Hafiz ALI DUR Versus QALANDAR BUX

ORDER

1. AHMAD ALI M. SHAIKH, J.--- Through this application the applicant/ complainant seeks transfer of Special Case No. 83 of 2009 Re: State v. Qalandar Bux and others from the Court of Judge Anti-Terrorism Court Khairpur to any other Court of competent jurisdiction.

2. During the course of arguments and after having gone through section 28 of Anti-Terrorism Act, 1997, a question arose whether this Court can exercise such powers or only the honourable Chief Justice is competent to transfer the case from one ATC Court to other ATC Court, therefore vide order dated 25-2-2010 Mr. Qazi Khalid Ali was appointed as Amicus Curiae to assist us on the point "Whether this Court can transfer the case from one ATC Court to other or only the Chief Justice is competent/empowered to do the same", and whether such power is to be exercised in Chamber or Court.

3. Per learned Amicus Curiae "section 28(1) of the Anti-Terrorism Act, 1997 has been amended through Ordinance XIII of 1999, whereby the words "High Court" have been substituted with the words "Chief Justice of High Court concerned". Therefore only the honourable Chief Justice of the concerned High Court is competent to pass any order in respect of the transfer of case from one ATC Court to other. The language of section 28(1) is very clear and a complete departure has been made from previous wording i.e. "High Court" substituted with "Chief Justice": Hence it has overriding effect being a special statute. He further contended that in section 526, Cr.P.C. words "High Court" are used, whereas in section, 28(1) of Anti-Terrorism Act, 1997; the words "Chief Justice of High Court concerned" are used. He has lastly contended that from a plain reading of section 28(1) of Anti-Terrorism Act, 1997, the honourable Chief Justice is empowered solely to decide the transfer applications etc. But such powers must be exercised judicially.

4. Learned counsel for the respondents agreed with the contentions raised by the Amicus Curiae. He further contended that the honourable Chief Justice is bound by the language of section 28(1) of the Act viz, if he considers it expeditious or to do in the interest of justice or whether the convenience or safety of the witness or safety of the accused so requires such powers can be exercised by the honourable Chief Justice.

5. Learned counsel for the applicant has also agreed with the contentions raised by the learned Amicus Curiae as well as Mr. Ameer Haider learned counsel for the respondents.

6. Heard learned counsel for the parties and Amicus Curiae and perused the relevant sections of Anti-Terrorism Act, 1997.

7. Upon a perusal of the Act, it appears that there are two sections with regard to the transfer of cases from one ATC Court to other i.e. section 13(4) and section 28(1). Section 13(4) empowers an Administrative Judge to exercise such powers, while acting suo motu or on the application of any party, at any stage of the proceedings for sufficient cause including as mentioned in subsection (1) of section 28 of the Act. But from a plain reading of subsection (4) of section 13 of the Act, we are clear in our mind that the Administrative Judge can exercise such powers, for that particular area under his administrative jurisdiction but, not beyond that. However from a bare reading of section 28(1) of the Act, it is, crystal clear that the honourable Chief Justice is competent to exercise such powers throughout the entire province. Even from the language implied in aforesaid section, there is no ambiguity in this regard. By substituting the words "High Court" with a "Chief Justice" the intention of the law makers is crystal clear. Hence we are of the considered view that only the honourable Chief Justice has the sole power to decide the transfer of cases pertaining to cases pending in any Anti-Terrorism Court of the concerned province. If the transfer application is by complainant or accused, same can be entertained in Court, but in case any reference, in this regard is made by any Presiding Officer of Anti-Terrorism Court in that eventuality such orders will be passed in Chamber.

8. Before parting with the order we would like to appreciate the efforts and able assistance rendered by Mr. Qazi Khalid Ali learned Amicus Curiae.

9. These are the reasons in support of our short order dated 3-3-2010.

10. H.B.T./A-134/K Order accordingly.