C.P.No.D-105  of  2016

 

1.    For Katcha Peshi

2.    For hearing of CMA-270/2016

 

 

C.P.No.D-225  of  2016

 

1.    For orders on office objection

2.    For orders on CMA-625/2016

3.    For Katcha Peshi

4.    For hearing of CMA-611/2016

 

 

                                                  Present:

Mr. Justice Aqeel Ahmed Abbasi &

Mr. Justice Muhammad Faisal Kamal Alam.

 

13.04.2016

 

Mr. Qurban Ali Malano assisted by Mr. Gulzar Ahmed Malano, advocates for petitioners in CPD-105/2016.

Mr. S. Ali Amir Shah Advocate for petitioner in CPD-225/2016.

M/s Athar Abbas Solangi and Ghulam Shabir Shar advocates along with complainant Rashid Mahmood Soomro.

Mr. Liaqat Ali Shar, Additional Advocate General.

Mian Mumtaz Rabbani, Deputy Attorney General.

Mr. Abdul Rahman Kolachi, Assistant Prosecutor General.

                                     

 

                                    O  R  D  E  R.

 

 

AQEEL AHMED ABBASI, J. The petitioners are accused in F.I.R No.82/2014 registered at Police Station, Site Area, Sukkur for an offence under section 296, 302, 120-B, 34, 337-H(ii) PPC read with section 6 and 7 of Anti-Terrorism Act,1997 have filed above petitions seeking declaration from this Court to the effect that the case of the petitioners, which is proceeding in the Anti-Terrorism Court Sukkur is not triable by the Military Court, established under Pakistan Army (Amendment)  Act, 2015. It has been further prayed that the recommendations made by the respondents to the Federal Government, Ministry of Interior for sending the trial of the aforesaid case to the Military Court from the Special Judge, Anti-Terrorism Court, Sukkur, are illegal and unconstitutional being violative of Articles 9, 10, 10-A, 14, 25 and 175 of Constitution of Islamic Republic of Pakistan, 1973.

 

2.                     The precise contention of the learned counsel for the petitioners is that the recommendations of the respondents for sending the case of the petitioners from Anti-Terrorism Court, Sukkur to Military Court, established under Pakistan Army (Amendment) Act, 2015, pursuant to 21st Amendment in the Constitution of Islamic Republic of Pakistan, 1973, is the result of political pressure exerted by respondent No.9 and the political workers of a religious political party and such decision is being taken  by the respondents, without examining the merits of the case. According to learned counsel for petitioners, case of petitioners does not fall within the ambit of Section 2 of Pakistan Army (Amendment) Act, 2015, whereas respondents, without following the steps for identification and transfer of cases to be tried by the Military Court in accordance with amendment in Army Act, section 2 after subsection (3), whereby Federal Government has been empowered to transfer any proceedings in respect of any person, who is accused of any offence falling under the Amendment Act, to a Military Court, established for such purpose. Per learned counsel, certain steps are required to be taken and observed as Rules of Business, 1973 by the Federal Government and the Ministry of Interior as detailed at pages 41 to 45 of CP No.D-105/2016, which have not been followed in accordance with law, whereas, recommendations have been made and summary has been sent by Provincial Government to the Ministry of Interior for the purposes of transfer of the case of petitioners to Military Court.

 

3.                     Pursuant to Court notices, respondents filed comments, whereas, preliminary objection has been raised with regard to maintainability of instant petitions, mainly on the grounds that instant petitions are misconceived and not maintainable, as the same have been filed at a pre-mature stage. It has been contended on behalf of respondents that since, there is no final decision or order passed by any Court or authority to transfer the case of the petitioners to Military Court, nor even the steps, which are required to be taken by the Federal Government, as referred to hereinabove, have yet been taken or the procedure for such purpose has been completed, therefore, the petitioners, who have approached this Court on the basis of some News-clippings, are not entitled to any relief at this stage. It has been argued by the learned counsel for the respondent, as well as learned Addl. A. G that unless, there is some final decision by the relevant authority, after completion of aforesaid steps, petitioners have no cause of action whatsoever to approach this Court under Article 199 of Constitution of Islamic Republic of Pakistan, 1973, as it amounts to pre-empt such decision by the relevant authorities in accordance with law. It has been argued that the case of petitioners is otherwise triable by Military Courts, as the murder of a Religious Scholar, who was a Hon’ble Member of Senate, has been committed in a brutal manner on sectarian grounds. 

 

4.                    While confronted with such legal objection, learned counsel for the petitioners submits that since the steps, as referred to hereinabove, which are required to be taken by the Provincial and Federal Governments and the Authorities as detailed under such steps, are being taken behind the back of the accused persons under political pressures exerted by a religious political party, whereas, the petitioners will neither be associated nor even communicated the final decision, therefore, the petitioners have no other remedy, except to approach this Court in its constitutional jurisdiction under Article 199 of Constitution for redressal of their grievance. However, in view of admitted fact that no final decision has so far been taken by the Federal Government, Ministry of Interior to transfer their case to Military Court, the learned counsel for the petitioners was confronted as to how such process of taking decisions pursuant to various steps as referred to hereinabove can be frustrated at this stage, the learned counsel for the petitioners could not satisfactorily respond to such query of this Court and candidly submitted that unless there is some final decision or any order either executive or judicial, mere proceedings or steps in this regard could not be challenged under Article 199 of the Constitution.

 

5.                     In view of hereinabove facts and circumstances of above cases, learned counsel for the parties as well as learned Addl. A. G, DAG and APG have agreed for disposal of instant petitions in the following terms:

 

(i)            The Provincial and Federal Governments and the relevant authorities, as detailed in step 1 to step 8, available at page 41 to 43 of CP No.D-105/2016, shall examine the matter afresh with due care and caution required however, keeping in view the legal provisions of Pakistan Army (Amendment) Act, 2015, with particular reference to provisions of section 2, and shall ensure that proper decision shall be taken strictly in accordance with law, without being influenced by any external pressures, whereas, no step as referred to hereinabove shall be ignored before taking final decision in this regard.

 

(ii)          Such decision may be communicated to the accused or the complainant party, within a reasonable period of time, so that any aggrieved party may approach the relevant forum, authority or competent Court of jurisdiction, as may be available for redressal of their grievance in accordance with law. It is expected that such exercise will be completed within four weeks from the date of receipt of this order.

 

            Both the petitions stand disposed of in the above terms, along with listed applications.

 

 

                                                                                   JUDGE

 

 

                                                JUDGE

 

 

N.M.