MUHAMMAD REHAN Versus THE STATE

ORDER

1. This application has been filed by the applicant praying that the case pending against him before the Court of Special Judge constituted under Suppression of Terrorists Activities Act, 1975 be transferred to an ordinary Court for trial.

2. Briefly the facts relevant for the purposes of this application are that applicant is involved in a case registered at Police Station, Korangi as F.I.R. No.647 of 1994 under section 17(3), Offences Against Property (Enforcement of Hudood) Ordinance, 1979. The allegation against the present applicant is that a T.T. pistol was recovered from his possession when he was arrested. The police after usual investigation has submitted the charge-sheet before the abovesaid Special Court under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979.

3. An application was moved before the trial Court under section 526, Cr.P.C. as the alleged offence is not a scheduled offence. This application was rejected on the ground that allegedly 'a klashnikov was used in the commission of the offence, therefore, the same has become a scheduled offence.

4. We have heard Miss Mubeena Habibullah, Advocate for the applicant and Mr. Syed Amjad Ali Shah, A.A.-G. for the State.

5. The contention of the learned counsel for the applicant is that in the present case on the very face of it the alleged offence is not an offence included in the Schedule to the abovesaid Act, and therefore, the case cannot be tried by the Special Court. She has placed reliance on the case of Mian Munir Ahmed v. State 1995 SCMR 257 and the case of Muhammad Iqbal v. State 1992 MLD 287. As against this Mr. Shah has contended that plain reading of the F.I.R. would show that the offence alleged amounts to an offence of robbery, which is covered under section 392, P.P.C., and therefore, this offence being similar, the Special Court will have the jurisdiction in the present case.

6. We have given our anxious consideration to the arguments of the learned counsel. At the very outset, we may observe that the procedure for trial of the case is provided under the Suppression of Terrorist Activities (Special Courts) Act, 1975 (hereinafter referred to as "the Act"). It may further be observed that there is no provision available in the said Act for transfer of a case from one Court to another except for the provision mentioned in section 4, which provides that the Government may transfer a case from one Special Court to another Special Court. Section 5 of the Act is with regard to taking of cognizance by the Special Court under this section it is provided that an Officer/Incharge of a police station after completing the investigation may forward directly to the Special Court the report under section 173 within 14 days in respect of a case triable by said Court. It is also provided that a Special Court may directly take cognizance of a case triable by such Court. Nowhere in this Act it is provided as to whether any of these Courts have the powers to transfer the case from a Special Court to an ordinary Court or vice versa. The obvious reason is that the Special Courts constituted under the Act are so constituted by the Provincial Government and are not subordinate to the Sessions Court nor do they fall within the hierarchy of the Courts as provided in the Criminal Procedure Code. Same view was taken by a learned Single Judge of this Court in the abovestated case of Muhammad Iqbal v. The State 1992 MLD 287. In the other case of Mian Munir Ahmed v. The State the matter pertained to transfer, of a case under Labour laws. Section 561-A, Cr.P.C. is available to the High Court in case it is necessary to pass orders or to give effect to any order in this Court to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. Abuse of the process of the Court would not only mean abuse as it is understood in its ordinary dictionary meaning but also includes the misuse and colourable use of the powers or usurpation of a jurisdiction not vested in the Court.

7. In these circumstances considering the above acts we are certainly of the view that the charge-sheet under section 173, Cr.P.C. could not have been submitted to the Special Court as the alleged offence does not find place in the Schedule to the Act. However, the question would, therefore, be as to whether this Court would exercise jurisdiction to direct transfer of the case. As there is no special provision provided for making such order we would confine ourselves to make observation to the extent that Special Court in this case would not have jurisdiction to try the alleged offence. In such circumstances it would be for the Special Court to return the charge-sheet to the concerned Agency for submitting the same before a competent Court having jurisdiction in the matter.

8. With the above observations this Criminal Miscellaneous Application stands disposed of.

9. N.H.Q./M-2122/K Order accordingly.