' SH. KHIZAR HAYAT, J.---Muhammad Shafiq, Abdul Rashid, Muhammad Asghar, Ghulam Nabi and Ahmad Bakhsh have filed this appeal against the order, dated 5-8-1990, by Special Court, Bahawalpur constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975, (hereinafter called, the Act, XV of 1975), convicting them under section 365-A, P.P.C. And sentencing them to 14 years' R.I., and a fine of Rs,90,000 each or in default thereof to further undergo 4 years' R.I. It may be mentioned that Muhammad Khan (absconder) was also convicted and sentenced in absentia vide the same order.
2. Having heard the parties, we have found the trial to be suffering from illegalities consequent whereupon we are remanding this case for retrial, hence there is no need to give facts in detail or enter into merits of the case.
3. The case was originally registered under section 365, P.P.C. At Police Station Saddar Rahimyar Khan, vide F.I.R. (Exh. PA.) on 18-2-1990 at 7-30 a.m., by S.I. Shahbaz Hussain (P.W.10) at the instance of Jamal Din, complainant, who stated that his cousin Muhammad Yamin P.W. Was abducted from his factory for ransom on .The same day in a car by unidentified accused in the presence of complainant and Faqir Muhammad P.W. On 11-3-1990, the abductee was recovered from the Dera of Khuda Bakhsh of Chak No,108 by the police. The appellants were arrested and arrayed in track/facial identification parade and were identified by the P.Ws. After usual investigation the appellants were challaned to Court.
4. The appellants were charged under sections 364 and 365-A, P.P.C. To which they pleaded not guilty. The prosecution produced 12 P.Ws. To prove its case and the appellants denying the circumstances appearing against them, when examined, under section 342, Cr.P.C. Produced 13 witnesses in their defence. Learned trial Court convicted and sentenced the appellants, as indicated above. Hence this appeal.
5. In the first place, separate charge framed against each appellant by the trial Court/Special Court constituted under section 3 of the Act, 1975, bears the heading "Offence under section 364/365-A". Jurisdiction of the Special Court is determined by section 4 of the Act XV of 1975, which says that "Notwithstanding anything contained in the Code, the scheduled offences shall be exclusively triable by a Special Court" and that "if in the course of a trial before the Special Court, the Court is of opinion that any of the offences which the accused is alleged to have committed is not scheduled offence, the Court shall record such opinion and try the accused only for such offence, if any, as is a scheduled offence". Section 365-A, P.P.C. Is a scheduled offence but section 364, P.P.C. Is not. The words `only for such offences' occurring in the section, to our minds, refer to the `scheduled offences' and not to other (unscheduled) offences. So the Special Court/trial Court has no jurisdiction to try the offence under section 364, P.P.C. With which the appellants are charged. Obviously, therefore, the trial of the trial of the appellants under section 364, P.P.C. By the Special Court is wholly without jurisdiction. It appears that the objection about jurisdiction was raised before the trial Court/Special Court, which seems to have ignored it, as is apparent from para.16 of the impugned judgment, by observing that section 4 of the Act XV of 1975 "gives ample power" to the Special Court to try the offences which are not "scheduled offences". The construction placed on section 4 by the learned trial Court is not correct. A Divison Bench of this Court in its judgment, dated 9-3-1991, passed in Cr. A. S. C. (Terrorist) No,3 of 1990/BWP, had even earlier pointed out to the Special Court that it has no jurisdiction to try offences other than the scheduled offences. The observation reads:- "the language used in section 4 reproduced above, will show that since the offences under sections 216-A, 365 and 411, P.P.C., which the accused/appellants were alleged to have committed, were not the scheduled offences, therefore, the trial Court was obliged to record such opinion and try the accused only for such offences, if any, as is a scheduled offence. Strangely enough, the Presiding Officer unmindful of the mandatory requirement of law not only failed to record his opinion but also charged, tried and convicted the accused/appellants under sections 216-A, 365 and 411, P.P.C., though the same were not the scheduled offences."
6. The charges framed by the Special Court particularly against Abdul Rashid, Ghulam Nabi and Ahmad Bakhsh (appellants) are grossly defective as they do not indicate to the accused/appellants that they faced trial for the offence under section 365-A, P.P.C. i.e, abduction for ransom yet they were convicted thereunder. The charges are reproduced below for convenience of reference:-- Charge-sheet qua Abdul Rashid.
"That you on the direction of Muhammad Sadiq accused and with help of other accused, Muhammad Asghar, Ghulam Nabi and Ahmad Bakhsh kidnapped Muhammad Yameen and threw him in a Suzuki Car outside the factory owned by Muhammad Yameen abductee and, therefore, you had committed an offence punishable under sections which is within the jurisdiction and cognizance of this Court."
Charge-sheet qua Ghulam Nabi.
"That you alongwith your other co-accused forcibly dragged Yameen into the car and further recovery of pistol and eight cartridges from the "Dab" of your Chaddar was made by the police, and, therefore, you had committed an offence punishable under sections which is within the jurisdiction and cognizance of this Court."
Charge-sheet qua Ahmad Bakhsh.
"That car bearing No,1699-RND was recovered from you and you forcibly with other accused kidnapped Yameen abductee and, therefore, you had committed an offence punishable under section which is within the jurisdiction and cognizance of this Court."
It is held in M.E. N. Rewail's case (PLD 1957 SC (Pak.) 257) by the Supreme Court that when the charge does not give full notice to the accused of the I allegations/charge then it vitiates the whole trial. Respectfully following the dictum we hereby set aside the conviction and sentence of the appellants and remand the case for retrial to the Court concerned.
7. We are alive to the fact that when a case is remanded for retrial it ordinarily is sent to some other Court but here, there is no other Court constituted under the Act, 1975, therefore, we leave it for the parties to move the Government concerned for its transfer if they are so advised.
8. Before parting with this judgment, it is pointed out that we have not entertained the prayer of appellant for granting bail to them. But they shall be at liberty to move the trial Court for the purpose who shall earnestly consider such prayer if made keeping in view the period of detention of the accused/appellants.
9. The appeal stands disposed of accordingly.