1993 P Cr (PLP)

Date of hearing: 24th May, 1993. The relevant facts are that case F.I.R. No.266, dated 5-6-1990 under sections 148, 302, 307, 436, 452/149, P.P.C. was registered at Police Station Chunian, District Kasur on the report of Fazal Karim against Muhammad Iqbal, Abdul Hafeez, Abdul Sami alias Nanna, Abdul Shakoor, Mahfooz and Sultan Muhammad for the murder of Nisar Ahmad deceased on 5-6-1990.

2. The prosecution case was that Muhammad Iqbal etc. carrying Chhuris, hatchets, guns and Klashnikov broke open the door of Fazal Karim complainant and forcibly entered into his house and caught hold of his son Nisar Ahmad deceased, caused him injuries with Chhuris, Butt of Klashnikov and also fired at him resulting in his death. They were also alleged to have set on fire the complainant's house with kerosene oil.

3. During investigation, the police came to the conclusion that no klaslinikov had been used during the occurrence and submitted the challan in the Court of Session. Fazal Karim complainant moved an application in the Special Court (Suppression of Terrorist Activities of Punjab, Lahore) for issuing a direction to the police to submit challan in his Court as the said Court only was competent to take cognizance of the case under paragraph (a)(iv) of the Schedule attached to the Act XV of 1975. The learned Special Court called a report from the learned Assistant Advocate-General who requisitioned the challan from the Sessions Court and submitted the same before the Special Court because under section 5(3) of the Suppression of Terrorist Activities Act, 1975 the Special Court could directly take cognizance of the case without the case being sent to it under section 190, Cr.P.C.

4. Muhammad Iqbal etc. have filed this petition under section 561-A, Cr.P.C. challenging the assumption of jurisdiction by the learned Special Court on the grounds that since during investigation Klashnikov was not found to have been used in the alleged occurrence and that kerosene oil was not a mineral oil as mentioned in clause (iv)(a) of the Schedule issued under section 2(b) of the ibid Act the case was not triable by the Special Court. In support of his contention, he has referred to the, opinion of the learned Advocate-General to the effect that Special Court was not competent to try the case.

5. I have heard the learned counsel for the petitioners and the learned Advocate-General at length.

6. Item (ii)(a) of the Schedule to Suppression of Terrorist Activities Act, 1975 provides that a case under section 302 or 307, P.P.C. shall be triable by the Special Court if committed in the course of the same transaction in which an offence specified in that paragraph or paragraph `B' and `C' is committed, or in addition to or in combination with such offence. Clause (iv) of the Schedule provides that an offence under section 436, P.P.C. shall also be triable by the Special Court if an explosive substance, mineral oil or any product of mineral oil is used for the commission of the offence. Clause 'C' of the Schedule provides that any offence punishable under sections 8, 9 and 10 of the West Pakistan Arms Ordinance, 1965 shall also be triable by a Special Court 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. According to the learned counsel for the petitioners, the Investigating Agencies had found that the Klashnikov had not been used in the commission of the alleged offence and further that there is no positive finding about the use of mineral oil for setting on fire the complainant's house. In the wake of these circumstances the Special Court could not assume jurisdiction and try the case.

8. The complainant has categorically alleged in the F.I.R. that one of the accused was carrying a klashnikov at the relevant time. Section 8 of the Arms Ordinance, 1965 imposes a prohibition on going armed without licence with a weapon like klashnikov, a G-III rifle or any other type of assault rifle. Only use of klashnikov or automatic weapon in the occurrence was not necessary for conferring jurisdiction on the Special Court to try the offence if committed in combination with an offence under section 302; P.P.C. This point was considered in Bilal Hussain v. The State P L D 1991 Lah. 346 and Azhar Hussain and others v. Government of Punjab and others 1992 P Cr. L J 2308 (F.B.) and it was observed in the latter case that jurisdiction Pf the Court is to be determined on the basis of the allegations contained in the F.I.R. and the case set up by the prosecution and that the truthfulness or otherwise of the allegations could only be determined at the trial after recording evidence.

9. The threshold of the door of the complainant's house was found burnt during investigation and the questions whether or not kerosene oil was used for this purpose and whether kerosene oil is an explosive substance, mineral oil or any product of mineral oil can be determined by the learned trial Court.

10. In these circumstances, I do not find any illegality in the assumption of the jurisdiction by the learned Special Court. Consequently, the petition is dismissed. The learned counsel may urge the above proposition before the learned trial Court at appropriate stage. N.H.Q./M-1070/L?????????????????????????????????????????????????????????????????????????????? Petition dismissed.