BASHIR AHMAD Versus FEDERAL GOVERNMENT OF PAKISTAN

SH. IJAZ NISAR, J. -- The relevant facts are that a case under sections 148, 302/109/149, P.P.C. stands registered against Bashir Ahmad petitioner and five others for the murders of Muhammad Asif and Muhammad Siddique with fire-arms.

2. The motive for the offence was that Muhammad Rafique and Akbar Ali co-accused of the petitioner, used to tease daughter of Muhammad Siddique deceased. On 28-3-1993, Muhammad Siddique and Muhammad Asif deceased forbade them from doing so which led to an altercation between them subsequent to which both of them were murdered.

3. In exercise of the powers conferred by subsection (2) of section 5 of the Special Courts for Speedy Trials Act, 1992 (IX of 1992), the Federal Government withdrew the case from the Court of Sessions Judge, Toba Tek Singh and transferred it to Special Court for Speedy Trials (Mr. Justice (Rtd.) Gul Baz Khan, Lahore).

Feeling aggrieved, Bashir Ahmad one of the accused has filed this Constitutional petition on the grounds that transfer of his case from the ordinary Court to the Special Court for Speedy Trials is against the provisions of the Constitution and further that it was not mentioned in the impugned order that trial of the case by the Special Court for Speedy Trials was in the public interest. Furthermore, the impugned order was prejudicial to the interest of the petitioner and his co-accused. In support of the above contentions, reliance has been placed on Muhammad Yaqub and another v. The State 1992 S C M R 177.

Mr. Abdus Sattar Najam, learned Advocate-General, Punjab has contested the petition and has referred to Liaqat Ali and 11 others v. The State 1992 S C M R 372. In the said case, it was observed by the Supreme Appellate Court that "subsection (2) of section S of Special Courts for Speedy Trials Ordinance (XXV of 1991) does not envisage a trial within a trial for the purpose of determining the question whether transfer of a case to a Special Court would be in the public interest and it was for the Federal Government to examine subjectively on the basis of material placed before it for forming an opinion on the said question and once a notification is issued by the Federal Government, it is to be presumed that the opinion was formed by the Federal Government on the basis of some material placed before it, unless proved by the person making a contrary averment". It was further observed that the "question whether transfer was in public interest or not was a matter to be decided by the Federal Government"

4. In the present case, two persons were done to death with fire-arms and the Federal Government had transferred the case from the Sessions Court to the Special Court for Speedy Trials considering the offence to be gruesome, brutal and sensational in character. Since the Special Courts for Speedy Trials Act, 1992 (IX of 1992) conferred power on the Federal Government to transfer a case pending before any Court to a Special Court which in its opinion was gruesome, brutal and sensational in character, no exception can be taken to the exercise of the said power by the Federal Government. No substance is found in the contention of the petitioner that he has been prejudiced by the transfer of the case from the ordinary Court to the Special Court for Speedy Trials. The Speedy Courts having been set up in accordance with law under Article 212-B(1) of the Constitution cannot be declared to be unconstitutional.

S. In view of the above discussion, the Federal Government was legally competent to transfer the case in hand to the Special Court for Speedy Trials and in consequence, the writ petition is dismissed.

Record be sent back to the Special Court for proceedings with the case in accordance with law.

N.H.O./B-103/L Petition dismissed.