1. ' ABDUL RAHIM KAZI, J.---This appeal has been filed challenging the judgment and conviction awarded by the Special Judge (S.TA., Nawabshah) in Case No, 388 of 1991 whereby he convicted the appellants under section 365-A, P.P.C. And 302, P.P.C. And sentenced them to death.
2. ' Briefly the facts are that one Talib Din Korai lodged FIR on 4-6-1991 at 20-00 hours at Police Station Moro, District Nausharo Feroze, alleging therein that Ashfaque Ahmed son of Muhammad Bux Korai, aged about 18 years is his nephew. According to him on the night of incident he, his nephew Ashfaque, his relative All Muhammad son of Ghulam Muhammad Korai, Azizullah son of Haji Qassiin were sitting in the Otaq in the open courtyard on cots. Electricity light was there. On 3-6-1991 at about 11-30 p.m. Five persons came inside the Otaq, whom the complainant party clearly saw on electricity light and identified them to be Ali Akbar son of Wali Dad Rind, who had gun in his hand.
3. Mir Hassan son of Azeem Rind, who was also armed with gun, Muhammad Nawaz son of Muhammad Laiq, who had rifle in his hand and two were unidentified persons, who had guns in their hands, and they were not previously seen, hence they were not identified. Those persons controlled over the complainant party and they forcibly took complainant's nephew Ashfaque out of Otaq and at the distance of 250 paces, Ashfaque refused to go with dacoits and he resisted on which the culprits made direct fire with gun and rifles as a result of which Ashfaque fell down on the ground, then accused persons ran away towards East along with their weapons, the complainant party then went and saw that Ashfaque was lying dead then complainant leaving behind the witnesses there on dead body, went and lodged the report which was registered as Crime No, 68 of 1991 at Police Station Moro. Complainant has further alleged that his nephew was abducted for ransom. The F.I.R. Was registered under sections 302/148/149, P.P.C. And 13-D, Arms Ordinance. However, the Police put up the Challan against the five accused which included three appellants and co-accused Ali Hassan son of Azeem and All Ahmed son of Wald Dad. The Challan was submitted before the Civil Judge and FCM, Moro on 31-7-1991 along with the report. The Challan was accepted and on the same day was forwarded to the Sessions Court by the Civil Judge/FCM Moro. The case diary shows that the Sessions Judge on receipt of the case papers from the Court of Civil Judge and FCM, Moro registered the case. The case diary of the Sessions Court of 13-8-1991 shows that the accused were present in the Court. The Defence Counsel filed his power and the case was put off to 1-9-1991. In the meanwhile on 11-8-1991 the S.H.O. Submitted an application to the Civil Judge and FCM, Moro saying that this was the final challan; and that the Superintendent of Police, Nausharo Feroze had ordered inclusion of section 365-A, P.P.C. In the Challan. This application was forwarded to the Sessions Judge by the Civil Judge and FCM, Moro on 21-8-1991 with his covering letter. The learned Sessions Judge received the said letter as shown in the case diary of 22-8-1991. On 1-9-1991 the case was taken up by the Sessions Judge, Nausharo Feroze and the same was adjourned to 26-9-1991 and the non-bailable warrants were ordered to issue with regard to absconding accused Ali Hassan. In the meanwhile on 12-9-1991 the Sessions Judge, Nausharo Feroz by a covering letter sent the case papers to the Court of Special Judge S.TA.
4. Khairpur. The case diary further shows that the Special Court has thereafter taken cognizance in the matter. The Special Court thereafter examined 11 witnesses for the prosecution. The A.P.P. Then closed his side. Statements of five accused were recorded under section 342, Cr.P.C. The accused did not examine themselves on oath nor did they examine any witness in defence though chance was given. The trial Court then after hearing the arguments of the Advocates was pleased to convict the appellants as above while the co-accused were acquitted. Being aggrieved the present appellants preferred this appeal.
5. ' We have heard Mr. Abdul Mujeeb Pirzada, the learned counsel for the appellants and learned Assistant Advocate-General for State. At the very outset the learned counsel for the appellants has raised preliminary objection with regard to legality of the trial. He has pointed out that the case was put up before the Sessions Judge who had registered the same as a Sessions Case and issued process against absconding accused. According to the learned counsel this shows that the Sessions Judge had taken cognizance in the matter and the case could be treated as pending before his Court. The learned counsel has submitted that the Court of Special Judge is not a Court subordinate to the Court of Sessions Judge and, therefore, the Sessions Judge had no authority to send the case to the Court of Sessions Judge. He has also raised a further objection that in this case the report as required under section 173, Cr.P.C. Was submitted to the Magistrate on 31-7-1991 who then forwarded the same to the Court of Sessions Judge where the Sessions case was registered as under section 302/147/148/149, P.P.C. As disclosed in the said report under section 173, Cr.P.C. And that a subsequent application under section 170, Cr.P.C. Made by the said SHO to the Civil Judge and FCM was not competent and could not by itself be treated as a report under section 173, Cr.P.C. The learned counsel for the appellants has further argued that since the case was pending before the Sessions Judge, the accused had a right to be heard before the transfer of such case to any other Court. He has placed reliance on the case Muhammad Rafiq and another v.
6. Additional Chief Secretary, Home PLD 1989 Quetta 45.
7. ' As against this the learned Assistant Advocate-General has argued that by addition of section 365-A, P.P.C. To the challan the case fell within the definition of scheduled offence under section 2(b) of the Special Court (S.TA.) and, therefore, the Sessions Judge had no jurisdiction to try the case which became exclusively triable by the Special Court and thus the Sessions Judge had rightly sent the case to the said Court. He, however, conceded that the Sessions Judge had no authority to transfer the case to the latter Court. However, seeking aid from the principles .Laid down in the case of Muhammad Iqbal v. State 1992 MLD 287, he has argued that this was only a bona fide mistake and could not affect the trial.
8. ' We have given anxious consideration to the submissions made by the learned counsel for the parties. The first question is whether the case was sent up before the Sessions Judge, Nausharo Feroze as case under scheduled offence. Section 170, Cr.P.C. Provides that in case of investigation under Chapter XIV of Cr.P.C. Which empowers the Officer In charge of the police station that in case there is sufficient evidence or reasonable ground, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence etc. Section 173, Cr.P.C. As prior to amendment introduced vide Act No, XXV of 1992 reads as under:--- "173. Report of police officer.--(1) Every investigation un of this Chapter shall be completed without unnecessary delay, and, as soon as it is completed, the officer-in-charge or the police station shall---
(a) forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the Provincial Government, setting forth the names of the parties, the nature of the information and the names of the case and stating whether the accused (if arrested) has been forwarded in custody or has been released on his bond, and, if so, whether with or without sureties; and
(b) communicate, in such manner as may be prescribed by the Provincial Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given.
(2) Where a superior officer of police has been appointed under section 158, the report shall, in any case in which the Provincial Government by general or special order so directs, be submitted through that officer, he may pending the orders of the Magistrate, direct the officer-in-charge of the police station to make further investigation.
(3) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.
(4) A copy of any report forwarded under this section shall, on application, be furnished to the accused before the commencement of the inquiry or trial: ' Provided that the same shall be paid for unless the Magistrate for some special reason thinks fit to furnish it free of cost?
9. ' In the present case the challan was put up in July, 1991 and, therefore, the amendments added in the year 1992 would not be applicable but the section as reproduced in its amended form will be applicable. This section 173, Cr-P.C. Provides that on completion the officer-in-charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the Provincial Government given all the particulars mentioned therein. This section did not provide for sending any interim report as introduced by amending Act XXV of 1992. However, the record does not show if any order was passed by the Sessions Judge directing the inclusion of section 365-A, P.P.C. To the challan submitted to the Court earlier which challan itself is a final challan as it does not disclose the same to be interim challan.
10. On the strength of this first contention the case became instituted in the Court of Sessions and Sessions Court was seized of the same. Any amendment with regard to the trial or the case had then to be made with the permission of the Court and not at the directions of Superintendent of Police as is said in the application under section 170, Cr.P.C. Made by S.H.O. On 11-8-1991. There is nothing on the record to show if the Sessions Judge had passed any such order but the above referred to letter of Sessions Judge shows that he has merely passed on the case papers to the Court of Special Judge. No doubt by adding section 365-A, P.P.C. The case would be cognizable exclusively by the Court of Special Judge and Sessions Judge would not have the jurisdiction to try the same. However, the question is whether the report made to the Court by the police in the present case is under section 365-A, P.P.C. Or not. However, as discussed above, the case could not be converted to one under section 365-A, P.P.C. Merely at the directions of the Superintendent of Police, but it was for the Sessions Court to have considered this aspect at the time of framing of charge and if the Sessions Court had come to conclusion that the accused could be charged with the offence under section 365-A, P.P.C. Then such reference could have been made or case papers returned to the investigating agency for putting up the challan before the competent Court. In the present case there is no such order by the Sessions Judge. In the case of Muhammad Iqbal v. State as cited by the learned Assistant Advocate-General the point involved was that the Sessions Judge if by mistake has himself sent the case to the Court of Special Judge the latter Court could not be said to have taken cognizance without jurisdiction. Section 5(3) of the Suppression of Terrorist (Special Courts) Act, 1975 provides that the Special Court may directly take cognizance of a case triable by such Court without the case being sent to it under section 190 of the Code. In these circumstances, we are of the view, that of course where a case was brought before the Special Court exclusively triable by it then the Court can take cognizance. However, in the present case as discussed above, the case has initially instituted before the Sessions Judge was not a case for any scheduled offence.
11. ' The other point argued by the learned counsel for the appellants is that in the present case the transfer of the same from the Court or Sessions Judge to the Court of Special Judge was by an ex parte action against the appellants without hearing them. In the case of Muhammad Rafiq v.
12. Additional Chief Secretary Home, a Division Bench of the Quetta High Court deciding three Constitutional petitions has held as under; "There is no doubt that accused who is facing trial has no right to select forum of his trial and normally prosecution in its direction can seek adjudication from Court of competent jurisdiction.
13. However, when once choice has been exercised by submitting the challan before a Court of law then if subsequently appropriate Government forms an opinion to transfer the case for trial to Special Court obviously prior notice to accused with opportunity of hearing would be desirable."
14. ' In the above case reliance has also been placed on the case of Home Secretary v. Jan Muhammad PLD 1969 SC 333.
15. In view of the above discussion, we are of the view that the appellants had a right to be put on notice and to be heard before transferring the case papers to the Court of Special Judge as the matter at that time was pending before the Court of Sessions Judge, Nausharo Feroze.
16. Consequence of the above conclusions is that the trial before the Special C Court is vitiated and the judgment and conviction awarded by the Special Court is set aside and the case is remanded to the Court of Sessions Judge, Naushahro Feroze to be dealt with according to law in view of the principles laid down in this judgment.