1998 PLP 497 (MLD)

RANA MUHAMMAD ARSHAD KHAN, J.

This petition has been filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 calling in question the order dated 11-fi-1995 passed by the learned Special Judge of Punjab Special Court-VI under the Suppression of Terrorist Activities (Special Courts) Act, 1975, Multan, whereby the application filed by Rana Naveed petitioner objecting to its jurisdiction to try the offence being not mentioned in the First Schedule to the Suppression of Terrorist Activities (Special Courts) Act, 1975, was rejected.

2. The facts, in brief, giving rise to the instant petition are that a case F.I.R. No.464 of 1994 dated 20-9-1994 was registered with Police Station, Mumtazabad under section 13-A of the Arms Ordinance-XX of 1965 against Shahid Jameel co-accused and Rana Naveed petitioner on the recovery of Klashnikove and a magazine thereof from their possession respectively. The challan, after the finalization of the investigation, was submitted before the aforesaid Punjab Special Courts No.VI, Multan against them. Rana Naveed petitioner herein, filed an application before the same Court objecting to the assumption of jurisdiction by it on the ground that the offence with which he was charged did not fall in the Schedule to the Suppression of Terrorist Activities (Special Courts) Act, 1975 and the same was rejected vide order dated 11-6-1995 impugned herein.

3. The learned counsel for the petitioner argued his case with vehemence contending that section 4 of the Suppression of Terrorist Activities (Special Courts) Act, 1975 makes it abundantly clear that the Special Court under the aforesaid Act, 1975 is not vested with the jurisdiction to try the offences which are not scheduled to the aforesaid Act of 1975. He maintained that mere recovery of magazine of Klashnikov does not constitute any scheduled offence and that the Special Court can only try the accused for the offence which are mentioned in the schedule attached to the Act, 1975. He added that since the offence allegedly committed by the petitioner is not included in the schedule, the same is beyond the jurisdiction of the Special Court to try.

4. The learned Additional Advocate-General, Punjab, on. the other hand, defended the order passed by the learned trial Court on the premises that if during the course of one transaction, different offences have been committed, some of them are scheduled offences and the others are not scheduled, the Special Court is vested with the jurisdiction to try all the offences together and it would also avoid the multiplicity of the proceedings.

5. We have heard the learned counsel for the respective parties at a considerable length and have also given our anxious considerations to the facts and the circumstances of the case and the law involved in it.

6. Before we dilate upon the merits of the case, it seems necessary to reproduce the relevant provisions of law:-- Section 4. "(1) 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. 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 (Added by Ord. XI of 1984). (2) If, in the course of a trial before the Special Court, the 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." Clause - (C) of the Schedule attached with the aforesaid Act, 1975 is reproduced below for facility of reference:-- "Any offence punishable under the Arms Act, 1878 (XI of 1878), or any offence punishable under any of the following sections for 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 or 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."

7. The mere reading of the aforenoted provision of law makes it abundantly clear that the Special Court cannot extend its jurisdiction beyond the scope of law, under which it was created. The special Court can try the accused only f6r the offences, specified in the schedule attached to the Act of 1975. The offence falling outside the schedule does not fall within the jurisdiction of the Special Court to try the same.

8. The entire data presented by the Police in the challan was that only a magazine of Klashnikov was recovered from the petitioner. There was no allegation that the, petitioner had anything to do with the Klashnikov or Klashnikov was recovered from him. Reference to section 4 of the Suppression of Terrorist Activities (Special Courts) Act, 1975, shows that the Special Court is empowered to try the scheduled offences falling in clause (c) of the Schedule attached to the Act making it very clear that the offences under sections 8 to 10 of the West Pakistan Arms Ordinance, 1965 are triable by the Special Court if they are committed in respect of a light or heavy automatic or semi-automatic weapon such as Klashnikov, G-III rifle or any other type of assault rifle. It is, unmistakenly, clear that an offence with regard to the magazine of Klashnikov is not included in Clause (C) referred to above. Unlike an ordinary Criminal Court, the Special Court is the creation of the statute of Special Courts Act, 1975, It has only such jurisdiction as is conferred by the said Act and its Jurisdiction cannot be extended beyond the scope of the said Act. The principle enunciated in Ghulam Shabbir and 37 others v. The Punjab Special Court (Suppression of Terrorist Activities) and others (1992 P Cr. L J 1932 (Lahore (Full Bench) is clearly attracted to the facts and the circumstances of this case,

9. In view of the aforegoing discussion, we accept this writ petition and set aside the order dated 11-6-1995 passed by the Judge Special Court, Multan, being without lawful authority and of no legal effect.

10. Resultantly, the case against the petitioner as regards the offence not covered by the Schedule to the Suppression of Terrorist Activities (Special Courts) Act, 1975 shall be tried by the ordinary Criminal Court.

11. There will, however, be no order as to costs. H.T.B//N-76/L???????????????????????????????????????????????????????????????????????????????????? Petition accepted.