2003 PLP 472 (SCMR)

RANA BHAGWANDAS, J.‑‑‑Leave to appeal is sought against the judgment dated 11‑4‑2000 passed by a learned Division Bench of the Sindh High Court expressing the view that the instant case falling within the ambit of the provisions of Suppression of Terrorist Activities (Special Courts) Act, 1975 (hereinafter referred to as the Act) would be triable by the Special Court and transferring the‑ case from the, file of learned Sessions Judge, Karachi South to the Court of Special Judge.

2. Facts leading to the controversy appear to be that on 14‑10‑1995 at about 11‑45 p.m. petitioner Nasir Abdul Qadir made a telephonic call to complainant Mst. Qamar‑un‑Nisa that he would be visiting her house. She informed her husband Ahmed Ali Soomro (since deceased) and went upstairs her house from where she peeped outside and found a yellow cab standing near the gate of the bungalow. She noticed petitioner Nasir Abdul Qadir alias Nasir Hussain and his driver Niaz Hussain standing near the taxi. Her husband and servants opened the door of the bungalow where after petitioner Nasir Hussain embraced Ahmed Ali Soomro (deceased) and took him outside. All of a sudden she witnessed Nasir Hussain firing upon her husband from pistol or revolver while Niaz Hussain firing from a Kalashnikov resulting in unnatural death of the deceased. After investigation both the petitioners were challaned before learned Sessions Judge and were on trial vide Sessions Case No.570 of 1995. The case was later transferred to the Court of learned Special Judge, Suppression of Terrorist Activities and registered as Special Case No.34 of 1999. Once again on the application of Sheikh Mir Muhammad, learned counsel for the petitioner it was transferred to the Court of Sessions Judge which order was impugned before the Sindh High Court which took a contrary view in the matter, hence this petition.

3. In arriving at the conclusion that the instant case falls within the jurisdiction of Special Court as ail unlicensed Kalashnikov had been used in the commission of the crime learned High Court relied upon the decision reported as Azhar Hussain v. Government of Punjab (1992 PCr.LJ 2308) which was cited with approval by this Court in Allah Din v. State (1994 SCMR 717).

4. Learned counsel appearing in support of the petition strenuously urged that since the Kalashnikov allegedly used by petitioner No.2 was neither recovered nor any case under the provisions of Arms Ordinance registered in line with para. (a)(ii) of the Schedule to the Act, complained of could not be considered as a scheduled offence under the provisions of the Act. Learned counsel referred to a Division Bench judgment of the Sindh High Court reported as Jehangir v. State (1999 PCr.LJ 476) which appears to have been noticed by the learned Sindh High Court and rightly distinguished on facts.

5. It is well‑entrenched principle of law that the question of jurisdiction can be determined on the basis of F.I.R. and other material which is reproduced by the prosecution at the time of presentation of the challan. The Court has to decide on the basis of such material whether cognizance is to be taken or not. Irrespective of the position whether a Kalashnikov is recovered or not if it is used in the commission of the crime in appropriate cases it may bring the case within the purview of scheduled offences under the Act. No exception can, therefore, be taken to the view expressed by the learned members of the Division Bench of the High Court which is consistent with the view earlier taken by this Court, in Allah Din's case (supra).

6. Learned counsel attempted to argue merits of the evidence tending to point out that in face Kalashnikov was not used by co‑accused Niaz Hussain in the commission of the crime but we are not inclined to go into deeper analysis of this question as it would be for the trial Court to appreciate the merits of the case at the trial. Any observation on this aspect of the case is likely to prejudice case of either of ‑ the parties, therefore, we refrain ourselves from dilating this question any further.

7. For the aforesaid facts and reasons petition is devoid of any merit and is accordingly dismissed. Leave to appeal is thus refused. N.H.Q./N‑78/S ?????????? Leave refused.