ATC can transfer case to ordinary criminal court: SC

Updated Jul 01 2020

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Authority to transfer case remains with the ATC during trial proceedings till judgement was announced, says Supreme Court. — SC website/File
Authority to transfer case remains with the ATC during trial proceedings till judgement was announced, says Supreme Court. — SC website/File

ISLAMABAD: The Supreme Court has held that the Anti-Terrorism Court (ATC), seized with a case, can transfer the same to any ordinary criminal court for trial under Section 23 of the Anti-Terrorism Act (ATA), 1997.

But the authority of the ATC to transfer the case under Section 23 to an ordinary criminal court for trial under the Criminal Procedure Code (CrPC) can be exercised after taking cognisance of the case, held Justice Yahya Afridi, adding that this authority to transfer the case remained with the ATC during the proceedings of the trial till a judgement was announced.

Justice Afridi is a member of a three-judge Supreme Court bench, headed by Justice Mushir Alam, which had taken up an appeal of Ali Gohar against the Feb 21, 2019 order of the Sindh High Court’s Sukkur bench.

Consequently, the Supreme Court allowed the appeal after setting aside the SHC judgement and restoring Nov 13, 2018 order of the ATC to transfer the case to the ordinary court.

In its verdict, the Supreme Court also explained the conditions by stating that the ATC could exercise its authority to transfer the case under Section 23 of the ATA after taking cognisance of the matter, and secondly, if the ATC was of the opinion that the offences referred to it for trial did not come within the scope of offences triable under the ATA.

The judgement said the words “cognisance of the case” employed in Section 23 of the ATA simply meant that the ATC on receipt of the challan could take any step indicative of proceeding with the trial. It explained that it was not inclined to accept the contention that Nov 13, 2018 order of the ATC to transfer the case to the ordinary court under Section 23 was premature as it had not taken “cognisance of the case”.

“The reasons for our opinion is obvious: firstly, it is an admitted fact that the challan along with the material was placed before the ATC and the court had not only served the accused to appear before it, but also provided them the requisite material under Section 265 (c) of CrPC to respond to the charge that was to be framed,” Justice Afridi said.

The ATC had to peruse the entire prosecution material before fixing a date for framing of the charge under Section 265 (d) of CrPC, the judgement said, adding that these distinct steps taken by the ATC reflected its conscious application of mind on the material placed before it to proceed with the trial of the accused. Secondly, it said, the present objecting complainant party had not been taken by surprise as they were provided full opportunity by the ATC of addressing their contentions on the crucial issue, before passing the Nov 13 order to transfer the matter.

“Once we conclude that ATC had legally requisite material available to decide the issue of transfer of the case, the decision so taken was legally correct to hold that it lacked jurisdiction to try the case,” the judgement said, adding that it would be against the cardinal principle of safe administration of criminal justice to then clog the authority vested in the ATC under Section 23 to transfer the case or for that matter direct it to proceed with the trial.

Published in Dawn, July 1st, 2020