1991 PLP 1267 (SCMR)

‑‑‑‑S.302/307/436/219/218/148/149‑‑‑Suppression of Terrorist Activities (Special Courts) Act (XV of 1975), S.4‑‑‑Accused were charged under Ss. 302,307/436/ 219/218/148/149, P.P.C. and trial before Court of Session on the said charges except S.436, P.P.C was within jurisdiction of that Court and no exception could be taken by accused‑‑‑Accused, however, could make an application to trial Court for not having been tried under S. 436, P.P.C. which was a scheduled offence under Suppression of Terrorist Activities (Special Courts) Act, 1975, and Special Court had the exclusive jurisdiction to try the same and trial Court would make an appropriate legal order on such application in accordance with law, but would proceed against accused under Ss. 302, 307/436/219/218/148./149, P.P.C. Khalid Iqbal Qazi, Advocate Supreme Court and Imtiaz M. Khan, Advocate‑on‑Record (absent) for Appellants. Ch. Ghulam Ahmed, Advocate Supreme Court for Respondent No.l. Ch. M. Akram, Advocate Supreme Court for Respondent No.2. Date of hearing: 7th October, 1990. ABDUL QADEER CHAUDHRY, J.‑‑‑Leave to appeal was granted to the appellants on the basis of another order granting leave to appeal in Criminal Appeal No.63 of 1978 against the same judgment of the High Court. In the connected Appeal No.63/78 leave was granted to consider the contention that whether the sanction for the prosecution of the appellants was a condition precedent which had not been obtained, and as such they could not be called upon to face the criminal trial as ordered by the High Court?

2. The complainant filed a complaint under sections 302/307/436/219/ 218/148 and 14>, P.P.C. against the appellants and others including some public servants. The complaint was dismissed by the Sessions Judge, Rawalpindi. The High Court accepted the criminal revision of the complainant. As stated above, leave to appeal was granted to Malik Ghulam Sabir and another in Criminal Appeal No.63 of 1978. This Court on 4‑4‑1990 disposed of the appeal with the direction that the complaint filed by the complainant Qazi Rehmatullah against the appellants shall be deemed to be pending for disposal. The appellants in this appeal are not public servants therefore the sanction for prosecution is not required. However, as in the identical appeal which arises out of the same facts and complaint, it was directed that the complaint shall be deemed to be pending, the same order has to be passed in the present appeal following the judgment passed by this Court in Criminal Appeal No.63 of 1978.

3. Learned counsel for the appellants submitted that the appellants were also charged under Section 436, P.P.C. which is a scheduled offence under the Suppression of Terrorist Activities (Special Courts) Act, 1975. As such, the Special Court has the exclusive jurisdiction to try the said offence as contemplated by S.4 of the aforesaid Act which provides that "Notwithstanding anything contained in the Code, the scheduled offences shall be triable exclusively by a 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". In the complaint, it has been stated that "in the meantime, some of the persons in the cover of smoke succeeded in reaching the main door of the office. They threw some combustible material on the doors as well as inside as a result of which the office caught fire

Due to explosion and fire a copy of the Holy Quraan and other office record, a motor cycle and office furniture were also burnt." Prima facie, the contention of the learned counsel has force but the appellants are also charged under section 302, P.P.C. etc, therefore, the trial before the Court of Session on the above‑mentioned charges, is within jurisdiction and no exception could be taken by the appellants. However, the appellants may make an application to the trial Court that they could not be tried by the Court under section 436, P.P.C. and the trial Court would make an appropriate legal order on such application in accordance with law but it will proceed against the appellants under Section 302, P.P.C. etc. This appeal has no force and the same is dismissed with the above observations. N.H.Q./G‑317/S Appeal dismissed.