1995 P Cr (PLP)

SH. MUHAMMAD ZUBAIR, J: -- Through this Constitutional petition, the petitioner has assailed the jurisdiction of the Judge, Special Court, constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975 (hereinafter referred to as the "Act"), to try the case against the petitioner on the ground that the offences for which the petitioner is charged do not fall within the scheduled offences, hence- the trial Court has no jurisdiction under section 4 of the Act, to try the case against the petitioner.

2. The brief facts, relevant for the decision of this petition, are that the petitioner is involved in case F.I.R. No.401/92, dated 15-6-1992, under section 324/427/34, P.P.C. registered at Police Station Moghalpura, Lahore. The police submitted the challan in the Court of learned Judge, Special, Court, who after taking cognizance of the case, is proceeding with the trial.

3. The learned counsel for the petitioner contended that as the offences mentioned above do not fall within the category of scheduled offences as specified in the Schedule to the Act; hence the learned Judge lacks the jurisdiction to try this case in view of the bar contained in section 4(1) of the Act. The trial before the said learned Court is coram non judice and nullity in the eye of law. Place reliance on 1992 P Cr. L J 2308.

4. The learned Additional Advocate-General has opposed this petition on the ground that in view of section 8 of the General Clauses Act, 1897, the learned Judge is competent to try the case under section 324, as reconstituted by Qisas and Diyat Ordinance, 1990, because section 307, P.P.C. has since been repealed and reacted in the shape of section 324 of the Oisas and Diyat Ordinance.

5. We have heard the learned counsel for the parties at length and have perused the record. It would be appropriate to reproduce section 8(1) of the General Clauses Act, 1897, for the facility reference. It reads: "

8. Construction of the reference to repealed enactments.-- (1) Where this Act, or any (Central Act) or Regulation made after the commencement of this Act, repeals and re-enacts, with or without modification any provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted." The plain reading of the above provision would show that whenever legislation is made by reference, then according to section 8 of the General Clauses Act, where the Act repealed has been re-enacted with or without modification, reference, in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted. According to Rule of Interpretation, as laid down in the above section, since section 324, Qisas and Diyat Ordinance, 1990, has been re-enacted in place of section 307, P.P.C., so it shall be deemed to be a scheduled offence, hence the learned trial Judge has the jurisdiction to try the offences, being scheduled offences. The contention of the learned counsel for the petitioner with respect to the nature of weapon of offence used in the commission is devoid of force, as stengun used in the commission of offence is an automatic weapon and is fully covered by the weapons enumerated in clause (c) of the Schedule attached to the Act.

6. For the foregoing reasons, we find no substance in this writ petition, which is accordingly dismissed, but in view of the complicated questions of law and facts, involved in this petition, the parties are left to bear their own costs. N.H.Q./M-1885/L Petition dismissed.