On the 26th of November, 1976, the Malir Police submitted a challan to the Special Court against accused Javed Kamran and Yakoob, as well as the two absconding accused, Shaukat and Bashir under section 25, Telegraph Act, and sections 379 and 411, P. P. C. The case was proceeded with before my learned predecessor, late Mr. Justice Jamaluddin H. Ahmad, who recorded the entire evidence in the case and the case was at the stage of arguments when I took over as the Presiding Officer of the Special Court constituted under the Suppression of Terrorist Activities (Special Courts)
Act, 1975, for the Province of Sind, originally all the four accused had been attending the Court but two of them, namely Shaukat and Bashir, absconded during the pendency of the proceedings before my learned predecessor. It would appear that he had even heard the arguments in the case for I find his notes on the file but unfortunately, before he could pass orders be was gathered to his forefathers, much to the regret of his colleagues and many admirers.
2. The point which has to be considered in this case is whether the offence allegedly committed by the accused is one triable by and within the purview of this Court. It may be pointed out that the Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act is a Court of limited jurisdiction and is competent to try only the offences specified in the Schedule to the said Act. If the Special Court finds that the offence which the accused is alleged to have commit--ted is not a scheduled offence, the Court is required to record such opinion and to refrain from trying such an offence or giving a decision as to the guilt or otherwise of the accused in respect of such offence. It has therefore to be seen whether the accused have committed a scheduled offence for the purposes of the aforesaid Act.
3. The allegations against the accused, shortly stated, are that they were caught red banded by a Police party, headed by Inspector Kalbe Baqar, while cutting telephone wires at mile 25 from the telephone lines stretching being the National Highway. By Act LXVII of 1975, the Tele--graph Act, 1885, was amended and among other amendments, sections 25-B to 25-F were added thereto.
The newly-inserted section 25-B created an special offence of theft of telegraph lines and runs as follows :- " 25-B. Theft of telegraph line.----If any person commits theft of telegraph line, copper wire, cable or cable accessory, he shall be punished with rigorous imprisonment for a term which is not less than one year and not more than seven years and also with fine.
Explanation.-In this section, `theft' has the same meaning as in the Pakistan Penal Code (Act XLV of 1860).
4. It was strongly urged by Mr. Muhammad Ali Shaikh, the learned counsel for the accused, that assuming an offence has been committed by the accused, it would fall under section 25-B of the Telegraph Act, for the accusation against the accused is that they committed theft of telephone or 'telegraph wire. Mr. Jalaluddin Baloch, the learned Special Public Prosecutor, on the other hand, submitted that section 25-B of the Telegraph Act should be limited to cases where theft of telegraph or telephone wire was committed from any store or other place, but where telephone or telegraph wires, which were actually in use, were cut or removed, the offence would fall under section 25 of the Telegraph Act, and the necessary intention to tamper with the trans-- mission or delivery of message must be presumed. The essential require--ments of section 25 of the Act are :- (i)Damage, removal, tampering with or touching any battery, machinery, telegraph line, post or other thing whatever, being part of or used in or about any, telegraph or in the working thereof.
(ii)Such action must be done with the intention of----- "(a)preventing or obstructing the transmission or delivery of any message, of (b)intercepting or acquainting oneself with the contents of any message, or (c)committing mischief,.
5. It will be seen that mere tampering with or removal of telegraph or telephone line is not enough.
Additionally, in order to establish an offence under section 25, it must be established that the person removing or tampering with the line did so with any of the intentions e specified above.
Now, in the instant case, there is nothing to indicate that the accused, in stealing and cutting the telephone wires, intended to prevent or obstruct the transmission or delivery of any message. Their intention, it appears, was simply to commit theft a `the wires, which they presumably intended to use in their `Karkhana' in the P. I. B. Colony. It appears from the evidence of Inspector Kalbe Baqar that the accused own a `Karkhana' in the P. I. B. Colony where cooper wire is thinned for commercial purposes. As such the intention and the object of the accused clearly was to use the copper wire, which they were stealing in their `Karkhana'. No doubt, on account of the cutting of the telephone wire by the accused there would necessarily be an interruption and obstruction in the delivery of messages along the tampered telephone line, but the mere fact that this would be the result of the action of the accused, would not necessarily lead to the presumption in the absence of any other evidence, that it was the intention of the accused to prevent or obstruct the transmission or delivery of any message.
6. The law has now made the theft of telegraph wire a special offence punishable under section 25-B of the Telegraph Act. This offence is a non-scheduled offence. I am unable to read in this section any at words limiting its application to thefts other than thefts from telegraph or telephone lines. The words used in this section are clear and un--ambiguous and would apply to all types of thefts of telegraph wire, whether they are from stores, telegraph/telephone lines or any other place.
7. A perusal of the statements of objects and reasons of the Bill to amend the Telegraph Act, 1885, which was subsequently passed as Act LXVII of 1975, discloses that the malicious cutting and theft of telephone and telegraph copper wire by organized gangs has considerably increased all over the country and it was considered that if the malpractice was not checked with a heavy hand it will render the telephone and telegraph communication ineffective and unreliable. Accordingly a new offence of theft of Telegraph wire was constituted which was made punishable with minimum imprisonment of one year and the maximum was fixed at 7 years, as against the maximum punishment of 3 years provided for theft under the ordinary law, As a further deterrent against the stealing of telegraph wire, it was provided that any person who is found to be in possession of, or having under his control, without lawful authority, telegraph line, copper wire, cable or cable accessory of a kind notified by the Telegraph Authority to be generally used by the Pakistan Telegraph and Telephone Department, shall, unless be proves that he has such authority, is to be deemed to have committed the offence punishable under section 25-B.
8. It will thus be seen that the offence of committing theft o telegraph line is quite a distinct offence from an offence under section 25 of the Telegraph Act, and that special provisions are made in regard to the former offence. No doubt, in certain cases it may be possible to establish that a person who has committed theft of telegraph line has also committed an offence under section 25 of the Telegraph Act, but those would be cases where the necessary intention under section 25 is established. In the instant case, as already pointed out, such intention has not been established and on the contrary there would appear to be simply a simple intention to commit theft.
9. For the foregoing reasons, I am of opinion that the offence allegedly committed by the accused is not triable by this Court. It will be open to the prosecution to presecute the accused in respect of an offence of theft of telegraph line or possession thereof before the ordinary Courts. As no scheduled offence appears to have been committed by the accused this Court cannot further proceed in their trial. The accused are on bail. Their bail bonds are ordered to be discharged.