1997 P Cr (PLP)

MIAN MUHAMMAD AIMAL, J.

The appellant was convicted in case F.I.R. No.223, dated 13-6-1991, Police Station Mandan, Tehsil and District Bannu by the learned Sessions Judge, Bannu vide his judgment, dated 28-8-1994 and sentenced him to life imprisonment under section 302/149, P. P. C. to 7 years' R. I. with a fine of Rs.10,000 or in default of payment thereto to suffer one year's S. I.-under section 324/149, P. P. C. to 7 years' R,1. and to pay Arsh equal to 1/5 of the half Diyat under section 334, P.P.C. read with section 337, P.P.C. and to 3 years' R.I. under section 320/149, P.P.C. All the substantial sentences were to run concurrently while the sentence in default of fine was to run consecutively after substantive sentences. The benefit of section 382-B, Cr.P.C. was also given to the appellant.

2. At the very outset learned counsel for the appellant submitted that in view of the statement of injured Shameet Khan and Sher Bahadur recorded under section 161, Cr.P.C. on the same very day to the effect that the accused party fired at the complainant and others with their klashnikovs causing the death of Mumboot Khan and injuring him, Gul Shah Keyaz and Muhammad Nawaz, they committed the scheduled offences within the meaning of section 4 of Suppression of Terrorist Activities Act, 1975 and as such were exclusively triable by Special Court constituted under the Act ibid and the trial conducted by the Sessions Judge was without jurisdiction. Reliance was placed on 1994 SCMR 717 and unreported judgments of this Court in Muhammad Ayub and others v. The State Criminal Appeal No.20 of 1992, decided on 20-3-1995 and Nasib Khan v. The State Criminal Appeal No. 24 of 1992, decided on 3-11-1994. Learned counsel for the State assisted by learned counsel for the complainant could not substantially controvert the proposition.

3. Section 4 of the Act ibid provides that the scheduled offences specified in the Schedule of the Act ibid are exclusively triable by a Special Court. For convenience sake the paragraphs of the schedule relevant for this case are reproduced below: -- "(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. (c) any offence punishable under the Arms Act, 1978 (XI of 1978), or any offence punishable under any of the following sections or 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-III rifle or any other type of assault rifle." In view of the above it is evident that in this case the offence specified in paragraphs (ii)(a) and (c) have been committed in the same transaction and in combination with each other.

4. Perusal of the record shows that an injured witness namely Shahmeet Khan and Sher Bahadur in their statements recorded under section 161, Cr.P.C. stated that accused were armed with klashnikovs with which they fired at the complainant party, causing death of the complainant and injuring the other three. Since before the submission of the challan, the material available with the prosecution reflected that klashnikov was used as weapon of offence, the accused thus committed the scheduled offence, which were triable by the Special Court. Under section 5 of the Act the Officer Incharge of the police station after completion of investigation had to submit the challan before the Special Court who could only take cognizance of the case. In this aspect the observations made in case of Allah Din and others v. The State 1994 SCMR 717 can be conveniently quoted:-- "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 and on our query whether eye-witnesses have supported the allegations in F.I.R. about use of Klashnikov like weapon, learned counsel of the petitioners 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. Other contentions raised by the learned counsel for the petitioners, as mentioned above, can be properly appreciated only when evidence is recorded in the trial Court and witnesses are cross-examined. When that stage comes, the law will take its own course and it is open to the parties to take steps as are permitted by the law. For the present we are of the view that no flaw or legal infirmity is pointed out in the judgment of the High Court warranting interference. Leave is refused and the petitioner being devoid of the merits, is hereby dismissed. " This judgment has been followed by this Court in Criminal Appeal No.24 of 1992 and Criminal Appeal No.20 of 1992, where the impugned judgments of the Sessions Judges were set aside and the cases were remanded to the Special Court for retrial in accordance with law. Consequently we, accept this appeal, set aside the impugned judgment of the Sessions Judge, Bannu, whereby he convicted and sentenced the appellant and direct the prosecution to submit the challan before the Special Court within a week and produce the appellant as undertrial prisoner before the Special Court constituted under the Act, ibid for trial de novo in accordance with law. The record of the case be immediately sent to the concerned quarters. N.H.Q./2064/P Appeal accepted.