SARDAR MUHAMMAD DOGAR, J.-- A case under sections 302/307/148/149 PPC was registered at Police Station Mustafa Abad, District Kasur, on 2.8.1986, on the statement of Farzand Ali. During investigation, it came to light that the tractor of Nur Muhammad, one of the persons named as accused in the murder case, had been burnt by Muhammad Ashiq etc. A formal FIR under section 435 PPC was registered against them at the instance of Khurshid Anwar, Inspector Police.
2. After completion of investigation, the challan of the murder case was submitted to the court of Magistrate for sending up the same to the Sessions Judge, for trial while te the challan of the accused arrested under section 435 PPC was submitted to the Court of Magistrate, for trial.
3. Muhammad Akram son of Nur Muhammad moved an application (Cr.M.171/T of 1988) before this Court for withdrawal of the case u/s 435 PPC against Ashiq etc. seven person from the court of Magistrate and for entrustment of the same to the court of Session for trial along with the murder case, registered vide FIR No.215 dated 24.8.1986. The petition was allowed vide order dated 4.10.1988.
4. Thereafter, at the instance of the State both the cases were transferred to the Special Court, Punjab, constituted under the Suppression of Terrorist Activities (Special Courts) Act (XV) of 1975.
The learned Special Court, Punjab sent back the case FIR No.195 dated 2.8.1986, under sections 302/307/148/149 PPC to the Sessions Court for trial, as the case was not triable by him, per schedule. However, the Special Court retained the file of case under section 435 PPC for trial, registered vide FIR No.215 dated 24.8.1986 at Police Station Mustifa Abad.
5. Muhammad Ashiq etc. Accused in the said case have filed the Constitutional petition wherein prayer has been made that the case under section 435 PPC pending against them before the Special Court, Punjab, was not triable by the said Court, as only such cases under section 435 PPC are to be tried by the Special Courts, where explosive substance, mineral oil or any product of mineral oil is used for the commission of the offence. For ready reference, clause (iv) of clause (a) of the Schedule is noted below:- "(iv) sections 435,437,438 and 440 if an explosive substance, mineral oil or any product of mineral oil is used for the commission of the offence."
6. The contention of the learned counsel for the petitioners that per allegation levelled in the FIR, the case did not fall within the purview of qualifying clause laid down in the Schedule for trial of the case under section 435 PPC by the Special Court, has not been controverted by learned Advocate General after having gone through the FIR and the relevant papers. That being so, the case State vs. Muhammad Ashiq etc. Under section 435 PPC, of Police Station Mustafa Abad, is directed to be withdrawn from the Special Court, Punjab and is entrusted to the Court of Additional Sessions Judge, who is seized of the murder case.
No orders as to costs.