2019 M L D 328

[Lahore (Bahawalpur Bench)]

Before Jawad Hassan and Asjad Javaid Ghural, JJ

UMAR HAMEED and others---Petitioners

Versus

PRESIDING OFFICER and another---Respondents

Writ Petition No.7195 of 2018, decided on 27th August, 2018.

Anti-Terrorism Act (XXVII of 1997)---

----Ss. 7 & 23--- Penal Code (XLV of 1860), Ss. 382, 506-B, 427, 148 & 149---Theft after
preparation made for causing death, hurt, or restraint in order to the committing of the thef t,
criminal intimidation, mischief causing damage to the amount of fifty rupees, rioting armed
with deadly weapons, unlawful assembly, act of terrorism---Request for deletion of offence
under S.7 of the Anti-Terrorism Act, 1997 at remand stage was turned down by the Judge Anti-
Terrorism Court and petition for transfer of case from Anti-Terrorism Court to an ordinary
criminal court was dismissed---Petitioners contended that from bare perusal of the crime report
and the investigation conducted so far, no element of causing intimidation, awe, fear or
insecurity in the public or society or the mens rea and actus reus as specified in S.6 of the Anti -
Terrorism Act, 1997 was attracted in the present case; investigation was still under -way and
the challan had not yet been submitted before the Trial Court---Trial Court had passed the
impugned orders at premature stage and the same were not sustainable---Validity---Record
showed that the accused-petitioners along with their five co-accused were implicated in the
present case through supplementary statement---Investigating Officer, after arresting the
accused-petitioners, made application before the trial court seeking their physical remand for
fifteen days---Trial Court while granting physical remand had given specific observations that
offence under S.7 of the Act was attracted to the facts and circumstances of the case ---Later
on, accused-petitioners were sent to judicial lockup by the Trial Court---On the same day,
application, submitted by the accused-petitioners to transfer the case to the court of ordinary
jurisdiction was dismissed by the Trial Court---Admittedly, investigation process was
underway and complete or incomplete report under S.173, Cr.P.C. had not yet been submitted
before the Trial Court---Trial Court had expressed his view while granting physical remand of
the accused under S.167, Cr.P.C., which was totally against the law causing prejudice to the
case of either side and also amounting to hamper the investigation process ---Accused-
petitioners made application under S. 23 of the Act, before taking cognizance of the matter,
which had been decided by the Trial Court without taking into consideration that it was
premature---Trial Court was neither authorized to express such view at the stage of physical
remand nor to decide the application seeking transfer of case to the court of ordinary
jurisdiction before taking cognizance of the matter---Constitutional petition was allowed by
setting aside impugned orders with the observation that the accused-petitioners could approach
the Trial Court to seek the selfsame relief at appropriate stage.

Ch. Riaz Ahmad and Sardar Zafar Iqbal Tareen for Petitioners

Ch. Saeed Ahmed, A.A.G. for the State.

Ch. Manzoor Ahmed Warraich for Respondents.

ORDER

Through this constitutional petition under Article 199 of the Constitution of Islamic
Republic of Pakistan, 1973, petitioners Umar Hameed, Asad Aslam and Salman have
challenged the legality of orders dated 28.07.2018 and 11.08.2018 passed by the learned Duty
Judge Anti-Terrorism Court, Bahawalpur Division, Bahawalpur whereby their request for
deletion of offence under Section 7 of the Anti-Terrorism Act, 1997 at remand-stage was
turned down and thereafter their application under Section 23 of the Act ibid for transfer of
case FIR No.341 dated 25.07.2018, in respect of offences under Sections 382, 506-B, 427, 148
and 149, P.P.C. and Section 7 of the Anti-Terrorism Act, 1997, registered at Police Station
City A-Division Rahimyarkhan to the Court of ordinary jurisdiction was dismissed.

2. Learned counsel for the petitioners submits that from bare perusal of the crime report and
the investigation conducted so far, no element of causing intimidation, awe, fear or insecurity
in the public or society or the mens rea and actus reus as specified in Section 6 of the Act ibid,
is attracted in the case in hand; that the investigation process is still under-way and the challan
has not yet been submitted before the learned trial court; that offence under Section 7 of the
Act ibid has been deleted to the extent of nominated co-accused namely Muhammad Ismaeel
and Muhammad Waqas vide order dated 31.07.2018; that the learned Court below has passed
both the impugned orders at pre-mature stage beyond jurisdiction and the same are not
sustainable in the eyes of law, which otherwise amounts to hamper the investigation process.

3. Conversely, learned counsel for the respondent No.3 defends the impugned orders while
submitting that the petitioners along with their co-accused have committed an offence, which
falls under the ambit of Section 6(2)(m)(n) of the Act ibid.

4. Learned Law Officer has half-heartedly opposed this petition.

5. We have heard learned counsel for the petitioners, learned counsel for respondent No.3,
learned Assistant Attorney General appearing for the State and have perused the available
record with their able assistance.

6. After taking cognizance of the matter, the Anti-Terrorism Court is empowered under
Section 23 of Anti- Terrorism Act, 1997 to transfer the case for trial of such offence to the
Court of ordinary jurisdiction, if it does not come within the ambit of scheduled offences. For
ready reference, Section 23 of Anti- Terrorism Act, 1997 is reproduced as under:-
"Power to transfer cases to regular Courts.---Where, after taking cognizance of the
offence, Anti-Terrorism Court is of opinion that the offence is not a scheduled offence,
it shall notwithstanding that it has no jurisdiction to try such offence, transfer the case
for trial of such offence to any Court having jurisdiction under the Code, and the Court
to which the case is transferred may proceed with the trial of the offence as if it had
taken cognizance of the offence."

7. The aforementioned provisions of law clearly and without any ambiguity provide
that the Anti-Terrorism Court is empowered to transfer the case into the Court of
ordinary jurisdiction only when it has taken cognizance of the matter. The petitioners
along with their five co-accused were implicated in this case through supplementary
statement, they were arrested in this case on 27.07.2018 and the investigating officer made
an application before the learned trial court seeking their physical remand for 15-days
wherein, vide impugned order dated 28.07.2018, the learned court had given a specific
observation that offence under Section 7 of the Act ibid attracts to the facts and
circumstances of the case and granted the physical remand. Thereafter, they were sent to
judicial lockup vide order dated 11.08.2018 by the said court. On the same day i.e.
11.08.2018, application submitted by the petitioners under Section 23 of the Act ibid to
transfer the case to the court of ordinary jurisdiction was dismissed by the said court.
Admittedly, the investigation process is underway and complete or incomplete report
under Section 173, Cr.P.C. has not yet been submitted before the learned trial court.
Learned Court below has expressed his view while granting physical remand of the
accused under Section 167, Cr.P.C., which is totally against the law causing prejudice to
the case of either side and also amounts to hamper the investigation process. The
petitioners made application under Section 23 of the Act ibid before the same learned
court before taking cognizance of the matter, which has been decided by the said court
without taking into consideration that it was premature. Learned Court below was
neither authorized to express such view at the stage of physical remand nor decide the
aforesaid application seeking transfer of case to the court of ordinary jurisdiction before
taking cognizance of the matter.

8. In view of what has been discussed above, the petition in hand is allowed, both the
impugned orders are set aside with the observation that the petitioners may approach the
learned trial court seeking the selfsame relief at appropriate stage, if so advised. It is made
clear that such application, if filed, shall be decided on its own merits strictly in accordance
with law.

JK/U-7/L Petition allowed.