' The relevant facts are that Raheel Ahmad complainant reported at Police Station Chunian on 7-6- 1990 that Yaqoob, Mahmood, Ehsan-ul-Haq alias Nannah, Muhammad Asghar and Shabbir Ahmad petitioners had committed rioting after trespassing into his house and set on fire his household articles and removed valuables and committed mischief by firing in the air. Accordingly, case F.I.R.
No,267, dated 7-6-1990 under sections 148, 452, 436/149, P.P.C. Was registered at Police Station Chunian.
' After completing investigation, the police submitted challan in the Court of Judicial Magistrate, Chunian. The accused applied for the grant of bail to the said Court. In the meantime, Shamim-ur- Rehman filed Criminal Miscellaneous No,233/T of 1990 for the transfer of bail application from the Court of the Judicial Magistrate, Chunian on the ground that he lacked jurisdiction to proceed with the case as it was exclusively triable by the Special Court under (Suppression of Terrorist Activities)
Act, Lahore.
2. During the course of hearing of the said petitions, learned counsel for Shamim-ur-Rehman submitted that he had no objection to the disposal of the matter by the Judicial Magistrate concerned provided the objection raised by him with regard to the jurisdiction was decided in accordance with law. Learned counsel for the accused agreed to the said proposal. Consequently, the Judicial Magistrate was directed to proceed with the matter in accordance with law after deciding the question of jurisdiction.
3. The Judicial Magistrate, Chunian heard the parties at length and by order, dated 25-9-1990 held that he had jurisdiction to try the case and considering the case to be one of further inquiry granted bail to Muhammad Asghar, Ehsan-ul-Haq alias Nannah, Shabbir Ahmad, Yaqoob and Mahmood. The relevant para. Of his order reads as under:-- "According to the F.I.R. Kerosene oil has been used for the commission of offence under section 436, P.P.C. The word 'explosive substance' has been defined in section 3 of the Explosive Substances Act (VI of 1908) and to my mind kerosene oil does not fall within the definition of explosive substance.
As regards mineral oil 1 feel that kerosene oil does not fall within the definition of mineral oil which is derived from rocks as translated in the legal dictionary. Moreover, kerosene oil is not extracted from the rocks but is found in the earth. Learned defence counsel has also relied upon Muhammad Yousaf v. The State 1987. MLD 1645, whose facts reveal that kerosene oil was used for putting the cattle shed of complainant on fire and a case under section 436, P.P.C. Was registered and bail was subsequently allowed by the learned Illaqa Magistrate."
4. Raheel Ahmad complainant submitted an application before the Special Court (Suppression of Terrorist Activities) for requisitioning the challan from the Court of Judicial Magistrate as the Special Court only was competent to take cognizance of the case under paragraph (a)(iv) of the Schedule attached to Act XV of 1975. Another application was also moved before him for the issuance of a direction to the police to submit challan to the Special Court. The said application was marked to the learned Assistant Advocate-General who requisitioned and submitted the challan to the Special Court on 9-12-1990 as according to him there was an allegation in the F.I.R. Of putting on fire a dwelling house with kerosene oil (mineral oil) within the meaning of paragraph (a)
(iv) of the Schedule. The Special Court was of the view that under section 5(3) of the Suppression of Terrorist Activities Act, 1975 it could directly take cognizance of the case without the same being sent to it under section 190, Cr.P.C. The learned Special Court also summoned the accused. The complainant moved the .Application before it for the cancellation of the bail of the accused persons on which notices were issued to them.
5. Before the learned Special Court could proceed further in the matter, this petition was moved before this Court against the assumption of jurisdiction by the learned Special Court. It was stated that without there being any 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 his Court and issue process against the petitioners.
6. 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.
7. I have heard the learned counsel for the parties and the learned Advocate-General at length.
8. According to the F.I.R. Of the case Sultan son of Sher Muhammad co-accused of the petitioners was armed with a Klashnikov while Yaqoob and Mahmood petitioners carrying tins of kerosene oil trespassed into the house of Shamim-ur-Rehman and set on fire his furniture and household articles as a result of which the house caught fire and was totally burnt. It is further alleged that firing in the air was also made.
9. Section 8 of the Arms Ordinance, 1965 prohibits going armed without licence with a weapon like Klashnikov. The Schedule to Suppression of Terrorist Activities Act, 1975 provides that the offence under section 8 of West Pakistan Arms Ordinance XX of 1965 shall be triable by the Special Court if committed in respect of weapon like Klashnikov. Actual use of Klashnikov in the occurrence is not necessary for the conferment of jurisdiction on the Special Court to try the offence. This point was also considered in Bilal Hussain v. The State PLD 1991 Lah. 346 and Azhar Hussain and others v.
Government of Punjab and others 1992 P Cr. L J. 2308. In the latter case it was held that jurisdiction of the Court is to be determined on the basis of the allegations contained in the F.I.R. And the case set up by the prosecution and that the truthfulness or otherwise of the allegations could only be determined at the trial after recording evidence.
10. The Macmillan Encyclopaedia 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 Raheel Ahmad complainant 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 of 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 a 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 offences 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.
11. 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 25-9-1990 is set aside and the case is sent to the Special Court for trial in accordance with law.