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Petitioner: MUHAMMAD AFZAL VS Respondent: STATE
1999 Y L R 1279
1999 Y L R 1279
[Lahore]
Before Rashid Aziz Khan, C. J. and Tassaduq Hussain Jilani, J
MUHAMMAD AFZAL‑‑‑Petitioner
versus
THE STATE‑‑‑Respondent
Criminal Miscellaneous No.260‑T of 1997, decided on 23rd December, 1998.
Suppression of Terrorist Activities (Special Courts) Act (XV of 1975)‑‑‑
‑‑‑‑S. 4‑A‑‑‑Criminal Procedure Code (V of 1898), Ss. 5(2), 526 & 561‑A‑‑‑Constitution of Pakistan (1973), Art. 203‑‑‑Penal Code (XLV of 1860), S. 302/324/148/149/109‑‑ Transfer of case‑‑‑Powers of High Court ‑‑ W2ere two or more Special Courts had jurisdiction, wholly pr partly in same territorial limits. High Court was empowered under S. 4‑A, Suppression of Terrorist Activities (Special Courts) Act, 1975 to transfer any case from one Special Court to another in interest of justice or for convenience of parties or of witnesses‑‑ Enabling provision of S. 4‑A of the Act would not have effect of curtailing powers of High Court to transfer case as provided under S. 526, Cr. P. C. ‑‑‑Powers of High Court under Criminal Procedure Code to transfer a case from one Court to another having not been specifically excluded under S. 4‑A of Suppression of Terrorist Activities (Special Courts) Act, 1975, same would remain intact‑‑‑Even otherwise High Court had powers under Art. 203, Constitution of Pakistan (1973) as also under S. 561‑A, Cr. P. C. to pass an order to promote ends of justice.
M.A. Zafar for Petitioner.
Mian Jamil Akhtar for the Complainant.
Miss Yasmeen Saigol, A.. A.‑G. for the State.
Date of hearing 23rd December, 1998
JUDGMENT
TASSADUQ HUSSAIN JILANI, J.‑‑ Through this Transfer Application, transfer of the trial in case F.I.R. No. 115, dated 18‑9‑1995 under section 302/324/ 148/149 read with section 109, P.P.C. registered with Police Station, Shah Pur Saddar, District Sargodha pending before Special Court constituted under the Suppression of Terrorist Activities Act, 1975, Sargodha to some other Court is sought on the ground that the deceased in this case was a practicing Advocate and that on that account, petitioner- accused has not been able to get an Advocate of his choice and the case even otherwise, got undue publicity because of which a fair trial is not expected.
2. Earlier a learned Judge of this Court transferred the case vide Criminal Miscellaneous No. 169‑T of 1996 but the transferee Court i.e. learned Additional Sessions Judge, Chiniot sent back the case to the Special Court Sargodha since .222 rifles had been used during the occurrence and the same were automatic weapons and according to learned Additional Sessions Judge, Chiniot, the offence alleged was a scheduled offence and not triable by him.
3. Learned counsel for the complainant, has referred to section 4‑A of the Suppression of Terrorist Activities Act, 1975 to contend that this Court can only transfer a case within the same Sessions Division.
4. Heard.
5. Section 4‑A of the Suppression of Terrorist Activities Act, 1975 to which reference has been made by learned counsel for the complainant ratters to a situation where two or more special Courts have jurisdiction, "wholly or partly in the same territorial limits," the High Court has been empowered to transfer any case from one Special Court to another in the interest of justice or for the convenience of the parties or of witnesses. This is an enabling provision empowering the High Court to transfer case in a situation, specified in the afore‑referred provision but this does not have the effect of curtailing the powers of this Court grantee under section 526, Cr.P.C. Section 5(2), Cr.P.C. mandates that all criminal cases shall be tried and dealt with in accordance with the Criminal Procedure Code but, "subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying of otherwise dealing with such offences." Since the powers of the High Court under the Criminal Procedure Code to transfer a case from one Court to another have not been specifically excluded under section 4‑A of the Suppression of Terrorist Activities Act, 1975, the same shall remain intact. Even otherwise, this Court has powers under Article 203 of the Constitution as also under section 561‑A, Cr.P.C. to pass an order to promote the ends of justice.
6. For what has been discussed above, this Application is allowed and it is directed that the aforereferred case shall stand transferred to the Court of District and Sessions Judge, Mianwali who shall try the same himself.
Revision dismissed.
V.B.T./M‑1084/L