transfer application, applicant has impugned order dated 22-10-2011, whereby learned Special Judge, while deciding bail application, transferred Special Case No,116 of 2008 (Re. State v. Sikandar Ali Shah and others) from the Court of Anti- Terrorism Khairpur to Sessions Judge Khairpur under section 23 of A.T.A.
1997.
2. Learned counsel for applicant/complainant inter alia contends that learned Judge of Anti- Terrorism Khairpur, has passed impugned order while hearing a bail application, without affording chance of being heard to the complainant side as no notice of bail application was issued to the complainant party. He further contends that it is a case of scheduled offence and cannot be transferred to an ordinary Court after framing of charge against the accused persons.
3. Mr. Malak, learned counsel for respondent/accused supported the impugned order and submitted that order passed by learned Judge Anti-Terrorism Court, is in accordance with law and needs no interference.
4. Learned A.P.G opposed the impugned order and submitted that impugned order has been passed in haste, against the law. He further contended that learned Judge has passed the order in a bail application without issuing notice to other side. He further contended that no proper application was filed for transfer of the case.
5. Heard learned counsel for the respective parties and perused record.
6. It is manifest that learned Special Judge while hearing bail application under section 497, Cr.P.C, exercised the powers under section 23 of A.T.A. 1997, and transferred the Special Case No,116 of 2008 (Re-State v. Sikander Ali Shah and others) to the. Sessions Court. It is pertinent that learned Judge while passing such order, deprived the complainant from the right of hearing, even on bail application notice was not issued to the complainant. It is settled principle of law that a case cannot be transferred without providing opportunity of hearing to other side, thus suffice it to say that learned Special Judge while passing impugned order has negated the basic principle of law that one cannot be condemned unheard (Audi alterm partem), therefore, under any way, such exercise taken by Special Judge cannot be encouraged, hence we are of the considered view that impugned order is not maintainable.
7. Keeping in view the above given circumstances and legal position, impugned order dated 22-10- 2011, passed by Special Judge Anti-terrorism Khairpur, is set aside. Concerned Sessions Court is directed to return back the file of above-mentioned case, and it will be deemed pending in its original position before Anti-Terrorism Court. However Special Judge is competent to pass fresh order on the point of jurisdiction on its own or application filed by any party, after hearing the parties under section 23 of A.T.A. 1997, if trial Court is of the view that the case is not falling within the ambit of sections 6 and 7 of A.T.A., needless to say, if any, order is passed by Sessions Court on bail application, will not be affected by this order.