2001 P Cr (PLP)

The applicant Rajib son of Darya Khan is facing trial alongwith others in an F.I.R. No.8 of 2000 of Police Station Abdul Rebman Unnar, lodged by one Muhammad Bux, registered under sections 302, 404, P.P,C. , and 13‑D, Arms Ordinance. After due verification of the said crime, the charge‑sheet was filed in the Court of law. The bail application was moved in the trial Court, but it was dismissed by an order, dated 21‑7‑2000 by the learned 1st Additional Sessions Judgp, Khairpur. Hence, this bail application has been filed. The brief facts of the prosecution case, as enumerated in the F.I.R. lodged on 2‑3‑2000, are reproduced in extenso as under:‑‑ "Complaint is that my uncle Abdul Kareem, who resides in the same village, is Watchman (Chowkidar) with Raz Muhammad Shaikh. As usual today night my uncle Abdul Karim and Chowkidar Muhammad Bux came to Ghotki. We as usual after taking the night meal slept. At about 1‑30 p.m. we heard the cries of uncle Abdul Karim and fire reports. I and Jan Muhammad son of Ali Muhammad Burdi opened the door and came out from the house and saw that 4 unidentified persons out of them one was armed with K.K. and others were armed with gun and hatchets. In our presence accused directly fired upon my uncle with K.K. Meanwhile, Chowkidar Muhammad Bux Shaikh also reached, who also saw the accused, and my uncle fell down and was died. Accused also took licensed gun detailed below and went away to southern side. Meanwhile, other villagers, came and I left the above witnesses for the care of dead body of my uncle Abdul Karim and have come to report that 4 unidentified persons murdered my uncle Abdul Karim and later on taken away gun detailed below. We have seen the accused very well on the light of tubelight and will be identified if seen. I produce the photocopy of licence of gun of my uncle Abdul Karim. I am complainant, justice be done." , While hearing the application for grant of bail, it is evident that at the time of commission of offence the Kalashnikov was allegedly used by the culprit. The challan was submitted in the Court of Civil Judge and F.C.M., Khairpur and it was observed by the Court that the offence punishable under section 302, P.P.C. is exclusively triable by the Court of Session and it‑was sent up for trial in the Court of Session. The learned Sessions Judge, Khairpur without examining the point of jurisdiction transferred the case to the Additional Sessions Judge, Khairpur. The mere use of prohibited weapon is sufficient to attract the jurisdiction of Special Court. In view of the case‑ A law cited in the case of Allahdin and 18 others v. The State and others reported in 1994 SCMR 717, wherein their Lordships have held as under:‑‑ For the purpose of deciding the question of jurisdiction, the Court has to rely upon the material which is in the possession of prosecution at the time of presentation of case. Both the Courts below have acted upon the proposition that jurisdiction is to be determined on allegations made in F.I.R. and the case set up by the prosecution. In support reliance is placed on the case of Azhar Hussain and others v. The Government of Punjab and others 1992 PCr.LJ 2308 which is Full Court judgment of 3 Judges of Lahore High Court. In the reported case the point involved was identical inasmuch as it was alleged in F.I.R. that Klashnikov was used but during investigation it was not recovered and on that ground alongwith allegation of mala fides trial by the Special Court was resisted. Contention was repelled and rightly so, on the ground that non‑recovery of Klashnikov could not justify conclusion that the same was not at all used and mala fides were not proved. We are in agreement with view expressed in the reported judgment mentioned above, and further observe that question of jurisdiction can be determined on the basis of F.I.R. and other material which is produced by the prosecution at the time of presentation of the challan. On the basis of that material the Court has to decide whether cognizance is to be taken or not. In the instant case incident is seen by six eye‑witnesses have supported the allegation in F.I.R. about use of Klashnikov like weapon, learned counsel for the petitioner replied in the affirmative. In the circumstances material available with prosecution in this case is sufficient to justify invocation of jurisdiction by the Special Court. " There is another authority cited in case of Azhar Hussain and others v. Government of Punjab 1992 PCr.LJ 2308. Their Lordships have held as follows:‑‑ "There is no dispute that according to the allegations contained in the F.I,R. as also report under section 173 of the Cr.P.C. one of the accused had allegedly used Kalashnikov during the commission of the offence. That being so, the case clearly falls within the mischief of the above reproduced paras of the Schedule. The argument of the learned counsel that as Kalashnikov was not recovered and that none of the petitioners was arrested has hardly any relevance. The jurisdiction of the Court is to be determined on the basis of the allegations contained in F.I.R. and the case set up by the prosecution. The truthfulness or otherwise of the allegations can only be determined at the time of trial after recording evidence. Moreover, mere fact that Kalashnikov had not been recovered can hardly justify the conclusion that it was not at all used." The similar view was taken by Division Bench of this Court in the case of Muhammad Sharif v. The State 1992 PCr.LJ 1219. The same view has. been taken in Criminal Bail Application No. 172 of 2000 (Attaullah alias Atoo v. The State), decided on 9‑10‑2000 by my learned brother Muhammad Ashraf Leghari, J., therefore, the point of jurisdiction is already resolved by the Honourable apex Court in case of Allahdin and others v. The State and others. It is obvious that such offence where the K.K./prohibited weapon is allegedly used in the commission of offence then it attracts the jurisdiction of Special Court. The cognizance taken by the trial Court is without jurisdiction. The trial Court is directed to return the case papers to the concerned police for submitting the challan in Special Court, Suppression of Terrorist Activities. In view of the above legal position, the bail application is dismissed. N.H.Q./R‑32/K Petition disposed of.