1996 P Cr (PLP)

CH. KHURSHID AHMAD, J.

The petitioner has impugned the order of Judge Suppression of Terrorist Activities Court, Multan Division, Multan whereby the application made on behalf of the accused before the said Court for sending back the challan of the case for trial before the Court of ordinary jurisdiction for trial was dismissed. It has further been prayed that the said Court has illegally assumed jurisdiction in case F.I.R No.406/94 registered at Police Station Kassowal District Sahiwal on 24-12-1994 under section 324/148/506/ 337-F(II)/149, P.P.C.

2. The facts leading to the writ petition precisely are that F.I.R. No.406/94 was registered at Police Station Kassowal on 24-12-1994 on the basis of written application made by Muhammad Aslam son of Babu Khan for the alleged occurrence of 23-12-1994 in Chak No.41/14L, a village ten miles in the North-West of the Police Station. The complainant had alleged that on 23-12-1994 at about 4 p.m. they were present in their Mare Breeding Square and were loading cut cotton plants on their trolley when Sardar, armed with .12 bore gun, Mukhtar, his brother, armed with Barchhi, Mukhtar son of Amanat Ali armed with .12 bore guts, Amanat Ali armed with mauser and Sarwar armed with revolver came there accompanied by an unknown 6th culprit who was holding a Klashnikov in his hand. They had formed unlawful assembly with the common object of committing murder and dacoity and by saying that they shall not spare the lives of all three i.e. Muhammad Aslam, complainant, Abdul Jabbar his brother and Zulifiqar Ali alias Bhutto, his cousin, started firing indiscriminately. Thereafter, the occurrence was described to have taken place for about 15/20 minutes which attracted the people of the village to the spot, and the accused ran off, on seeing them, towards the land of Sardar accused. The motive of occurrence allegedly was the previous theft case of cotton crop got registered by Sardar accused against Zulfiqar.

3. It has been contended by the learned counsel for the petitioner that the allegation that one of the accused, being armed with klashnikov was found false by the Investigating Agency and no such klashnikov was recovered: even a klashnikov be used and recovered the jurisdiction of the Special Court shall not be attracted unless the provisions of Arms Ordinance, 1965 were not attracted and that the allegation in F.I.R were not the only criteria but the material collected by the Investigating Officer was also to be seen while determining the jurisdiction. No such evidence was available in the present case.

4. The learned A.A.-G. opposed the writ petition and submitted that the question of jurisdiction has been rightly determined by the Special Court and the present writ petition was not maintainable.

5. We have considered the arguments of the learned counsel for the parties and have given our anxious consideration to the facts and points of law involved. Though unknown accused was alleged to have been armed with klashnikov but no specific firing has been attributed to the said unknown person and that the allegations made in the F.I.R were looked into by the Investigating Officer. The case was initially investigated by Ahmad Nawaz Zafar, S.-I. who had collected two empties of .12 bore gun. .12 bore empties of 222 were produced by the complainant party before the Investigating Officer which, according to them were picked by their children. On 31-12-1994 a revolver, 30 bore was recovered at the instance of Nasrullah P.W Basharat accused was arrested on 31-12-1994 and a gun .12 bore was recovered from his possession. The complainant produced two Barchhis and Dangs which were not recovered at the instance of any accused person. The investigation was transferred and was entrusted to D.S.P/S.D.P.O., Chicha Watni who arrested Amanat Ali, Mukhtar son of Fateh Muhammad and Sarwar on 3-1-1995 and they all were declared innocent and he was of the opinion that only .12 bore gun was fired at the spot.

6. The investigation was further transferred to Syed Shaukat Ali Hashmi, Addl. S.P., Sahiwal who also found Amanat, Mukhtar and Sarwar accused as innocent. He further was of the opinion that only Sardar was armed with a gun who had fired the same. He was of the opinion that Mukhtar and Basharat accused were empty-handed who were present at the spot and no klashnikov was in the hand of any accused as mentioned by the complainant. The licence of gun in the name of Sardar accused was taken into possession. As the said gun was recovered allegedly from Basharat accused and case F.I.R. No.422/95 under section 13/20/65, Arms Ordinance was registered against him, the Investigating Officer proceeded to get case F.I.R. No.95/95 registered against Sardar accused under section 16/20/65, Arms Ordinance He was arrested and committed to judicial custody. Report under section 173, Cr.P.C. was prepared on 12-4-1995 by the S.H.O and was sent to Court. It is admitted that there was protracted litigation between the parties and four cases were registered against the complainant party of which three had been sent up to the Court for trial; seven cases were registered against accused party of which three had been sent up to the Court.

7. We have also perused the report under section 173, Cr. P.C. In the said report it has been categorically stated that no Klanshnikov was seen or used at the time of alleged occurrence. None was recovered by the Investigating Agencies and only three accused Sardar Muhammad alias Dara, Mukhtar Ahmad son of Amanat Ali and Basharat Ali son of Ghaus were challaned. The other accused were found innocent and were not challaned.

8. The jurisdiction of Special Court under Act XV of 1975 was determined by the Schedule annexed thereto. Paragraph (c) of Schedule reads as under:-- "(c) any offence punishable under the Arms Act, 1978 (XI of 1978), or any offence punishable under any of the following sections of the West Pakistan Arms Ordinance, 1965 (West Pakistan 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-111 rifle or any other type of assault rifle."

9. To determine the question of jurisdiction the Court has to rely not only on the contents of F.I.R, but also on the material which was in possession of the prosecution at the presentation of the case in Court, which in our view means the material appended with report under section 173, Cr.P.C. In report under section 173, Cr.P.C., in the present case, the result of the investigation is mentioned and the allegation of the complainant as made in the F.I.R had been controverted by the findings of the Investigating Officer and no material has been appended with the said report which could attract the provisions as contained in the Schedule annexed to Act XV of 1975 as, according to the result of the investigation and the report under section 173, Cr.P.C. no arm which could attract the provisions of Arms Ordinance, 1965 was found to have been used. This is without prejudice to the fact that no recovery of any arm such as klashnikov was made.

10. The question of jurisdiction of the Special Court was examined by a Full Bench of Lahore High Court in Azhar Hussain and others v. Government of Punjab and others 1992 PCr.LJ 2308. Reference was made to clause (a)(ii)(a) of the Schedule which reads as under:-- "(ii)(a) section 302 or section 307, if committed in the course of the same transaction in which an offence specified in this paragraph or paragraphs (b) and (c) is committed, or in addition to or in combination with such offence. " Clause (c) has already been reproduced above. In the case under reference accused had allegedly used klashnikov during the commission of the offence. Report under section 173, Cr.P.C. also contained the allegation that one of the accused had allegedly used klashnikov during the commission of the offence. The Court proceeded to observe: " ....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 the Klashnikov had not been recovered can hardly justify the conclusion that it was not at all used." 10-A. A report under section 173, Cr.P.C. was very material for the purpose of framing the charge and the Court if, after perusing the police report or the case may be, the complaint and all other documents and statements filed by the prosecution, be of the opinion that there is ground for proceeding with the trial of the accused it was obliged to frame a charge. Their Lordships in the Full Bench in the said case took proper notice of the same while observing that:-- "There is no dispute that according to the allegation contained in the F.I.R as also in the report under section 173 Cr P C one of the accused had allegedly used klasnhnikov during the commission of the offence". (Underlining is ours). The above view of the Full Bench of Lahore High Court in Azhar Hussain's case was approved by their lordships in the Supreme Court in Allah Din and 18 others v. The State and another 1994 SCMR 717 and expressed their agreement with the above view in the following words in paragraph 6 of the said report:-- "

6. 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 above-cited cases the Courts also took into consideration the allegations as contained in the report under section 173, Cr.P.C. This would necessarily mean that the result of the investigation cannot be ruled out of B consideration while deciding the question of jurisdiction. Report under section 173, Cr.P.C. is supposed to contain the allegations made and the gist of the investigation and the opinion of the framer thereof.

12. In view of the above the report under section 173, Cr.P.C. was of prime importance. The wisdom of the Superior Courts is very clear. The structure of our Society is such that a complainant should always be taken with apprehension that he may be involving innocent person and levelling false and preposterous allegations. In the present case it is clear that the allegation of the presence of a klashnikov in the hand of the accused was definitely made with the view of taking away the case from the jurisdiction of the Court of ordinary jurisdiction. That is the stage where their lordships were of the view that the material placed before the Court alongwith the allegations in the F.I.R. were material for determining the question of jurisdiction.

13. Taking into consideration the allegations made in the F.I.R and the material placed before the Court and the report under section 173, Cr.P.C we are of the view that the result of the investigation that there was no klashnikov in the hand of anybody and the same was not used notwithstanding the recovery-or C otherwise of the same we, while placing reliance on the above-quoted reports accept the writ petition and declares that the order of the Special Court passed on 8-4-1996 in deciding the question of jurisdiction in its own favour was without lawful authority and without jurisdiction.

14. Resultantly the writ petition is accepted and it is ordered that the challan of case F.I.R. No.406/94 registered at Police Station Kassowal, District Sahiwal on 24-12-1994 shall be remitted to the Court of ordinary jurisdiction who shall proceed to try the same in accordance with law. N.H.Q./S-43/L Petition allowed.