ORDER   SHEET

IN  THE  HIGH  COURT  OF  SINDH, CIRCUIT  COURT,  LARKANA

Crl.Revision Appln.No.S-56 of 2020.

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DATE                                       ORDER WITH SIGNATURE OF HON’BLE JUDGE

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01. For orders on office objection.

02. For orders on M.A.No.4728/2020 (S/A).

03. For hearing of main case.

Date of Hearing:       17.02.2022.

Date of Decision:      07.03.2022.

                                    Mr. Athar Abbas Solangi, Advocate for the applicants.

                                    Mr. Salahuddin Panhwar, Advocate for private respondent.

                                    Mr. Ali Anwar Kandhro, Addl.P.G for the State.

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IRSHAD ALI SHAH - J;- Facts in brief necessary for disposal of instant criminal revision application are that an FIR Crime No.20/2018 was lodged with P.S Mehar by the private respondent, alleging therein that the applicants and others, after having formed an unlawful assembly and in prosecution of their common object have committed murder of Mukhtiar, Qabil Hussain and Karamullah Chandio, by causing them fire shot injuries. Initially, the case was challaned before Anti Terrorism Court at Naushehro Feroz. Finally, the case was transferred to Anti Terrorism Court-I, Sukkur, wherefrom on application u/s.23 of Anti Terrorism Act, 1997 filed by the accused party, it was transferred to the Court of learned Sessions Judge at Dadu, to be disposed of according to law; such order was finally upheld by Honourable Supreme Court of Pakistan. Learned Sessions Judge at Dadu made over the case for its disposal to learned 1^st Additional Sessions Judge/MCTC at Dadu, wherein an application u/s.193 Cr.PC was filed by the applicants with prayer to remit the case to the Magistrate having jurisdiction for its cognizance in terms of Section 190 Cr.PC; it was dismissed by learned 1^st Additional Sessions Judge/MCTC at Dadu, vide order dated 17.10.2020, which is impugned by the applicants before this Court by preferring the instant criminal revision application.

                        It is contended by learned counsel for the applicants that the cognizance of the offence in terms of Section 190 Cr.PC is only to be taken by the Magistrate having jurisdiction; if taken otherwise, would be illegal; therefore, learned trial Court ought not to have dismissed the application of the applicants by way of impugned order; such order being illegal is liable to be set aside by this Court in exercise of its revisional jurisdiction. In support of his contentions, he relied upon cases of Muhammad Aslam and 2 others Vs. Mst.Natho Bibi (PLD 1977 Lahore-535), 2). Farid Vs.Allah Wasaya (PLD 1979 Quetta-156), 3). Doran Khan Vs. The State (PLD 1985 Quetta-188), 4). Riffat Hayat Vs. Judge Special Court for Suppression of Terrorist Activities Lahore and another (1994 SCMR-2177), 5). Bago and 2 others Vs. The State (1996 PCr.LJ-1818), 6). Mst.Mariam Sultana Vs. The State (PLD 2000 Quetta-12), 7). Bismillah Khan and another Vs. The State (2001 PCr.LJ-481), 8).Abdul Rehman Vs. Ghazan and 5 others (2005 MLD-954), 9). Muhammad Tayyab Abu Bukar Vs. Rana Masood Akhtar, Additional Sessions Judge Bahawal Pur and 2 others (2005 PCr.LJ-1496), 10).Rao Fahad Ali Khan Vs. The State and another (2014 PCr.LJ-1071) and 11). Muhammad Umer Mangrio Vs. The State (2014 MLD-1813).

                        Learned Addl.P.G for the State did not support the impugned order. However, learned counsel for the private respondent by supporting the impugned order has sought for dismissal of the instant criminal revision application by contending that the cognizance of the offence has already been taken by Anti Terrorism Court having jurisdiction and now the trial Court has to proceed with the case in accordance with law. In support of his contentions, he relied upon cases of Sardar Muhammad Sharif Dogar and another Vs. The State (1999 YLR-2146) and Haq Nawaz and others Vs. The State and others (2000 SCMR-785).

                        Heard arguments and perused the record.

                        Initially, the challan of the case was submitted before learned Anti Terrorism Court, Naushehro Feroz, who took cognizance whereof. Subsequently, the case was transferred to learned Anti Terrorism Court-I, Sukkur, wherefrom by having resort to provision of Section 23 of Anti Terrorism Act, 1997, it was transferred to Court of learned Sessions Judge at Dadu, for disposal in accordance with law. There is nothing in order of learned Anti Terrorism Court-I, Sukkur, which may suggest that he reviewed or recalled the order, whereby the cognizance of the offence was taken. Simple order for transfer of the case to the Court of ordinary jurisdiction for its trial by learned Anti Terrorism Court-I, Sukkur, does not amount to recalling of the order whereby cognizance of the offence was taken. Obviously, the transferee Court as per mandate contained by Section 23 of Anti Terrorism Act, 1997, has to proceed with the trial of the offence, as if it had taken cognizance of the offence. In these circumstances, learned trial Court was right to dismiss the application of the applicants for remitting the case to the Magistrate having jurisdiction for its cognizance, by way of impugned order, which is not be found illegal to be interfered with by this Court.

                        In case of Shahbaz Khan alias Tippu and others Vs. Special Judge, Anti Terrorism Court No.03, Lahore and others (PLD 2016 Supreme Court-01),      it has been held by Honourable Apex Court that;

“16. The learned counsel for the appellants has expressed the apprehension that a re-trial of the appellants would automatically follow if the learned ATC concluded during or after the recording of evidence that a scheduled offence is not made out. The anxiety expressed is completely misplaced because Section 23 of ATA expressly provides that a Court having jurisdiction under the Cr.P.C. 1898 "to which the case is transferred may proceed with the trial of the offence as if it had taken cognizance of the offence." Accordingly, the trial of the offence resumes from the stage at which it was transferred by the learned ATC.”

                        The case law which is relied upon by learned counsel for the applicants is on distinguishable facts and circumstances; therefore, it hardly supports the case of the applicants.

                        Having concluded above, the instant criminal revision application is dismissed together with listed application.    

    JUDGE