' SAJJAD ALI SHAH, J.---In this petition the basic question involved for consideration is whether this case is to be tried by the ordinary Court or Special Court set up under the provisions of Suppression of Terrorist Activities (Special Courts) Act, 1975. In F.I.R. Offences mentioned are 302/324/148/149, P.P.C. And as per prosecution story contained therein 19 persons were duly armed with different weapons including fire-arms and in the attack Mukhtar and Iqbal Rasool sustained injuries from whom the former died at the spot. Incident took place at 5-15 a.m. And seen by six eye-witnesses who are named in F.I.R. Including complainant.
2. The case was challaned in the Sessions Court and was marked to Additional Sessions Judge, Bahawalpur, when application was filed by the prosecution for transfer to the Special Court on the ground that Klashnikov/automatic assault rifle was used, hence the case was exclusively triable by the Special Court. Application was resisted and finally vide order dated 4-8-1993, the case was sent to the Sessions Judge for its transmission to the Special Court. Against that order revision was filed in the High Court before Bahawalpur Bench and was dismissed with remark that no interference was called for with order of transfer of the case to the Special Court, hence the petition before us.
3. Learned counsel for the petitioners, who are accused persons in the case, contended before us that this case is not exclusively triable by the Special Court as it is not covered by the offences mentioned in the Schedule to the Suppression of Terrorist Activities (Special Courts) Act, 1975 (to be referred hereafter as the Act) for three reasons. Firstly that Klashnikov or Klashnikov like weapon is not recovered, secondly that injuries are not caused by such weapons and thirdly, that crime empties recovered from the spot are of 7 MM rifle and one empty is of .12 bore cartridge.
4. So far question of jurisdiction is concerned the same is conferred upon the Special Court under section 4 of the Act, which is to be read with Schedule to that Act in which offences are mentioned, which are to be tried by that Court. In the context of present case, reference to Paragraph (c) of the Schedule is necessary, which is as under:--- "(c) any offence punishable under the Arms Act, 1978 (XI of 1878), or any offence punishable under any of the following sections of the West Pakistan Arms Ordinance, 1965 (West Pakistan Ordinance No.XX of 1965), namely, sections 8, 9 and 10 if committed in respect of a cannon, grenade, bomb or rocket; or a light or heavy automatic or semi-automatic weapon such as Klashnikov, a G-III rifle or any other type of assault rifle."
5. For the purpose of deciding the question of jurisdiction, the Court has to rely upon the material which is in the possession of prosecution at the time of presentation of case. Both the Courts below have acted upon the proposition that jurisdiction is to be determined on allegations made in F.I.R.
And the case set up by the prosecution. In support reliance is placed on the case of Azhar Hussain and others v. The Government of Punjab and others (1992 PCr. LJ 2308), which is full Court judgment of 3 Judges of Lahore High Court. In the reported case the point involved was identical inasmuch as it was alleged in F.I.R. That Klashnikov was used but during investigation it was not recovered and on that ground alongwith allegation of mala fides trial by the Special Court was resisted.
Contention was repelled and rightly so, on the ground that non-recovery of Klashnikov could not justify conclusion that the same was not at all used and mala fides were not proved.
6.
We are in agreement with view expressed in the reported judgment mentioned above, and further observe that question of jurisdiction can be determined on the basis of F.I.R. And other material which is produced by the prosecution at the time of presentation of the challan. On the basis of that material the Court has to decide whether cognizance is to be taken or not. In the instant case incident is seen by six eye-witnesses and on our query whether eye witnesses have supported the allegation in F.I.R. About use of Klashnikov like weapon, learned counsel for the petitioners replied in the affirmative. In the circumstances material available with prosecution in this case is sufficient to justify invocation of jurisdiction by the Special Court. Other contentions raised by the learned counsel for the petitioners as mentioned above, can be properly appreciated only when evidence is recorded in the trial Court and witnesses are cross-examined. When that stage comes, the law will take its own course and it is open to the parties to take steps as are permitted by the law. For the present we are of the view that no flaw or legal infirmity is pointed out in the judgment of the High Court warranting C interference. Leave is refused and the petition being devoid of merits, is hereby dismissed.