1. ' Petitioner has sought transfer of Session Case No,63 of 1992 arising out of F.I.R. No,65/92 Civil Line Police Station, Quetta from the Court of Additional Sessions Judge-III, Quetta to Special Court under the Suppression of Terrorist Activities Act, 1975 asserting that Klashnikov and semi-automatic weapons were used in the commission of offence. Incident had taken place at about 7-45 p.m. On 2nd June, 1992 on Jinnah Road, Quetta. A.S.I. Khurshid Ahmad who was on duty in close vicinity witnessed the incident and lodged F.I.R. No,65/92 with Civil Lines Police Station, Quetta at about 8 p.m. Under section 302/324/147/148/149/120-B, P.P.C. Relevant averment therefrom are reproduced below:- {{URDU TEXT}} ' After completion of investigation case was eventually forwarded for trial to the Court of Additional Sessions Judge-III, Quetta. Learned counsel for parties, informed that trial has concluded and matter is now fixed for arguments. Transfer of case has been claimed mainly on the ground of jurisdiction asserting that section 4 of the Suppression of Terrorist Activities Act, 1975 (hereinafter referred as "The Act") excludes jurisdiction of all other forums concerning offences specified in the Schedule appended therewith. Section 4 is however, reproduced below for ready reference:-- "4. Jurisdiction of Special Court.--- (1) Notwithstanding anything contained in the Code, the schedule offences shall be triable exclusively by the Special Court: ' Provided that this section shall not be construed to require the transfer to a Special Court of any case which may be pending in any Court immediately before the constitution of the Court: (Provided further that the Government constituting a special Court may, by notification in the official gazette, direct that the Special Court shall have jurisdiction to try only such persons who have committed schedule offences as may be specified in the notification).
(2) If, in the course of a trial before the Special Court is of opinion that any of the offences which the accused is alleged to have committed is not a scheduled offence, the Court shall record such opinion and try the accused only for such offence, if any, as is a scheduled offence."
2. ' Mr. Amanullah Kunrani, Advocate for petitioner, Raja Rab Nawaz, Advocate for accused and Advocate-General were heard at length.
3. ' Mr. Amanullah Kunrani learned counsel for petitioner emphatically urged that offence of murder when committed with light or heavy; automatic or semi-automatic weapons such as Klashnikov G-III Rifle or any type of assault rifle constitute scheduled offence, which are exclusively tribalance by Special Court created under Terrorist Activities Act. To supplement his submissions reliance was placed on the observation of case Allah Din and others v. The State 1994 SCMR (April issue) 717. He further canvassed that P.W.8 complainant Khurshid Alam P.W.9 Sultan Ali and P.W.16 clearly proved use of China Rifle and Klashnikov for the commission of offence causing murder of Salal Akbar Bugti. He, therefore, stressed that Additional Sessions Judge-III has no jurisdiction to decide the case.
4. ' Raja Rab Nawaz learned counsel for the accused opposing transfer application strenuously contended that neither Klashnikov was recovered from the possession of accused persons nor any recovery of bullet or lead etc. Has been established by the prosecution nor any case suggesting violation of provisions of Arms Ordinance has been registered against accused, therefore, scheduled offence was not constituted and Additional Sessions Judge-III enjoyed lawful authority to decide the case. It was urged that evidence has been recorded by learned Additional Sessions Judge-III without any protest from complainant side. Now case is at final stage and main object of Special Law regarding expeditious disposal has already been achieved. Therefore, according to learned counsel transfer of the case to Special Court at this belated stage would cause prejudice to the accused persons. He further argued that section 120-B, P.P.C. Was not a schedule offence, therefore, transfer was not justified.
5. ' Learned Advocate-General very emphatically supported the transfer of case to Special Court for Suppression of Terrorist Activities contending that averments of F.I.R. As well as deposition, of main eye-witnesses clearly disclose use of Klashnikov or automatic weapons for causing murder.
6. Therefore, section 4 of "The Act" excludes authority of other forum for regulating, (trial of) scheduled offences". To supplement his submissions, reliance was placed on the observation of reported judgment in case Asif All Zardari v. The State 1991 P Cr. L J 595. It was asserted that no prejudice would be caused to petitioner on the transfer of case, because Transferee Court is bound to proceed from existing stage. In support of this contention reference was made to the observations of case (i) Muhammad Aslam v. The State 1993 PLJ (Cr. Cases) 177, which was upheld by the Honourable Supreme Court in Criminal Jail Petition No, 7/0 of 1992 Abdur Rehman Shah v. The State decided on 7-4-1993.
7. I have carefully perused the available record and considered the arguments advanced by learned counsel for parties. Firstly it may be seen that I averments of F.I.R. And prosecution evidence mention about use of Klashnikov and semi-automatic weapons for the commission of offence in the case. Therefore, it has to be seen whether the recovery of weapon is essential for assumption of jurisdiction under "The Act". In this behalf essential question requiring consideration would be whether culprits blatantly violated law and caused terrorism by using automatic or semi- automatic weapons which prima facie suggest commission of scheduled offence under "The Act", but succeed in absconding whereby weapons are not recovered; can escape trial under the provisions of Suppression of Terrorist Activities Act, 1975 merely because Arms or Ammunition is not recovered from their possession. Obviously answer would be in the negative, as recovery of weapon or registration of case under Arms Act has no nexus with main crime. Evidently if extreme view is adopted, then real object and spirit of law relating to specified offence, including holding trial in absentia would be completely frustrated. Therefore, non-recovery of B weapon or non- registration of case under Arms Ordinance, in my opinion cannot be deemed essential for drawing proceedings before Special Court under "The Act". This aspect is further supported by observation of Honourable Supreme Court in case Allah Din v. The State 1994 SCMR 717. All the objections raised by learned counsel for accused are fully answered in the aforequoted report. Relevant observations are reproduced below:-- "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 or .Any offence punishable under any of the following sections of the West Pakistan Arms Ordinance 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 Gin 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.
8. 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 P Cr. L J 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 fide 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 allegations in F.I.R. About use of Klashnikov like weapon, learned counsel for 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.
9. 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 interference. Leave is refused and the petitioner being devoid of the merits, is hereby dismissed."
10. ' It was next argued that transferee Court is bound to proceed from the stage of proceedings pending in existing forum. This aspect has been adequately discussed by Division Bench of this Court in case Muhammad \slam v. State 1993 PLJ (Cr. C.)
177. This judgment was upheld by Honourable Supreme Court in Criminal Petition No,7/Q of 1992 in Abdur Rehman Shah v. State, decided on 7-4-1993. Relevant observation is reproduced below:-- "The learned counsel for petitioner however, challenged the order of conviction on a technical ground that on the transfer of the case from the Court of Sessions Judge (Ad hoc) to the Court of Special Judge, it was incumbent upon him to have tried the accused de novo and not to have based conviction on the already recorded evidence which is illegal and vitiates the petitioner's conviction. We have heard the learned counsel and not been impressed by his contention. The relevant section of law dealing with the situation is section 350, Cr.P.C. Relevant part whereof is reproduced as follows:-- "Section 350(1), Cr.P.C. Conviction on evidence partly recorded by one Presiding Officer and partly- by another (1) Whenever any Sessions Judge or Magistrate, after having heard and recorded the whole or any part of the evidence in any inquiry or a trial, cases to exercise jurisdiction therein and is succeeded by another Sessions Judge or Magistrate who has and who exercises such jurisdiction, the Sessions Judge or Magistrate so succeeding may act on the evidence so recorded by his predecessor and partly recorded by himself, or he may re-examine the witnesses and recommence the inquiry or trial:-- ' Provided that:--
(a) Where the conviction was held before a Sessions Judge, the High Court; and (b) Where the conviction was held before a Magistrate, the High Court or the Court of Sessions, may whether there be an appeal or not, set aside any conviction passed on evidence not wholly recorded by the Sessions Judge or Magistrate before whom the conviction was held, if such Court is of opinion that the accused has been materially prejudiced thereby and may order a new inquiry or trial.'
11. No doubt previously on transfer of case the transferee Court was to record fresh evidence but through amendment brought about in the section by Law Reforms Ordinance, 1972 it is now permissible for the succeeding Court to rely on the evidence partly or wholly recorded at the trial by his predecessor. No such objection can be raised unless it is proved that the accused has been prejudiced thereby. The succeeding Court in the instant case is also presided by a Sessions Judge.
12. No objection was raised at the relevant time nor any prejudice was shown to have been caused to the petitioner. The objection as such cannot be entertained at this stage."
13. ' Similar view has been expressed in judgment reported as Liaqat Ali and others v. The State 1992 P Cr. L J 998.
14. ' Lastly objection regarding non-inclusion of section 120-B from jurisdictional ambit of Special Court if at all arises, can be agitated before trial Court at appropriate stage.
15. For the foregoing reasons, I am inclined to hold that Special Court constituted under Suppression of Terrorist Activities Act, has exclusive jurisdiction to try instant case which shall however, record proceedings from the stage onwards where the matter is presently pending.
16. ' Subject to above observations, the case is transferred to Special Court; for expeditious disposal according to law.