Raheem Khan Versus Special Judge Court of Anti-Terrorism Sibi

Shaukat Ali Rakhshani, J .--- The instant constitutional petition filed by the petitioner under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 ( Constitution ), carries the following relief;

It is therefore prayed that in view of above submissions the impugned letter dated 13.06.2025 issued by respondent No.2 on the direction of respondent No.1 may kindly be struck down while declaring the same as illegal, unlawful and without lawful authority having no sanctity in the eye of law, in the interest of justice.

2.Relevant facts of the instant petition are that the petitioner-complainant got lodged an FIR bearing No.08 of 2025 with Levies Station, Khajjak District Sibi, averring therein that on 03.04.2025 at about 3:00 pm, when, he along with one Hazoor Bakhsh, his cousin Aftab Ahmed and Abdul Sattar reached near Khajjak link road, accused persons namely Irshad Ahmed alias Arshoo, Ghulam Muhammad alias Gamay, Rauf Sarwar along with two unknown culprits made indiscriminate firing, due to which Aftab Ahmed and Abdul Sattar succumbed to the injuries. It is further case of the petitioner that after completion of the investigation, challan was submitted before the court of Special Judge Anti-Terrorism Court, Sibi ( Trial Court ) by the special public prosecutor ATC, Court Sibi (respondent No.2), however vide impugned letter dated 13.06.2025 respondent No.2 returned the said challan to the investigation officer of the instant case for submission of the same before the Court, having ordinary jurisdiction on the verbal directions of respondent No.1, hence this petition.

3.In response to the notices issued by this Court, respondent No. 2 filed parawise comments, refuting the allegations so levelled by the petitioner on factual and legal premises.

4.Learned counsel for the petitioner inter alia contended that transfer of the instant case to the court of Sessions Judge, Sibi is without any justifiable reason, ignoring the fact that two innocent souls were done to death at the hands of the accused persons and their companions, which had the effect of striking terror and creating sense of fear, thus transferring the challan of the case from Anti-Terrorism Court to the Court of Sessions Judge is illegal and against the law. To substantiate his contentions, he relied upon the judgment reported as PLJ 2008 Lahore 271.

Conversely, learned Addl; PG strenuously opposed the arguments so advanced by the learned counsel for the petitioner and urged that the case does not fall within the ambit of Anti-Terrorism Act as the offence alleged has no nexus with the Act and as such, whole heartedly supported the transfer of the instant case to the Sessions Court.

5.We have heard Mr. Hasnain Iqbal Minhas, learned counsel for the petitioner and Mr. Jameel Akhtar Gajjani, Addl; PG and have gone through the record of the case in minute particulars.

6.It is now firmly settled by the Supreme Court of Pakistan that mere incorporation of section 7 of the Act of 1997 in the FIR or challan does not automatically confer jurisdiction upon the Anti-Terrorism Court, unless the factual foundation of the case satisfies the ingredients of Terrorism as defined under section 6 of the Act of 1997. The apex court, in the case titled as Bashir Ahmed v. Muhammad Siddique (PLD 2009 SC 11), categorically held that in determining whether an offence constitutes terrorism, the Court is required to examine the motive, intent, object, design and purpose behind the occurrence and to create fear, panic or insecurity in society at large.

7.Without touching the merits and demerits of the case, we are of the considered view that it is prerogative and function of the Trial Court to the decide the question of jurisdiction and applicability of offence under section 7 of the Act of 1997, which has not been attended to and dealt with rather, contrarily, respondent No.2 on its own has returned the challan of the case to the investigation officer without any legal authority. In this regard, we are fortified with the view expounded in the case of Fayyaz Ahmed and another v. The State and others (2008 PCr.LJ 805). The relevant para No.06 of Fayyaz Ahmed s case is facsimile hereunder;

8.Admittedly, it is not the job of special public prosecutor to return the challan of a case forwarded to the Anti-Terrorism Court to the Court, having ordinary jurisdiction as it is always the responsibility of the Trial Court to look into the matter and in case, it finds that the case squares within the ambit of Act of 1997, it should proceed with trial, otherwise return it to the special public prosecutor to file it before the Competent Court of jurisdiction by passing a speaking order thereon, but in the instant case, no such order appears to have been passed, thus, the letter impugned herein is unsustainable, requiring interference by this Court.

9.Corollary, the instant petition is allowed and consequent thereto, the impugned letter dated 13.06.2025 issued by respondent No.2 is declared null and void, having no legal effect, with the direction to respondent No.2 to place the case before the Special Judge Anti-Terrorism Court, Sibi (respondent No.1), who shall examine the case file, and while drawing reasons either take cognizance or transmit the case file for want of jurisdiction to the court, having ordinary jurisdiction accordingly.

MH/8/Bal. Petition allowed.