23. Power to transfer cases to regular
Courts.--Where, after taking cognizance of an offence, an [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.
COMMENTARY
Prosecution had failed
to connect arms and ammunition secured from co-accused with Scheduled Offence.
Said co-accused had not committed offence punishable under S.13(d)
of West Pakistan Arms Ordinance, 1965, conjointly with any offence of
Anti-Terrorism Act, 1997. Anti-Terrorism Court, in circumstances had no
jurisdiction to try said co-accused. Cases of co-accused required to be
transferred from the Court of Anti-Terrorism to ordinary Court having
jurisdiction in the matter. (2006 MLD 834)
Despite the brutality
displayed by the culprits and the consequent horror, shock, fear and insecurity
likely to be created by the savagery perpetrated by the offenders, same did not
appear to be a case of "terrorism" as the motive for the alleged
offences was nothing but personal enmity and private and the motivation on the
part of accused party was not to overawe or intimidate the Government, etc. or
to destabilize the society at large or to advance any sectarian cause etc.
Application filed by the petitioner before the
Intention of the accused
was to commit a simple offence of robbery, but when they were put in different
situation, they fired from their weapons in order to save themselves.
Ingredients of Section 6 of Anti-Terrorism Act, 1997, in circumstances, were
missing from the case. Anti-Terrorism Court, in circumstances, had no
jurisdiction to try the case. Conviction and sentences awarded to accused by
Where Investigating
Agency itself was of the view that no scheduled offence was committed, the
proper course was to return FIR to police for presenting the same before
competent court having jurisdiction in the matter. High Court directed the
Provisions of Section 23
of the Anti-Terrorism Act, 1997 had eclipsed the provisions of Section 190(3),
Cr.P.C. and thereby conferred jurisdiction upon the court of
session to take cognizance directly on the transfer of the case from the
Despite the brutality
displayed by culprits and consequent horror, shock, fear and insecurity likely
to be created by savagery perpetrated by offenders, has not appeared to Court
to be a case of terrorism as motive for the alleged offences was nothing but
personal enmity and private vendetta and motivation on part of accused party
was not to occurrence or intimidate Government or to destabilize society at
large or to advance any sectarian cause. Intention of accused party did not
depict or manifest any "design" or "purpose" as
contemplated by the provisions of S. 6(1)(6) or (c) of
the Anti-Terrorism Act, 1997 and actus reus attributed to it was not
accompanied by necessary mens rea as to brand actions as terrorism triable
exclusively by a special Court constituted under the Anti-Terrorism Act,
1997. Further
held: Order passed by the