Find a Lawyer

Criminal Miscellaneous No.263 of 2014, decided on 5th November, 2014.

----Ss. 526 & 561-A---Anti-Terrorism Act (XXVII of 1997), Ss.25, 31 & 32---Transfer of case to other court---Quashing of proceedings, petition for---Petitioner fugitive from law---Effect---Contention of petitioner was that since Trial Judge was in a hurry in holding the trial against the petitioner by violating the mandatory provisions of law, petitioner, therefore, lacked confidence in the Trial Judge---Petition was opposed with the contentions that petitioner being fugitive from law, could not seek any relief from the court and that petition filed by the counsel appointed by alleged general attorney of the petitioner, could be considered, unless he would surrender himself before the court of law---Validity---Petitioner was absconder, and trial against him was in progress, and petitioner was represented by the counsel appointed by the court---Petition for transfer of case and quashing the proceedings had been filed by counsel on the authority given by alleged general attorney of the petitioner---Such petition on behalf of the petitioner, could not be held to be "petition" by which relief could be granted to petitioner---Fugitive from law could not be awarded relief, unless he surrendered before the court---Petitioner, failed to point out any ground requiring transfer of case from the court of Trial Judge to any other court---Expeditious trial in cases of terrorism, was the requirement of special law and the concept of said law was nothing, except the disposal of cases on day to day basis and appeal decided within a specific time-frame---Adverse opinion against the Trial Judge, in circumstances, could not be taken---Petition was dismissed, and parties were directed to appear before the Trial Court on date already fixed for further proceedings, in circumstances. PLD 1973 SC 327; PLD 2001 Kar. 14; Muhammad Sabir Roshan v. State 2000 PCr.LJ 1195; PLD 2002 Lah. 74; 1999 P.Cr.LJ 1381 and 2012 PCr.LJ 1337 ref. Malik Kifayat ur Rehman and Muhammad Abdul Azeem for Petitioner. A.A.-G. for the State. Malik Haq Nawaz for the Complainant.

Petitioner Mir Shakeel ur Rehman filed the petition in hand under section 526 read with section 561-A, Cr.P.C. vide order dated 31-10-2014 notice was issued to the State and comments on application were sought from the trial/ATA Judge No.1 Gilgit, who furnished detail comments which are placed on file. Arguments pro and contra heard at length, record available on file perused. Learned counsel for the petitioner argued mainly on the merits of case stating that the petitioner is neither the owner of Geo Entertainment Channel nor he has been involved in broadcasting any program as has been alleged in the F.I.Rs. The petitioner has falsely been involved in the two F.I.Rs. lodged in the jurisdictional area of the Court i.e. Police Station Basin, District Gilgit and Police Station Chilas District Diamer, just to torture and humiliate him with mala fide intentions, therefore, the F.I.Rs. are liable to be quashed under section 561-A of Cr.P.C. The next argument advanced by the learned counsel was that since the learned trial Judge is in hurry in holding the trial against the petitioner by violating the mandatory provisions provided in the law, therefore the petitioner lacks confidence over the Judge, hence the case be transferred to any other Court in Gilgit-Baltistan. The learned counsel to substantiate their view point referred "PLD 1973 Supreme Court page 327 and PLD 2001 Karachi p 14". The Assistant Advocate-General forcefully opposed the transfer application with the contention that the petitioner being fugitive from law cannot seek any relief from the Court neither his application, filed by the counsel appointed by his alleged General Attorney, can be considered unless he surrenders himself before the Court of law. Malik Haq Nawaz Advocate, counsel for the complainant argued that the application under section 561-A, Cr.P.C. for invoking the jurisdiction of the Court is not maintainable due to the simple reason that the special law known as Anti-Terrorism Act 1997 has taken away the jurisdiction of the Court provided under general law vide sections 561-A, 435 and 439, Cr.P.C., hence this Court has got no jurisdiction to entertain any application under these provisions of law. The learned counsel also pointed out that the petitioner had moved an application under section 561-A, Cr.P.C. previously which was disposed of vide order dated 5-9-2014 and this Court had directed the petitioner for agitating the grievances if any faced by him first before the trial Court, but the petitioner did not bother to apply and point out any such issue before the Court for adjudication. However, the petitioner had filed an application under section 265-K on 27-10-2014 and notices were issued on 29-10-2014. On that date the prosecution closed their evidence and the main case along with the application was fixed for 6-11-2014 for arguments, hence seemingly there was no chance to decide the application under section 265-K earlier. Now that the trial of the case is completed, filing of such application at the belated stage of the order of this Court is nothing except to defeat the ends of justice and create hindrance in passing judicial order by the Court with mala fide intentions which is liable to be set aside. On the point of transfer of the case the learned counsel submits that there is no ground requiring transfer of the case to any other Court nor any other Court is in existence within the jurisdiction of this Hon"ble Court, hence this petition for transfer cannot be considered just to fulfil the whims and wishes of a party. The learned counsel challenged the maintainability of the petition on the ground that the learned counsel appearing on behalf of the petitioner have not been authorized by the petitioner himself who has been declared absconder by the Court of competent jurisdiction and he being fugitive from law is not entitled for any relief from the Courts. He referred "2000 PCr.LJ page 1195, PLD 2002 Lahore p.74 and 1999 PCr.LJ page 1381" in support of his contentions. So far the defence with regard to the quashment of proceedings ongoing before the Anti-Terrorism Court, in connection with F.I.Rs. Nos.23/2014 and 43/2014, is concerned the jurisdiction of this Court have never been taken away under sections 25, 31 and 32 or any other provision under Anti-Terrorism Act, 1997. However, as cited by the learned counsel for the complainant in case law reported "2000 PCr.LJ 1195 Karachi titled Muhammad Sabir Roshan v. State", it was held that "revisional or inherent jurisdiction of High Court is not available to assail an order passed by special Court under sections 25, 31 and 32 of Anti-Terrorism Act, 1997, which are to be read in conjunction with each other, do not permit the order passed by the special Court to be challenged in revision or under inherent jurisdiction". This view taken by the bench of Karachi jurisdiction could not be followed for the simple reason that there is no provision in the special law known as Anti-Terrorism Act, 1997 which may override the provisions contained in the shape of 435, 439 and 561-A in the procedural law. The special law also held applicable the provision of general law which may not be provided in the special law. Secondly, the special law has never imposed any restriction in filing of revision petitions or invoking the inherent jurisdiction of the Court. Therefore, this view with the support of referred case law of learned counsel for the complainant cannot be accepted. I humbly disagree with the case law referred above. The correct legal position as have been held in the case law reported "2012 PCr.LJ 1337 Peshawar" is that there is no bar in filing revision petitions/invoking inherent jurisdiction of the Court against the orders of Anti-Terrorism Court. Therefore, the quashment application is although maintainable in law but the petition in hand having no legal force as the learned counsel for petitioner could not cite any impugned order passed by the trial Court which may require to invoke the inherent jurisdiction of this Court. This petition has been filed by the learned counsel on the authority given by alleged General Attorney of the petitioner. The petitioner himself is stated to be absconder and trial against him is in progress and petitioner is represented by the counsel appointed by the Court as envisaged in law. The application for transfer of the case has not been moved by the petitioner himself or presented of proper authority on his behalf cannot be held to be a petition by which a relief can be granted. In a number of cases like PLD 2004 Quetta 16 and 2005 YLR 1283 Karachi" the Courts have held that fugitives from law cannot be awarded relief unless they do not surrender before the Court. That the learned counsel for the petitioner badly failed to point out any ground requiring transfer of the case from the Court of trial Judge to any other Court. The expeditious trial in cases of Anti-Terrorism is the requirement of that special law and the concept of that law is nothing except the disposal of cases on day to day basis and appeals are also held to be decided within a specific time frame, hence adverse opinion against the trial Judge cannot be taken. I in the circumstances vide my short order dated 5-11-2014 i.e. "since the learned counsel for the petitioner could not put forward any ground requiring transfer of the case and presentation of this petition by the petitioner who being fugitive from law disentitles from the relief asked in the petition. Petition dismissed accordingly. Parties are directed to appear before the trial Court on 6-11-2014 already fixed for further proceedings" have disposed of this petition and these are the reasons for above short order. File. HBT/15/GB Petition dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.