' The relevant facts are. That case F.I.R. No,268 dated 7-6-1990 under sections 148, 436, 452/149, P.P.C. Was registered at Police Station Chunian, District Kasur on the report of Muhammad Akbar.
According to him on 5-6-1990 when he had gone to see his relatives Abdul Ghafoor Khan, Mehdi Hassan, Zulfiqar Ali, Muhammad Akram, Muhammad Ayub, Abdul Sattar and Nisar Ahmad etc. Carrying lethal weapons trespassed into his house, took away his ornaments and set on fire his house and garrage.
2. After completion of investigation, the police submitted challan in the Court of Judicial Magistrate, Chunian against. Abdul Karim, Muhammad Younis etc. ' The petitioners applied for bail to the said Court. Before he could dispose of the bail application, Shamim-ur-Rehman filed Criminal Miscellaneous No,233/T of 1990 in the High Court in case F.I.R.
No,267/90, dated 7-6-1990 under sections 148, 436, 452/149, P.P.C. On the ground that the Judicial Magistrate lacked jurisdiction to proceed with the case as it was exclusively triable by the Special Court, Suppression of Terrorist Activities. The said application was disposed of with a direction to the Judicial Magistrate concerned to first decide the question of his jurisdiction in the matter. The learned Judicial Magistrate vide order, dated 25-9-1990 held that he was possessed of jurisdiction to try the case and granted bail to the petitioners. Muhammad Akbar complainant moved the learned Special Court for requisitioning the record from the Court of learned Judicial Magistrate for trial of the accused. The learned Special Court granted the said application on the report of the learned Assistant Advocate-General to the effect that since there was allegation of putting on fire the dwelling house with kerosene oil, the Special Court under section 5(3) of the Suppression of Terrorist Activities (Special Courts) Act, 1975 was empowered to take cognizance of the case directly without the case being sent to it under section 190, Cr.P.C. Muhammad Akbar complainant also applied to the Special Court for the cancellation of bail of the petitioners on which notice was issued to them whereupon they came to this Court by filing Criminal Miscellaneous No,327/Q of 1990.
3. It was stated without there being an appeal or revision against the order, dated 25-9-1990 of the Judicial Magistrate, Chunian holding that he was competent to take cognizance of the case, the learned Special Court could not requisition record of the case from this Court and issue process against the petitioners.
4. In exercise of the powers under section 435, Cr.P.C. Suo motu notice of the order passed by the learned Judicial Magistrate dated 25-9-1990 whereby he held that he was possessed of the jurisdiction to try the case to the exclusion of the Special Court (Suppression of Terrorist Activities)
Act, 1975 was taken. It was considered necessary because there was clash of opinion between two Courts with regard to their jurisdiction.
5. I have heard the learned counsel for the parties and the learned Assistant Advocate-General at length.
6. According to the prosecution allegations kerosene oil was used by the petitioners in setting on lire the houses of the complainant party.
7. The Macmillan Encyclopedia defines Explosive as substance that can be made to produce a large volume of gas very suddenly. The question whether or not kerosene oil was used for setting on fire the house of Abdul Ghafoor and Haveli of Habib-ur-Rehman and whether it is an explosive substance, mineral oil or any product of mineral oil can be properly determined by the learned trial Court. Clause (iv) of the Schedule to Suppression of Terrorist Activities Act, 1975 provides that an offence under section 436, P.P.C. Shall be triable by the Special Court if an explosive substance, mineral oil or any product of mineral oil is used in the commission of the offence. Section 5, subsection (3) of the Suppression of Terrorist Activities Act, 1975 empowers the Special Court to directly take cognizance of a case triable by such Court without the case being sent to it under section 190 of the Code. Subsection (1) of section 5 enjoins the Officer Incharge of the police station to forward directly a report under section 173, Cr.P.C. To the Special Court within 14 days in respect of a case triable by such Court. Section 4 of the ibid Act states that the scheduled offence shall be triable exclusively by a Special Court and if in the course of a trial before the Special Court, the Court is of the opinion that any of the offences which the accused is alleged to have committed is not scheduled offence, the said Court shall record such opinion and try the accused only for such offence if any as a scheduled offence.
8. In the light of the above circumstances, the learned Judicial Magistrate was not justified to assume jurisdiction and try the case. Consequently, his order, dated 23-9-1990 is set aside and the case is sent to the Special Court for Suppression of Terrorist Activities for trial in accordance with law.