' This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, challenges the trial of the petitioner by respondent No,2, who is the Judge, Special Court (Suppression of Terrorist Activities), Faisalabad, Division Faisalabad, on the ground that the offences under which the petitioner is being tried are not scheduled offences within the meaning of Suppression of Terrorist Activities (Special Courst) Act, 1975, and, therefore, respondent No,2 has no jurisdiction.
2. Briefly stated, the relevant facts are that on a report made' by Muhammad Ashraf Ghumman, P.D.S.P., a case was registered against the petitioner on 12th May, 1991, vide F.I.R. No,156 under section 552 of the Pakistan Penal Code and section 25-D of Telegraph Act, 1885, for making abnoxious calls on telephone. The case was sent up for trial to the Court of respondent No,2, who is working as a Judge, Special Court.
3. The contention of the learned counsel for the petitioner is that as none of the offences for alleged commission of which the petitioner is being tried are scheduled offences, the Special Court has no jurisdiction to try the petitioner.
4. Mian Iqbal Hussain Kalanauri, Advocate, appearing on behalf of the petitioner has been heard.
' According to section 4 of the Suppression of Terrorist Activities (Special Courts) Act, 1975, the Special Court constituted under the said Act has the jurisdiction to try the scheduled offences.
Scheduled offence is defined in section 2(b) of the Act, as meaning of offence specify in the Schedule. A perusal of the schedule shows that neither section 452 of the Pakistan Penal Code, nor section 25-D of the Telegraph Act, 1885, find mention therein. That A being so, the trial of the petitioner by the Special Court is clearly without any jurisdiction.
5. According to learned counsel, the mention of section 25 of Telegraph Act, should be construed as including the offences under sections 25-A, 25-B, 25-C and 25-D of the Act. This contention of the learned counsel, on the face of it, is highly misconceived. Item 2 of the schedule only mention section 25 of the Telegraph Act and not sections 25-A, 25-B, 25-C and 25-D and there is no reason as to why these provisions, which are independent and separate in nature should he deemed to be included under item No,2 without there being any express mention.
6. A reference to Telegraph Act, 1885 would show that sections 25-A, 25-B, 25-C and 25-D did not form part of the original Act, when it was promulgated and were subsequently inserted by the Indian Telegraph (Amendment) Act, 1914, and Telegraph (Amendment) Act, 1975. The offences mentioned in these provisions are quite different and independent of section 25 of the Act. A reference to section 25-A would show that on its own wording it applies only in a case not provided for by section 25. In the present case, the petitioner is alleged to have committed an offence falling under section 25-D which reads as under:-- "25-D. Any person, including a telegraph officer, who uses any telephone, public or private, for causing annoyance or intimidation to any person, whether a subscriber or not, or for obnoxious calls shall, without prejudice to any other action which the telegraph authority is competent to take under this Act, be punishable with imprisonment for a term which may extend to three years, or with fine, or with both."
' On a comparison section 25 with section 25-D of the Telegraph Act, it becoms obvious that these offences are not even common or similar, while section 25 relates to an offence for causing intentional damage to telegraph, section 25-D provides for punishment, for causing annoyance or intimidation to another person on telephone. There is no nexus between the two provisions which stand independently of each other.
7. It further needs to be noticed that it is well-accepted principle of interpretation that penal provision as also those ousting the jurisdiction of ordinary Courts are to be strictly construed.
' It view of what has been stated above, this petition is allowed and the trial of respondent No,2 by the Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975, is declared to be without lawful authority and of no legal effect. It shall, however be open to the State, if it is so desires, to send the case for trial to a Court of competent jurisdiction.
No orders as to costs.