KHALIL-UR-REHMAN RAMDAY, J---This is an appeal by Nasir Hussain appellant against the judgment dated 24-1-19891 passed by the learned Special Court constituted under the Special Courts for Speedy Trials Act No.XV of 1987 whereby the said appellant has been convicted under section 411 P.P.C. And has been sentenced to suffer three years' R.I. And to pay a fine of Rs.5,000 or in default thereof to undergo a further R.I. For one year.
2. Proceedings got initiated on the statement of one Amjad Iqbal (complainant PW.3) who had alleged that he and his cousin Javed Iqbal (abductee PW.4) were running the business of sale and purchase of tractors at Bahawalpur and they also had a house in Dera Ghazi Khan; that they had developed business relations with one Haji Nur Din (accused) who invited the aforesaid complainant and the alleged abductee to Dera Ghazi Khan for purchase of tractors; that the said two PWs met Haji Noor Din and the other four co accused including the present appellant at Al- Ghazi Tractor Factory from where they all came to the house of the complainant at about 1.30 p.m.
That after catering the said house, the aforesaid accused persons closed the doors, took out pistols snatched Rs.1,300 in cash and the keys of a Suzuki Car (Ex.P.5) from laved Iqbal (PW); and also grabbed a Seiko watch of Amjad Iqbal (PW); that the hands, feet and mouth of Amjad Iqbal (PW) were tied with a cloth by the accused whereas Javed Iqbal (PW) was .Given an injection which rendered him unconscious and thereafter the accused persons carried away Javed Iqbal PW in the aforesaid Suzuki Car (P.5) after telling Amjad Iqbal (PW) that Javed Iqbal would be let off only if five lacs of rupees were paid within three days otherwise the said abductee would be murdered.
3. This statement was recorded as F.I.R. No.151/88 dated 18-10-1988 at Police Station Civil Lines, Dera Ghazi Khan.
4. Exercising powers under section 5(1) of the aforesaid Act (XV of 1987) he Government of Punjab directed the trial of this ease by the learned Special Court No.XI at Dera Ghazi Khan.
5. The learned trial Court charged the five accused persons, including the present appellant, with commission of offences under section 395/397/36-]/148/149 P.P.C. But at the trial all the eye- witnesses including the complainant and the alleged abductee turned hostile and refused to support the prosecution.
6. Consequently, all the aforesaid five accused persons were acquitted of all lie above-mentioned charges levelled against them. The learned Special Court, however, found that prosecution had succeeded in proving the recovery of the aforementioned stolen Suzuki Car (P.5) from the possession of Nasir Hussain appellant and accordingly found him guilty under section 411 P.P.C. And punished him as above-described.
7. A question has arisen as to whether the learned Special Court was possessed of the jurisdiction to convict and sentence the appellant for an offence under section 411 P.P.C.
8. The Special Courts constituted under Act XV of 1987 are not Courts of plenary jurisdiction. They are the creation of a special law and have to operate within the limited sphere permitted by the said special enactment.
9. Subsections (1) and (2) of Section 5 are the provisions which confer jurisdiction on the Special Courts to try cases. A perusal of these two provisions would indicate that two conditions must stand satisfied before a Special Court can assume jurisdiction to try a case. These two conditions are:-
(a) the case must be relating to an offence; and
(b) there must be an order passed by the Provincial Government directing trial of such a case by the Special Court.
10. The expression 'offence' is defined in section 2(c) of the said Act and means; "an offence SPECIFIED IN THE SCHEDULE which in the opinion of the Government is gruesome, brutal and sensational in character or shocking to public morality or has led to public outrage or created panic or an atmosphere of fear or anxiety amongst the public or a section thereof."
11. And the offences specified in the Schedule are offences punishable under sections 302, 303, 396 and 397 of the Pakistan Penal Code or any other offence committed in the course of the same transaction in which any of the said offence is committed or in addition to or in combination with such offence.
12. Thus, before an offence becomes triable by a Special Court, it has to be an offence specified in the schedule i.e. It has to be either an offence punishable under section 302, 303, 396 or 397 of the P.P.C. Or an offence committed in the course of the same transaction etc. Then such an offence has to fall in any of the categories mentioned in section 2(c) of the Act meaning thereby that it has to be either gruesome or brutal or shocking etc. And finally that-having satisfied all these conditions. There has to be an order by the Provincial Government, directing the trial of such an offence by a Special Court order section 5(1) or 5(2) of the said Act. It is only thereafter that a Special Court gets clothed with jurisdiction under section 5(4) to convict and punish a person for such an offence.
13. In the present case, the offence under section 411 P.P.C. Is admittedly not one of the four offences mentioned in the Schedule. Nor can the offence under section 411 P.P.C. Be said to have been committed in the course of the said transaction etc. In which any of the aforementioned four offences i.e. Offences under section 302/303/396 or 397 P.P.C. Was committed because the learned Special Court, by acquitting all the accused persons of the charge u/s 397 P.P.C. Has itself declared that the offence under section 397 P.P.C. Was not committed at all. And finally, there was no order passed by the Provincial Government under section 5(I) or 5(2) of the Act directing trial of the offence under section 411 P.P.C. In question by the learned Special Court.
14. Thus, it appears that the trial, the conviction and the punishment of Nasir appellant by the learned Special Court was an act without jurisdiction.
15. Certain Special Courts created by certain special enactments for trial of certain specified offences do convict and punish the accused persons found guilty of offences other than the specified offences. But then such special Courts are specifically clothed with such a power by the provisions of the relevant statutes. Instances of such Provisions could be found in section 24 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, section 20 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, section 17 of Qazf (Enforcement of Hadd)
Ordinance, 1979 and Section 6(4) of the Pakistan Criminal Law Amendment Act of 1958. Needless to say that no such comparable or analogus provision exists in Act XV of 1987.
16. In view of what has been stated above, we are of the opinion that the learned Special Court constituted under Act XV of 1987 had not the power to convict and punish the appellant for the offence punishable under section 411 P.P.C. In the present case and we hold accordingly.
17. Consequently, the conviction and punishment of Nasir Hussain alias Imdad Hussain appellant under section 411 P.P.C. By the learned Special Court No.XI, Dera Ghazi Khan, the impugned judgment dated 24-1-1987 and the trial to the extent aforesaid arc set aside as emanating from a Court not of competent jurisdiction. The appellant shall be set at liberty forthwith, if not required in any other case.
18. Criminal Appeal No.29 of 1989 is thus accepted and is disposed of in the above terms.
S.A./N-289/L Acquittal ordered.