23/05/2025
If a judge of the Anti-Terrorism Court (ATC) Section 7 of the Anti-Terrorism Act, 1997 (ATA) from the case and transfers the matter to a Sessions Court for trial, the said order can indeed be challenged before the High Court. However, the legal question is whether such a challenge should be through an appeal or a writ petition (constitutional petition under Article 199 of the Constitution of Pakistan).
Legal Argument:
1. Nature of the Order – Judicial or Administrative:
The deletion of Section 7 ATA and transfer of the case to the Sessions Court is a judicial order passed by the ATC judge in the exercise of his jurisdiction under Section 23 of ATA, 1997.
Therefore, it is not an executive or administrative order; rather, it reflects the judge's opinion that the offence does not fall under the jurisdiction of the ATC.
2. Whether Appeal Lies:
The ATA, 1997 does provide for an appeal under Section 25 of the Act. However, appeals under Section 25 are generally meant for final judgments, convictions, or acquittals.
An interlocutory order (such as deletion of a section and transfer of case) is not appealable under Section 25 unless it finally decides the jurisdiction of the court in a way that may result in miscarriage of justice.
3. Availability of Writ Jurisdiction:
In such cases, the aggrieved party (usually the prosecution or the complainant) may invoke Article 199 of the Constitution and file a writ petition before the High Court.
The High Court has constitutional supervisory jurisdiction to correct jurisdictional errors committed by special courts.
Relevant Supreme Court Judgments:
1. Ghulam Hussain vs. Judge ATC & others (2020 SCMR 1606):
The Supreme Court held that if a trial court (ATC) wrongly excludes Section 7 of ATA and transfers the case, such an order can be challenged through a writ petition under Article 199 before the High Court.
2. Muhammad Amir vs. The State (PLD 2018 SC 577):
It was observed that the determination of jurisdiction by ATC must be based on the allegations in the FIR and material on record, not merely on assumption or premature conclusions. If this assessment is flawed, it can be challenged.
3. State vs. Mazhar Hussain (PLD 2002 SC 589):
The Supreme Court held that improper exclusion of ATA provisions amounts to refusal to exercise jurisdiction and can be corrected by the High Court in its constitutional jurisdiction.
Conclusion:
If the ATC judge deletes Section 7 ATA and transfers the case to the Sessions Court, such an order can be challenged through a constitutional petition (writ petition) under Article 199 of the Constitution before the High Court. This is because:
The order affects the jurisdiction of the court;
It is not appealable under Section 25 ATA;
Writ is the appropriate remedy to correct jurisdictional errors or illegal exercise/refusal of jurisdiction by special courts.
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