1. ' ABDUL RAHIM KAZI, J.---This appeal is directed against the judgment passed by the Special Court I (STA), Karachi in Special Case No,40/93 registered vide F.I.R. No, 161/93 at Gulbahar Police Station, Karachi under section 4/5th of the Explosives Act, 1884.
2. ' Briefly the prosecution case as given in the F.I.R. Is that Inspector Arif Jah Siddiqi of Crime Branch on 12-6-1993 had sent a report which was subsequently incorporated in the register under section 154, Cr.P.C. At the said police station to the effect that the present appellant Hassan Abbas who had been arrested in another case being Crime No,160/93 of the same Police Station had during interrogation disclosed that 15/16 days earlier one tall boy having a beard aged about 25/30 years had come to his brother Syed Mohsin Mehdi (absconder) and asked him to conceal a 7 MM rifle with a butt folding and two handgrenades which were in two wooden boxes; and that the same were concealed in front of the house in the Factory of one Abdullah in an abandoned sewerage without the knowledge of said Abdullah. The said explosives were recovered by the complainant in presence of the Mashirs on the pointation of appellant and consequently the FIR was registered.
3. The police after usual investigation and completion of the formalities had sent up the case for trial before the said Special Court under section 4/5 of the Explosive Act.
4. ' Charge was framed against the present appellant and the absconding accused Syed Mohsin Mehdi under section 4/5 of the Explosive Act to which the appellant pleaded not guilty and claimed trial. The prosecution examined Arif Siddiqi, the Inspector of Police who was Investigating Officer in the case. He produced the F.I.R. And Mashirnama etc. The prosecution then examined P.Ws.
5. Moinuddin, Akbar Ali, Muhammad Younus, Ghulam Mohiuddin, Abdullah and Arshad Mahmood. The statement of the accused was recorded under section 342, Cr.P.C. The appellant examined D.W.
6. Muhammad Athar. The trial Court then after hearing the arguments of the Advocates was pleased to acquit the absconding accused Syed Mohsin Mehdi while the present appellant was convicted under section 4/5 of the Explosive Act and sentenced him to suffer R.I. For 10 years. Benefit of section 382-B, Cr.P.C. Was allowed. Being aggrieved, the appellant has preferred this appeal: ' We have heard Mr.Waqar Hussain Nqvi, the learned counsel for appellant and Mr. Sarwar Khan, the learned Assistant Advocate-General for State. At the very outset the learned counsel for appellant has challenged the trial and conviction on technical grounds and has submitted that the entire trial stands vitiated on account of material irregularities and illegalities committed by the prosecuting agency. He has submitted that in the present case the F.I.R. Is registered under section 4/5 of the Explosive Act which was promulgated in the year 1884 and not under the provisions of Explosive Substances Act, 1908. He has also submitted that even the charge-sheet (Challan) which was submitted in the Special Court is also under the above said Act of 1884 and not the Act of 1908 and so also the charge. The contention of the learned counsel is that both these Acts are in field and it is only the offences punishable under Explosive Substances Act, 1908 (XI of 1908) which are scheduled offences as provided in Schedule to the Suppression of Terrorist Activities (Special Courts) Act, 1975 and not the offences under Explosive Act of 1884. From this it appears that the trial Court had no jurisdiction in the matter and the Challan was wrongly put up before the trial Court.
7. The learned Assistant Advocate-General opposing this contention of the learned counsel for appellant has submitted that it should be presumed that the case was sent up under section 4/5 of the Act, 1908 as the contents of the F.I.R. Will make out such case. We are afraid we cannot subscribe to the said contention of the learned Assistant Advocate-General. It may be observed that the F.I.R. The charge-sheet and the charge framed by the trial Court are all under section 4/5 of the Explosive Act, 1884 and not under Explosive Substances Act, 1908. Section 221, Cr.P.C. Provides that every charge shall state the offence with which the accused is charged. This section further provides that specific name of the offence mentioned in the charge would be sufficient description of the offence alleged against the accused. In the present case the section mentioned in the charge is 4/5 of the Explosive Act. A reference to the sanction for trial given by the Provincial Government which is Exh.3 (e) also shows that this sanction was accorded under section 196, Cr.P.C. Read with section 16 of the Prevention of Anti-National Activities Act, 1974. The heading given to this sanction also shows that the accused was involved in a case under section 3/4 of the Explosive Act. In these circumstances, this sanction does not pertain to the offence under section 4/5 of the Explosive Substances Act. Not only this but the sanction mentions section 3 of the Explosive Act and not section 5 of the Explosive Act which itself shows that the concerned Officer has not applied his mind to the facts of the case but acted merely in a mechanical manner.
8. ' The learned Assistant Advocate-General has further submitted that this wrong mentioning of the sections of the Act under which the case was sent up for trial is only an irregularity which can be cured under section 529 read with sections 535 and 537, Cr.P.C. Section 529, Cr.P.C. Provides for the cases which do not vitiate the proceedings and section 535, Cr.P.C. Provides the effect of omission to prepare the charge while section 537, Cr.P.C. Deals with the cases where the error or omissions are made in the =report by police officer under section 173, Cr.P.C. There is no cavil about the above legal proposition. However, the question which requires consideration in the present case is as to whether the Special Court had the jurisdiction to take cognizance in the present matter. Section 5 of the Suppression of Terrorist Activities (Special Courts) Act, 1975 deals with the taking of cognizance by the Special Court. Clause (i) of this section provides that Officer In charge of the police station shall complete an investigation and forward directly to the Special Court a report under section 173 of the Code within 14 days in respect of a case triable by such Court. The cases triable by such Court are mentioned in the schedule attached which as stated above does not provide for trial of any offence under Explosive Act, 1884. A plain reading of these provisions would, therefore, show that in such case the Special Court did not have any jurisdiction to take cognizance of this case on the basis of a report forwarded to it but should have returned the case to the concerned police station for submission before the competent Court. In these circumstances, we are of the view that the trial of the appellant stands vitiated and he deserves to be acquitted.
9. Reliance may be placed on the cases of Sohail Ahmed v. State (1995 PCr.LJ 177) and Ali Akbar v.
10. State (PLD 1995 Karachi 10).
11. In view of the above discussion, we accept the present appeal, set aside the judgment, conviction and sentence awarded by the trial Court. The appellant is acquitted. He is in custody and is directed to be released forthwith if not required in any other case.