Y.K. LEE Versus DIG SARGODHA

ORDER

MIAN MUHAMMAD NAJUM?-UZ-ZAMAN, J.--- Petitioner is involved in case F.I.R. No.14 of 2007 dated 20-1-2007 for the offences under sections 324/440/ 148/149, P.P.C. registered at Police Station Bhera, District Sargodha.

2. Learned Special Judge, Anti-Terrorism Court, Sargodha, on coming to know about the said case through newspaper, while exercising his jurisdiction under section 19(3) of Anti-Terrorism Act, 1997 read with section 190(c), Cr.P.C. A summoned the record of the case and after going through the file vide order dated 23-1-2007 directed the S.H.O. concerned to apply section 7 of the Anti-Terrorism Act in F.I.R., forthwith and then to proceed for further investigation strictly on merits. Relevant portion of the order reads as under:-

"In view of above I direct S.H.O. to apply section 7 of the Anti-Terrorism Act, 1997 in F.I.R. forthwith and then to proceed for further investigation strictly on merits without being influenced from any observation contained in this order. Record shall be produced again to show progress in investigation on 26-1-2007. Copy of the order be supplied to S.H.O. free of cost for reference."

3. Through the instant petition legality of the said order has been challenged on the grounds that ingredients of section 7 of the Anti-Terrorism Act are not attracted in the circumstances of the case and learned Special Judge while exercising his power under section 19(3) of the ibid Act has erroneously' directed the Investigating Officer to apply section 7 of the said Act.

4. Heard. File perused.

5. For deciding the matter, a glance at the relevant provisions of law i.e. subsection (3) of section 19 of the Anti-Terrorism Act, 1997 is necessary. The said subsection reads as under:

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

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(2) ???????????????????

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(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.

The bare perusal of said provision of Law reveals that Special Judge is competent to take cognizance in a matter falling within the ambit of Anti-Terrorism Act, 1997 directly but the said provision is absolutely silent qua the authority of the trial Court whereby it could direct the Agency to conduct the investigation on particular lines. If the Special Judge was of the opinion that circumstances of this case attract the provisions of section 7 of Anti-Terrorism Act, then he should have taken the cognizance and proceeded with the matter. Though the word cognizance has not been defined either in the Criminal Procedure Code or in the Anti-Terrorism Act, 1997 but the same has been interpreted by the Courts as a judicious application of mind to proceed further in the matter i.e. calling the accused, framing charge, summoning the evidence etc. In case titled Muhammad Nawaz Khan v. Noor Muhammad and others (PLD 1967 Lahore 176), it has been observed that Magistrate can be said to have taken cognizance of offence only when he decides to proceed against offender with a view to determine his guilt and the said stage does not arise unless police submits challan under section 173, Cr.P.C. Similarly in case titled Muhammad Haneef and another v. The State (1979 PCr.LJ 1078) (D.B), taking cognizance has been defined as conscious application of judicial mind by the Court to determine the guilt of the accused. Relevant portion of the judgment reads as under:--

"Therefore, keeping in view all these situations and the essential ingredients deliberated in the precedent cases, it can be said that in the context of criminal proceedings, a Magistrate or a Court can be deemed to take cognizance of a case when it C consciously applies its judicial mind to the facts placed before it and then decides to proceed with the matter in accordance with the Criminal Procedure Code with the ultimate object of determining the guilt of the offender."

The Courts are created/established for doing justice between the parties and not for the purpose of giving guidelines to the agency to collect the data for proving certain charges against the accused person. The impugned order to the extent of directing the Investigating Officer to apply section 7 of the ibid Act forthwith and then to proceed for further investigation strictly on merits, is against the spirit of criminal jurisprudence. The impugned order to that extent is neither justifiable nor sustainable. Accordingly, while allowing the instant petition, case stands remanded back to the Special Judge for fresh adjudication upon the matter with the observation that if the Court is satisfied that the provisions of section 7 of the ibid Act are attracted, the Court after taking cognizance of the matter, shall proceed further as required under the law and in that eventuality petitioner would be at liberty to move application under section 23 of the said Act seeking transfer of the case and the said application shall be decided on merits at the earliest. With this observation the instant petition is allowed and disposed of.

N.H.Q./Y-2/L ????????????????????????????????????????????????????????????????????????????????????? Case remanded.