1992 PLP 287 (MLD)

This revision application riled under section 435/439 read with section 561-A, Cr.P.C. has given rise to an interesting argument, but when the statutory provisions with which it is concerned are examined the decision does not present great difficulty.

2. On 3-4-1991 at about 11-45 p.m. complainant Faisal Rasheed was going from Bahadurabad to Sharafabad. alongwith his relatives Adrian Farooqui, Furqan Farooqui and Ali Ahmad in Car No.F-5925. When they reached near Sharfabad Chowrangi two persons riding on a motor-cycle intercepted the car, which frightened the occupants bf car who mistook them to be the dacoits who wanted to abduct them or to snatch their car. Due to this fear the car was reversed and' then turned towards left side of the service road. However, in the meantime there was firing towards the occupants of the car and the bullets hit Adnan Farooqui and Farqan Farooqui, who sustained serious injuries: Adnan Farooqui succumbed to the injuries. while Furqan Farooqui survived. On 4-4-191 the F.I.R.of this case was lodged at Bahadurabad Police Station (Crime-No.103 of 1991) under section 302m307/34, P.P.C.. The investigation revealed that the present applicants. who are police constables had fired -at Adrian Farooqui and Furqan Farooqui and in doing so they had used their service rifles. After completing the investigation the challan against the applicants was sent to Assistant Commissioner and S.D.M., Ferozabad, who in turn submitted it before Sessions Judge (East) Karachi; for trial. During the pendency of the case an application .was moved on behalf of complainant Faisal Rasheed for sending the case to Special Court (Suppression of Terrorist Activities) Karachi, for want of jurisdiction. This application was heard by learned Sessions Judge in the absence of Advocate for applicants who assed the following order: - "Learned counsel for the complainant has moved application that this Court has no jurisdiction to try the alleged offences as from the possession of the accused an automatic weapon was recovered and such case is exclusively triable by the Special Court (Suppression of Terrorist Activities), Karachi. I have heard the learned counsel for the complainant and the learned D.P.P. for the State. The latter has raised no objection to the grant of this application. Learned counsel for the accused is called absent, though the matter was fixed at 11-15 a.m. and this time was known to the learned defence counsel. After going through the provision contained in para. 4(b) of the ` schedule of the offences of Suppression of Terrorist Activities (Special Courts) Act, 1975 as-amended upto date (vide Gazette of Pakistan Notification, dated 15th March, 1990),I find considerable force in this application and accordingly it is allowed. Let the matter be sent, to the court of learned Special Judge (Suppression of Terrorist Activities), for disposal according to law." This order, dated 27-5-1991 is the subject-matter of the present revision application.

3. I have heard .Mr. Jawaid Haider Kazmi, learned counsel for the applicants and Mr. Shaikh Aziz-ur-Rehman, learned counsel for the State. The latter has not supported the impugned order.

4. The learned counsel for the applicants has referred to several points but eventually confined his arguments in the main to the following contentions: - (i) That the impugned order was passed by Sessions Judge in the absence of Advocate for applicants in complete disregard of the provisions contained in rule 6, Part M, Chapter VII of the Federal Capital and Sindh Courts Criminal Circulars, which is statutory in nature. (ii) That the Sessions Judge had no powers to transfer a case from his file to the file of a Judge, Special Court (Suppression of Terrorist Activities) Karachi, under section 528, Cr.P.C., as the latter is not subordinate to a Sessions Judge within the meanings of section 528, Cr.P;C. (iii) That the offence with which the applicants are charged, not being a scheduled offence' within the meanings of section 2(b) of the Suppression of Terrorist Activities (Special Courts) Act, 1975, its transfer to that Court and cognizance taken by it is coram non judice.

5. On the first, question whether the order passed by learned Sessions Judge in the absence of counsel for applicants had no legal sanctity, it is urged on behalf of applicants that the same was passed in complete disregard of the provisions contained in Chapter VII, Part-I of the Federal Capital and Sindh Courts Criminal Circulars, which provides that an Advocate at State expense is to be engaged on behalf of accused in a case inviting capital punishment (like the one under consideration), if the accused is unable to do so. In the present case the applicants had engaged an Advocate but on the relevant date their Advocate was absent and if the learned Sessions Judge wanted to proceed with the case the proper course was to afford an opportunity to applicants to engage, another Advocate or to provide them the services of an Advocate at State expense. The cases of Abdul Aziz and another v. The State, reported in 1984 PCr.IJ 530, Niaz Ahmad v. The State, reported in 1984 P.Cr.LJ 1054, and Muhammad Waqar v. The State, reported in 1991 P.Cr.LJ 197, are guiding authorities on this point. Undoubtedly the Sessions Judge had powers to pass routine orders like granting of adjournments, etc. in such cases in the absence of Advocate of accused but an order of this nature causing serious prejudice should have been passed after providing them the services of an Advocate at State expense, if they were unable to engage other Advocate and such exercise was to be made well within time to enable such Advocate to study necessary documents and law points. There is, therefore, good deal of force in the contention raised on behalf of applicants that the undue haste demonstrated by the learned Sessions Judge was in clear violation of the Sindh Criminal Courts Circulars which have got statutory force. The impugned order is thus liable to 8 be set aside on this score alone.

6. Coming now to the second question, whether the Sessions Judge is empowered to transfer a case pending on his file or on the file of 'any of the Courts subordinate to him, to the Judge, Special Court (Suppression of Terrorist Activities), under the provisions of section 528, Cr.P.C.; it must straightaway be conceded that he is not competent to do so. The Judge, Special Court (Suppression of Terrorist Activities) is not a Court subordinate to a Sessions Judge within the meaning of section 528, Cr.P.C. At least I cannot find anything in section 528, Cr.P.C. thereby enlarging its scope. Section 4-A of the Suppression of Terrorist Activities (Special Courts) Act, 1975, alone empowers the Government to transfer cases, but that too from one Special Court to other Special Court. 7: However, it may be added that section 4 of the Suppression of Terrorist Activities (Special Courts) Act, 19'15, confers exclusive jurisdiction to Special Courts in respect of `scheduled offences', and if any such case is sent up before ordinary Criminal Courts through mistake then such Courts, either directly or through the Sessions Judge concerned, would be competent to send back such cases to concerned Special Courts for want of jurisdiction, and such an exercise will not be equated with a transfer of a case within the meanings of section 528, Cr.P.C. Conversely the Special Courts are competent to refer back the cases to ordinary Criminal Courts when it is found that the accused have not committed `scheduled offence' within the meanings of section 2(b) of the Suppression of Terrorist Activities (Special Courts) Act, 1975.

8. It is the third contention urged by Mr. Kazmi on behalf of applicants that has great importance. A bare perusal of paragraphs (iii) to the Schedule of section 2(b) of the Suppression of Terrorist Activities (Special Courts) Act, 1975, makes it clear that the offence under sections 302 and 307 P.P.C. will be a `scheduled offence', if committed in the course of the same transaction, in which an offence specified in paragrapahs (b) and (c) is committed. Since the determination of this question hinges on the interpretation of paragraphs (b) and (c) of the Schedule, it would be convenient to read them together. Paragraph (b) reads as follows: - "Any offence punishable under the Explosive Substances Act, 1908 (XI of 1908)." Likewise paragraph (c) reads as follows "Any offence punishable under the Arms Act, 1878 (XI of 1878), or any offence punishable under any of the following sections of the West Pakistan Arms Ordinance, 1965 (W.P. Ordinance No.XX of 1965), namely, sections 8, 9 and 10, 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." ' 9. -It is alleged that the Applicants who are police constables had used their service rifles while committing the offence under section 302/307/34, P.P.C. The use of `automatic rifles' in the commission of offence under section 302/307/34, P.P.C. alone, will not make it a `scheduled offence' unless it is shown that they were unlicensed, thereby bringing the case within the mischief of sections 8, 9 and 10 of the Arms Ordinance, 1965. This important ingredient making the case under section 302/307/34, P.P.C. as `scheduled offence' is, therefore, lacking in this case.

10. The Suppression of Terrorist Activities (Special Courts) Act, 1975, was never a welcome addition to the statute book. Considerable hue and cry attended its birth and it was due to this fact that this Act remained as a dormant piece of legislation for a considerable long time. The jurisdiction of the Special Courts constituted under this Act is restricted to the offences shown in the Schedule and, therefore, the ordinary. Criminal Courts should not readily surrender their jurisdiction to Special Courts. Thus the order passed by learned Sessions Judge dated 27-5-1991, being illegal is set aside. The case will go back to Sessions Judge (East), Karachi, who shall either hear it himself or make it over to any of the Additional Sessions Judge working in District East for disposal according to law.

11. In the result the revision application is allowed, H.Q./M-1531/K Revision petition accepted