MUHAMMAD BILAL Versus GOVERNMENT OF PAKISTAN

ORDER

MUHAMMAD NAWAZ ABBASI, J: -- This order shall dispose of Writ Petitions Nos.9871 of 1993, 9872 of 1993 and 9873 of 1993 involving the identical question.

2. The petitioners in the above-referred writ petitions have challenged the order of transfer of criminal cases of similar nature bearing F.I.Rs. Nos.243 dated 15-7-1992, 260, dated 29-7-1992 and 300, dated 29-8-1992 through separate orders, dated 13-5-1993 passed by Federal Government, Ministry of Law, Justice and Parliamentary Affairs, from the Court of Magistrate Section 30, Jhang to the Special Court for Speedy Trials, Lahore presided over by Mr. Justice Ghulam Sarwar, Judge, Lahore High Court, Lahore.

3. The allegations against the petitioners in all the three cases are of setting at fire, the copies of Holy Quran in Masjid Siddique Akbar situated in Mohallah Gurha Jhang at different occasions. Two cases were registered against unknown culprits whereas one Latif was nominated as accused m F.I.R. No.3W, dated 29-8-1992, subject-matter of Writ Petition No.9872 of 1993. According to the investigation the petitioners having been found involved in all the cases were challan to face the trial.

4. It is stated that earlier the case F.I.R. No.243 dated 15-7-1992 pending trial before Judicial Magistrate, Jhang was transferred to the Special Court, constituted under Suppression of Terrorist Activities Act, 1975, Faisalabad, but in view of an observation made by this Court in the Constitutional Petition No.10302 of 1992 filed by the petitioner questioning the jurisdiction of the said Court to try the case, the Special Court sustaining the objection sent the case back to the Court of Magistrate Section 30, Jhang but subsequently the Federal Government vide Notification dated 13-5-1993, transferred the said case alongwith two connected cases through separate orders of even date.

5. It has been contended by the learned counsel for the petitioners that the case if at all was required to be transferred to a Special Court for Speedy Trials constituted under Special Courts for Speedy Trials Act, 1992, a Notification under section 5(2) and not under section 5(1) of the ibid Act was to be issued and argued that impugned Notification was issued in a mechanical manner without application of mind. He next contended that the offence allegedly committed by the petitioners does not qaualify the test of the "offence" as defined in section 2(c) of the Act to be tried by the Special Court, and the impugned Notification having not been issued in the public interest is bound to be struck down.

6. It shall be beneficial to reproduce Article 212-B(1) of the Constitution and the relevant provisions of Special Court for Speedy Trials Act, 1992.

Section 212 B(1) Establishment of Special Courts for trial of heinous offences.

In order to ensure speedy trial of cases of persons accused of such of the heinous offences specified by taw as are referred to them by the Federal Government, or an authority or person authorised by it, in view of their being gruesome, brutal and sensational in character or shocking to public morality, the Federal Government may by law constitute as many Special Courts as it may consider necessary.

Section 2(c) of Act IX of 1992

"Offence" means an offence specified in the Schedule, or an offence punishable under any law for the time being in force, which in the opinion of the Government is gruesome, brutal and sensational in character or shocking to public morality or has led to public outrage or created panic or an atmosphere of fear or anxiety amongst the public or a section thereof or which because of increase in its incidence needs to be tried most speedily;

Section 5(1) If the Government is of the opinion that a case relating to any offence which has been registered should be tried and decided speedily, it may order that such case shall be tried by a Special Court.

(2) If the Government L% of the opinion that a case pending before any Court should be tried and decided speedily, it may, by order in writing, transfer the same for trial to a Special Court.

7. An examination of the Article 212-B(1) of the Constitution reveals that an offence to be tried by the Special Court for Speedy Trials constituted under Special Courts for Speedy Trials Act, 1992 must be gruesome, brutal and sensational in character or shocking to public morality. Section 2(c) of Special Courts for Speedy Trials Act, 1992 defines the offences specified in the Schedule for the time being in force which are gruesome, brutal and sensational in character or shocking to public morality or have led to public outrage or create panic an atmosphere of fear among the public or a section thereof.

Keeping in view the definition of the offence given in the ibid Act, the question for determination would be as to whether the case in question was no liable to be transferred to the Special Court for Speedy Trials and what shall be the effect of issuance of a Notification under section 5(1) instead of 5(2) o the said Act.

8. It is pertinent to note that a case in which challan is yet to be submitted or it has been submitted but case had not been entrusted to any Court for trial, the necessary order for its transfer is to be issued under section 5(1) of the Act in question but if a matter is pending trial before another Court, such order or Notification is issued under section 5(2) of the said Act. Admittedly, case was pending before Magistrate Section 30 at Jhang when it was transferred to the Special Court but it appears that inadvertently section 5(1) instead of 5(2) of the Act was mentioned in the Notification by way of a clerical mistake, otherwise the case qualifying the test of an offence falling within the definition of section 2(c) of the said Act, evidently proves that notification in question was issued with conscious application of mind.

9. From the reading of section 2(c) together with section 5 of the Act, it is obvious that if a matter satisfies the test given in the definition of offence, the power to transfer case in the public interest is not questionable. The nature of offence and the feeling of public would reveal that an offence speed in the Schedule to the Act, if conforms to the necessary qualification of an offence as defined in the relevant provisions of law, it can be transferred to a Special Court for Speedy Trials at a proper stage with no bar or restriction except given in the Act itself. The impugned order with the appreciation of all necessary guidelines elemental to the public interest was issued. The mere mention of wrong section by mistake shall not render the order illegal. The offence under section 436, P.P.C. is a scheduled offence and further setting at fire the copies of Holy Quran is an act highly sensational in character and shocking to the public morality creating an atmosphere of anxiety among the Muslims causing injury to their religious feelings. The speedy trial of the cases of the nature shall be in the public interest, and therefore, the impugned orders of the transfer of these cases from the Court of Judicial Magistrate at Jhang to Special Court for Speedy Trials at Lahore do not suffer from any legal infirmity to be interfered with. These petitions are accordingly dismissed.

N.H.Q./M-1168/L Writ petitions dismissed