1997 P Cr (PLP)

This is a criminal reference received from the learned District and Sessions Judge, Bahawalpur seeking guidance of this Court as to the forum of trial of case F.I.R. No.222/92, dated 31-7-1992 registered under section 302/ 324/148/149/452/511/448/436, P.P.C. at Police Station Khairpur Temwali pending trial before Mr. Muhammad Saleem Qureshi, Additional Sessions Judge, Bahawalpur. The precise question mooted for resolution isN3he following:-- "As a mineral product of Kerosene oil has been used for the commission of the offence which falls within the schedule of Suppression of Terrorist Activities (Special Courts) Act, 1975, can the Court of Session try this case?" A notice was issued to the learned counsel for the accused as also to the learned Assistant Advocate-General.

2. The prosecution case emanating from the F.I.R. briefly stated is that the complainant Khuda Bakhsh is a tenant of Amjad Ali Shah. This land was in occupation of accused Ghulam Rasool etc. About nine months prior to the occurrence in question the said Amjad Ali Shah dispossessed Ghulam Rasool etc., through the influence of the local landlords and had given it to his tenants, which besides the complainant included Riaz, Sher Muhammad, Allah Rakha and Nazir Ahmad etc. On the fateful day and time, the accused named in the F.I.R. which were about 28 in number, having armed themselves with deadly weapons, came to the spot and raised a Lalkara that they had come to teach a lesson for having taken possession of the said land. Thereafter, accused Ghulam Rasool etc. resorted to firing. The complainant party fled away from the spot with a view to protect themselves and sought refuge at a room on the tube-well. The accused allegedly chased the complainant party and asked them to come out of the said room. The kerosene oil was lying there. They sprinkled the said oil on the room made of straws and put it on fire. The members of the complainant party left the room (Sehal) and ran. The accused party kept on firing as a result of which several persons from the complainant party received injuries. Bashir Ahmad son of the complainant succumbed to the injuries at the spot and died whereas Riaz Ahmad injured died in the hospital on 7-8-1992. After investigation, the challan was submitted in the Sessions Court, Bahawalpur against the accused persons for trial.

3. The learned counsel for the accused submits that the accused have been charged with offences, which are not scheduled for the purpose of Suppression of Terrorist Activities (Special Courts) Act, 1975 and, therefore, the trial of this case shall have to be conducted by the Sessions Court. In support of his arguments, he raised the following pleas:-- (i) That the main offence in the instant case is under section 302, P.P.C. which is not a scheduled offence. Section 302 or section 307, P.P.C. (section 324, P.P.C.) can be tried by a Special Court if they fall within the meaning of item (a)(ii-a) of the Schedule to Suppression of Terrorist Activities (Special Courts) Act, 1975; (ii) That kerosene oil is not a mineral oil within the meaning of item (a)(iv) ibid; (iii) That even if kerosene oil is held to be a mineral oil, a separate challan to the extent of section 436, P.P.C. can be filed in the Special Court constituted for the purpose but the remaining offences shall have to be tried by the Court of Session.

4. Mr. Shaheen Masood Rizvi, the learned Assistant Advocate-General bas frankly conceded that the offences under sections 302 and 324, P.P.C. shall have to be tried by the Court of Session and that a separate challan shall have to be submitted in so far as the trial of section 436,. P.P.C. is concerned. He further submits that kerosene oil is a product of mineral oil and, therefore, its use in the commission of the offence would make section 436, P.P.C. a scheduled offence under the afore-referred Act of 1975.

5. For a proper appreciation of the question, which has been raised in this reference, it would be pertinent to examine the context bf the relevant provisions concerning the jurisdiction. Section 4 of the Suppression of Terrorist Activities (Special Courts) Act, 1975 reads as under:-- "Jurisdiction of Special Court.

(1) Notwithstanding anything contained in the Code, the scheduled offences shall be triable exclusively by the Special Court: Provided that this section shall not be construed to require the transfer to a Special Court of any case which may be pending in any Court immediately before the constitution of the Court: (Provided further that the Government constituting a Special Court may, by notification in the official Gazette, direct that the Special Court shall have jurisdiction to try only such persons who have committed scheduled offences as may be specified in the notification). (2) If, in the course of a trial before the Special Court is of opinion that any of the offences which the accused is alleged to have committed is not a scheduled offence, the Court shall record such opinion and try the accused only for such offence, if any, as is a scheduled offence." A reference to the Schedule of the Act would also be very relevant which is being reproduced below:-- (a) Any offence punishable under any of the following sections of the Pakistan Penal Code (XLV of 1860), namely:-- (i) Sections 121, 121-A, 122, 123, 123-A, (124-A), (365-A), 400, (402 -A 402-B, 402-C) and 431; (ii) section 216, if committed in relation to an offence who is accused of having committed any of the offences specified in the Schedule; (ii-a) section 302 or section 307, if committed in the course of the same transaction in which an offence specified in this paragraph or paragraphs (b) and (c) is committed, or in addition to, or in combination with, such offence; (iii) sections 392, 393, 394, 395, 396, 397, 398 and 399, if a cannon, grenade, bomb, rocket or an arm of a prohibited bore is used for, or any public property is stolen, destroyed or damaged in, the commission of the offence; of (iv) sections 435, 436, 437, 438 and 440, if an explosive substance, mineral oil or any product of mineral oil is used for the commission of the offence; (b) Any offence punishable under the Explosive Substances Act, 1908 (XI of 1908); (c) Any offence punishable under the Arms Act, 1878 (XI of 1878), or any offence punishable under any of the following sections of the West Pakistan Arms Ordinance, 1965 (West Pakistan Ordinance No.XX of 1965), namely sections 8, 9 and 10, if committed in respect of a cannon, grenade, bomb, rocket; or a light or heavy automatic or semi automatic weapon such as Klashnikov, a G-III rifle or any other type of assault rifle. (cc) Any offence punishable under section 13-A or section 13-B of the 'Pakistan Arms Ordinance, 1965 (W.P. Ordinance No.XX of 1965). (d) Any offence punishable under any of the following sections of the Railways Act, 1890 (IX of 1890), namely, sections 126, 127 and 128; (e) Any offence punishable under section 25 of the Telegraph Act, 1885 (XIII of 1885); (f) Any offence punishable under Rule 29 of the Aircraft Rules, 1937; (g) Any offence punishable under Rule 43 of the Defence of Pakistan Rules; (h) Any offence punishable under subsection (1) of section 13 of the Prevention of Anti-National Activities Act, 1974, if such offence constitutes anti-national activity within the meaning of sub-clause (ii) of clause (a) of section 2 of that Act; and (i) Any attempt or conspiracy to commit, or any abetment of, any of the aforesaid offences."

6. A close scrutiny of the above-referred provisions of law would make it clear that the offences alleged in the instant case except section 436, Cr.P.C. are not the scheduled offences and they shall have to be tried by an Ordinary Court under the Criminal Procedure Code. Unless excepted under any enactment, all offences under the P.P.C. have to be tried under the Criminal Procedure Code. This intent of procedural law of the land is expressed in section 5 of the Criminal Procedure Code which reads as under:-- (1) All offences, under the Pakistan Penal Code shall be 'investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained. (2) All offences, under any other law shall be investigated, be inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigation, inquiring into, trying or otherwise dealing with such offence. "

7. The jurisdiction of the Special Court constituted under the Suppression of Terrorist Activities Act, 1975 has been expressly ousted to try an offence, which is not a scheduled offence. If during the course of trial, the learned Special Court is confronted with the situation that some of the offences are scheduled while the others are not, then the learned Special Court shall confine itself to the trial of only those offences, which are scheduled and leave the rest for trial by an ordinary Court constituted under the Criminal. Procedure Code. Subsection (2) of section 4 of the Suppression of Terrorist Activities (Special. Courts) Act, 1975 which has been reproduced above caters precisely to such situations.

8. In the instant case, however, it is the Court of the learned Additional Sessions Judge, which is confronted with this situation. It can try offences under section 302/324/452/148/511/448/149, P.P.C. and leave section 436, P.P.C. to be tried by a Special Court constituted under Act XV of 1975.

9. The argument of the learned counsel for the accused that kerosene oil is neither an explosive substance of mineral oil nor any product of mineral oil is misconceived. Kerosene oil has been defined in Chambers Concise 20th Century Dictionary as Paraffin oil obtained from shale or by distillation of petroleum". The word "Petroleum" has been defined in the same dictionary as "mineral oil" containing a mixture of hydrocarbons got from oil-wells, and used to make petrol, paraffin, lubricating oil, fuel oil, etc. Thus the kerosene oil is a by-product of mineral oil and since it had been used in the commission of offence punishable under section 436, P.P.C., therefore, this offence would prima facie constitute a scheduled offence to be tried by the Special Court constituted for the purpose. In a Division Bench judgment of this Court reported in Muhammad Sharif v. State 1992 PCr.LJ 127 a Special Court convicted the accused under section 395/394/397/307/149, P.P.C. Some of the accused were also convicted under section 411, P.P.C: This Court set aside the conviction under section 411, P.P.C. on the ground that this offence was not a scheduled offence. It was, however, directed that the case against the said accused/appellants under section 411, P.P.C. shall be tried under the ordinary law. In yet another judgment of the Full Bench of this Court reported as Ghulam Shabbir and 37 others v. Punjab Special Court (Suppression of Terrorist Activities) No.5, Faisalabad and another 1992 PCr.LJ 1932, a case was directed to be withdrawn from the Special Court and was ordered to be tried by an ordinary Court as the offences alleged did not fall within the afore-referred schedule.

10. For what has been discussed above as all the offences except under section 436, P.P.C. are not scheduled offences, the case to that extent shall be tried by the Additional Sessions Judge who was already seized with the matter. Since it is an old matter, I am persuaded to direct the learned trial Court to proceed with the trial expeditiously preferably from day-to-day basis and conclude the same within a period of five months. So far as the offence under section 436, P.P.C: is concerned, the prosecution may file a separate challan in the learned Special Court constituted under Suppression of Terrorist Activities (Special Courts) Act, 1975. The Deputy Registrar of this Court shall ensure that the file is sent to the learned trial Court by 12-3-1995. This Reference stands disposed of in the abovenoted terms. N.H.Q./A-810/L Reference answered.