1997 P Cr (PLP)

KHALIL-UR-REHMAN RAMDAY, J.

The petitioners who stand accused of an offence punishable under section 302/34, P.P.C. vide F.1-R. No. 199 of 1993 of Police Station Saddar, Okara as also of an offence punishable under section 13 of West Pakistan Arms Ordinance No.XX of 1965 vide F.I.Rs. Nos.216 of 1993 and 217 of 1993 of the same Police Station, Saddar, Okara and whose trials were pending in the Court of a learned Additional Sessions Judge and a learned M.I.C. at Okara respectively are aggrieved of an order, dated 31-1-1994 passed by the learned Special Court at Lahore which stands established under the Suppression of Terrorist Activities (Special Courts) Act of 1975 through which order the said learned Special Court had asked the learned Sessions Judge at Okara to direct the learned Additional Sessions Judge as also the learned Ilaqa Magistrate seized of the abovementioned trials to send the cases in question to the said learned Special Court as according to the said learned Special Court, the offences in question were triable exclusively by it. It may be mentioned here that the impugned desire of the learned Special Court was honoured by the learned Sessions Judge and the cases in question were accordingly sent to the Special Court having been received by it on 8-2-1994. .

2. The Criminal Courts established by the Code of Criminal Procedure, 1898, are Courts of general and plenary jurisdiction whereas, the learned Special Court constituted under the abovementioned Act of 1975 is a Court of limited jurisdiction, which is restricted to exercise only those powers which stand specifically conferred on it by the law creating it and no more. It is true that section 4 of the said Act of 1975 makes certain offences triable exclusively by the Special Court and the provisions of section 5 of the said Act call upon the Officer-in-Charge of the concerned police stations to send reports under section 173 of the Cr.P.C. of such like cases directly to the learned Special Court. But no provision of the said Act confers any authority on the learned Special Court empowering it to requisition cases pending trial with Courts established under the Cr.P.C. or any other Court for that matter. Neither is the learned Special Court a Court superior to such Courts by virtue of which; superiority the learned Special Court could exercise any power to withdraw cases from the Court of Session or even from the Courts of Magistrates and to hold the trials thereof by it.

3. The proper course in such a situation available to a person aggrieved of assumption of jurisdiction in the matter of trial of a case by a Court other than the learned Special Court is to approach this Court, to which Court all the abovementioned Courts including the learned Special Court are subordinate, for a decision as to which of the said learned Courts would have jurisdiction in a given case to hold trial of an offence and then consequently to direct such a trial by a Court identified as the competent Court in the matter.

4. In view of the above discussion, we hold that the manner in which the learned Special Court the requisitioned the cases in question for trial by itself through an order, dated 31-1-1994 was an unlawful act which was without jurisdiction and of no legal effect. Such a practice on the part of the learned Special Courts which we have noticed in a number of other cases also must stop forthwith.

5. Since the learned counsel for the petitioners had not taken the trouble of appending any copy of either the F.I.R. or of the report under section 173 of the Cr.P.C. or even of the charge framed against the petitioners by the Court of learned Additional Sessions Judge or by the learned Magistrates seized of the said cases, therefore, it is not possible for us to declare as to which of the Courts was competent to hold the trials of the cases in question. In any case, as according to the petitioners themselves, they have already petitioned the learned Special Court under section 4(2) of the Suppression of Terrorist Activities (Special Courts) Act of 1975 seeking a declaration that the offences in question were not triable by it, therefore, we do not consider it appropriate to pre-empt the exercise of such a jurisdiction by the learned Special Court. The said learned Court is, therefore, directed to decide the said application and if the petitioners are aggrieved of the said order passed by the learned Special Court, then, it will be open to them to challenge the said order before this Court in appropriate proceedings.

6. This petition stands disposed of in the above terms. There shall, however, be no orders as to costs.

7. Copies of this judgment shall be sent to the learned Special Court concerned and to the learned Judge of Okara for their information. Further, copies of this judgment shall also be sent to the Home Secretary who shall send the same to all the learned Special Courts in the Province of Punjab established under the Suppression of Terrorist Activities (Special Courts) Act of 1975 for their information and compliance.

8. The Registrar of this Court shall also send copies of this judgment to all the learned Sessions Judges in the Province for their information and compliance. N.H.Q./S-83/L, Order accordingly.