MUHAMMAD JOBAL Versus CH. GHULAM SARWAR, JUDGE, SPECIAL COURT

M. MAHBOOB AHMAD, CJ.‑‑‑ This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 calls in question order, dated 25‑5‑1991 passed by the learned Judge, Special Court tinder the Suppression of Terrorist Activities Act of 1975, whereby case registered against the petitioner under section 302/307/148/149, P.P.C. vide F.I.R. No.320 of 1987.with Police Station Nankana Sahib, District Sheikhupura was transferred by the aforementioned Court from the Court of the Additional Sessions Judge, Sheikhupura.

2. The learned counsel for the petitioner has contended that the case was appropriately entrusted to the learned Additional Sessions Judge, Sheikhupura who had commenced with the trial as well and had recorded evidence partly when the Judge Special Court on the application of the complainant by the impugned order erroneously transferred the case to its own file and took cognizance of the case under section 5(3) of the Suppression of Terrorist Activities Act, 1975.

3. The next contention raised by the learned counsel for the petitioner was that the order had been passed by the learned Judge Special Court without notice to the petitioner and co‑accused and without affording them an opportunity of hearing.

4. The learned Additional Advocate‑General in reply contended that the offence having been added to the Schedule in 1988, the Judge Special Court could take cognizance of the case.

5. The learned Additional Advocate‑General was asked to show under what provision of law the Judge Special Court derives jurisdiction to transfer the case to its own file from a Court where it is already competently pending. He has not been able to point out any provision of law in the special Statute aforementioned.

6. Having given consideration, to the controversy, we are of the view that the impugned order has been passed under a misconception as there is neither any jurisdiction vested in the Judge Special Court to transfer the cases from the 1 ordinary Criminal Courts to its own file nor the Judge Special Court could take cognizance of the case in hand under section 5(3) of the Suppression of Terrorist Activities Act, 1975.

7. Apart altogether from the above position, the passing of the impugned order by the learned Judge Special Court without affording the petitioner an opportunity of hearing is. otherwise also against the principles of natural justice and the said order on this score alone is liable to be reversed.

8. Yet another aspect of the matter is that by viture of subsection (1) of section 4 of the Suppression of Terrorist Activities Act, 1975 there is a clear mandate that notwithstanding conferment of exclusive. jurisdiction on the Special Courts under the Suppression of Terrorist Activities Act of 1975, the f section shall not be construed to require the transfer to Special Court of any case which may be pending in any Court immediately before the constitution of the Special Court. That being so, the jurisdiction of the Special Court by virtue of the proviso stood excluded from trying the case in hand.

9. In view of the foregoing discussion, this petition is allowed and it is declared that order of the learned Judge Special Court under the Suppression of Terrorist Activities Act, 1975, dated 25‑5‑1991 is without lawful authority and is of no legal effect. Resultantly it is directed that the case shall be returned by the Judge Special Court under the Suppression of Terrorist Activities Act, 1975 to the learned Additional Sessions Judge; Sheikhupura for adjudication in accordance with law:

There will, however, be no order as to costs.

N.H.Q./M‑431/L Petition allowed,