' MIAN ABDUL KHALIQ, J.---Abdul Jabbar son of Shafi Muhammad and Amjad Ali son of Hakim Abdul Majeed were tried alongwith co-accused Shabbir Ahmad son of Inayatullah (absconder) by the learned Judge, Special Court for Suppression of Terrorist Activities, Bahawalpur Division, Bahawalpur, who vide his impugned judgment dated 26-4-1992 convicted and sentenced the appellants and the absconder co-accused under section 392, P.P.C. To undergo 14 years' R.I. Each and a fine of Rs,50,000 each, in default whereof to suffer further R.I. For 4 years each. The movable and immovable properties of Shabbir Ahmad, absconder co-accused (since dead) were directed to be confiscated to the State. The appellants have preferred two separate Crl. A.S.C. (T) Nos. 12 & 13/92/BWP which shall be disposed of by this judgment.
2. The appellants alongwith their co-accused were challaned by the police of Police Station B- Division, Rahimyar Khan vide case F.I.R. No,172 of 1991 registered on 13-7-1991 on the complaint of Muhammad Arshad Farooq under Article 17 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 for committing robbery of Rs,263 and a wrist-watch of the value of Rs,300.
3. The learned counsel for the appellants has seriously challenged the conviction and sentence of the appellants and has argued that the appellants were challaned by the police in the F.I.R.
Registered under section 17 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979. They were sent up for trial under section 17/20 of the Hudood Ordinance and sections 392 and 411, P.P.C. And after entrustment of the case to the Special Court for Suppression of Terrorist Activities, the appellants were charged under section 392, P.P.C. The offence under section 392, P.P.C. Is scheduled offence while the other offences were unscheduled.
4. The learned trial Court assumed jurisdiction and had made evasion of charges under section 411, P.P.C. And section 17/20 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, which were nonscheduled offences, for which the appellants were charged and sent up for trial.
5. The jurisdiction of the Special Court is determined by section 4 of Act XV of 1975, which says:- "If in any case of trial before the Special Court, the Court is of the opinion that any of the offences which the accused was 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 a scheduled offence."
' Section 392, P.P.C. Is a scheduled offence, but section 411, P.P.C. And section 20 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 are not. The words only for such offence" occurring in the section to our mind referred to the scheduled offence and not to other (unscheduled offence). So the Special Court/trial Court had no jurisdiction to try the offence under section 411, P.P.C. And section 20 of the Offences Against Property (Enforcement of Hudood)
Ordinance, 1979.
6. For the foregoing reasons we have no other alternative except to set aside the conviction and sentence of the appellants and remand the case for retrial to the learned Sessions Judge, Rahimyar Khan.
7. Before parting with this judgment we will add that the appellants shall be at liberty to move the trial Court for the grant of bail, who shall earnestly consider such prayer, if made, keeping in view the period of detention of the accused/appellants. Both the appeals stand disposed of accordingly.