The Constitution of Pakistan, 1973 Developed by Zain Sheikh

Per Asif Saeed KhanKhosa J-

Constitution of Pakistan (1973), Arts. 199 & 12-

We have heard the learned counsel for the petitioner, the learned counsel for respondents nos. 1 and 3, the learned Advocate-General, Punjab and the learned Deputy Attorney-General appearing on behalf of the Federation of Pakistan and have perused the record of this case with their assistance.  We may observe that we have been pleasantly surprised by the fact that all the learned counsel appearing for all the parties to this case, including the learned counsel appearing for all the parties to this case, including the learned ed counsel for the private respondents, the learned Advocate-General, Punjab and the learned Deputy Attorney-General, have maintained before us in unison that after introduction of the Anti-Terrorism (Second Amendment) Act, 2004 (Act II of 2005) through Gazette Notification dated 11-1-2005 the case in hand has to be transferred to an Anti-Terrorism Court because now only such a Court constituted under the Anti-Terrorism Act, 1997 has the exclusive jurisdiction to try this case.  They have further submitted in total agreement that as regards the sentence, if any, to be passed against any accused person found guilty in this case by the learned Judge.  Anti-Terrorism Court, Faisalabad there is no dispute that such a sentence prescribed by the relevant law for the relevant offence at the time the said offence was committed.

We have found such unanimous stand taken by the parties to this case to be quite well-founded and legally correct.  According to subsection (1) of section 12 of the Anti-Terrorism Act, 1997 an offence mentioned in the Third Schedule appended with the Anti-Terrorism Act, 1997 can be tried only by an Anti-Terrorism Court constituted under the said Act and no other Court has any jurisdiction in that regard.  The Third Schedule appended with the Anti-Terrorism Act, 1997 not only mentions the offence of ‘terrorism’ but also mentions other offences which now, through the above mentioned amendment introduced on 11-1-2005, includes an offence of abduction or kidnapping for ransom. This unmistakably shows that Anti-Terrorism Court can try not only an offence of ‘terrorism’ as defined in section 6 of the Anti-Terrorism Act, 1997 but it can also try any other offence which is declared by the law to be exclusively triable by such a Court.  Through the above mentioned judgment dated 10-11-2003 passed in Criminal Revision no. 1047 of 2003 a Division Bench of this Court had held that the allegations being leveled in this case by the prosecution did not attract the definition of ‘terrorism’ contained in section 6 of the Anti-Terrorism Act, 1997 and an offence under section 365-A, P.P.C was not included in the Third Schedule and, thus, an Anti-Terrorism Court could not try this case but now through the above mentioned amendment in the law the offence involved in this case, i.e., an offence under section 365-A P.P.C. has expressly been made triable exclusively by an Anti-Terrorism Court.  IN view of this change in the relevant law the case in hand is now triable exclusively by an Anti-Terrorism Court, and, thus, the same has to be transferred from the Court of the learned Additional Sessions Judge, Jhang to the relevant Anti-terrorism Court which happens to be the Anti-Terrorism Court, Faisalabad.  The spirit of the provisions of subsection (3) of section 12 of the Anti-Terrorism Act, 1997 also manifests that in view of this changed legal position the relevant cases pending before the Courts of ordinary jurisdiction are now to be made over and transferred to Anti-Terrorism Courts.  We have found that the learned Judge, Anti-Terrorism Court, Faisalabad was not justified in dismissing the petitioner’s application seeking such a transfer of the case and that the view expressed by the learned Judge, Anti-Terrorism Court, Faisalabad in his impugned order dated 11-5-2005 to the effect that the Anti-Terrorism (Second Amendment) Act, 2004 (Act II of 2005) did not have retrospective effect was a view which was not legally correct.  A change of forum of trial by operation of law is ordinarily applicable to all pending cases and restrospectivity or otherwise of application of such law is not a relevant consideration in that regard.  A reference in this respect may be made by us to the cases Liaqat Pervaz Khan v. Government of the Punjab through Home Secretary and 2 others PLD 1992 Lah. 517 (FB) and Muhammad Mushtaq v. Muhammad Ashiq and others PLD 2002 SC 841.

Before parting with this judgment we may clarify that keeping in view the provisions of clause (1) of Article 12 of the Constitution of the Islamic Republic of Pakistan, 1973 as ell as of section 38 of the Anti-Terrorism Act, 1997 the learned Judge, Anti-Terrorism Court, Faisalabad shall see to it that in case of conviction of any accused person in the case in hand the punishment to be awarded to such convict shall not be greater than, or of a kind different from, the punishment prescribed by the law for the relevant offence at the time the offence was committed.  It may further be clarified that the learned Judge, Anti-Terrorism Court, Faisalabad shall proceed with the trial of this case from the stage at which it was pending immediately before transfer of this case by this Court through the present judgment and in this regard he shall be guided by the provisions of subsection (2) of section 28 f the Anti-Terrorism Act, 1997. [pp. 66, 68] A & B