ORDERTASSADAQ HUSSAIN JILLANI, J. Through this constitutional petition, the petitioner seeks to challenge the assumption of jurisdiction by Special Court No.5 (Faisalabad) constituted under Suppression of Terrorist Activities (Special Court) Act, 1975. The brief facts leading to the case are that the petitioner along with two others were proceeded against U/S. 440,379, 365, 452, 337-H(ii)
PPC and 13/20/65 of Arms Ordinance vide FIR No.489/94, P.S.Nishat Abad, District Faisalabad. It is alleged that they after having armed themselves with rifles .222 bore and .12 bore entered complainant's haveli and resorted indiscriminate firing. After investigation, the challan was submitted before the learned Special Court under sections 448/337-H(ii)/365/440 PPC and sections 452/379 were dropped. On 18.5.1994, petitioner moved an application before the learned trial Court praying that the offences with which he had been charged do not fall within the ambit of the Schedule attached with Act XV of 1975 and therefore, the court had no jurisdiction to proceed with the trial. This application was argued on 12.6.1994. On 16.6.1994 an order was passed which is Annexure-C with this petition wherein the learned trial court returned the challan to the learned Assistant Advocate General for its proper scrutiny and he was directed as under:- "to submit the fresh challan in proper court of jurisdiction on or before 16.6.1994" It is surprising that on 14.6.1994, the learned Assistant Advocate General submitted an opinion before the learned trial court stating that:- "After careful perusal of the FIR it is found that the accused persons made indiscriminate firing and complainant tried his escape. The accused persons did drat set with the knowledge, and under such circumstances, that if the'' by let caused Qatl, they would be guilty of 324 PPC. The said offence is made out from bare reading of FIR and the same has not been incorporated in the challan, which is triable by this court".
2. Pursuant to this opinion by the learned Assistant Advocate General, the learned Special Judge passed the order dated 14.6.1994 which reads as undrer:- "The case was withdrawn by the prosecution on 12.6.1994 for further scrutiny and it has been again submitted today and learned AAG has reported that section 324 PPC be added and this court has the jurisdiction. He entered in the relevant register and the accused be summoned for 19.6.1994".
3. Syed Afzal Haider, Advocate, the learned counsel for the petitioner submits"- i) that under section 4(2) Act XV of 1975, the court has to satisfy itself qua its jurisdiction and only try an offence which is mentioned in the schedule; ii) that the learned trial court instead of giving the finding on the application submitted by the petitioner, permitted the learned Assistant Advocate General to withdraw the challan and fill up the lecunas which is contrary to law, and. i.e) that it is only the SHO who can submit a report under section 173 Ce.P.C.(which is called challan) or submit an interim report if the facts and circumstances of a case so permit.
4. The learned Additional Advocate General, on the other hand, submits:-
(i) that pursuant to the amendment made by the learned Assistant Advocate General and the order dated 14.6.1994 passed by the learned Special Court, the amendment has become an act of the Court and, therefore, it has to be given due judicial weight;
(ii) that generally the rifles used in such like occurrences are automatic or semi-automatic and, therefore, the offence would fall within the domain of the learned Special Court's jurisdiction.
5. I have heard the learned counsel for the petitioner as well-as the learned Additional Advocate General.
6. , I am afraid the orders dated 14.6.1994 and 16.6.1994 whereby the court granted permission to the learned Assistant Advocate General to withdraw the challan .Are orders which do not have the mandate of law and which militate against the spirit of law for following reasons:-
(i) after taking cognizance, there is no provision in the Code of Criminal Procedure whereby the trial court can permit an Assistant Advocate General to withdraw the challan and re-submit it after making amendments in his on discretion;
(ii) under section 173 Cr.P.C, it is only the SHO/I.O. Who can submit a final report and he may even submit a supplementary report if the circumstances so warrant; (i.e) besides the provisions contained in section 173 Cr.P.C.(under the general law) there is section 5 of Act XV of 1975 which provides that the officer-incharge of police station shall complete the investigation and forward the report directly to the Special Court .Under section 173 Cr.P.C, within forteen days;
(iv) that the opinion of the learned Assistant Advocate General dated 14.6.1994 which is Annexure-D with the petition indicates that the learned law officer has given his opinion merely after reading the FIR and did not care to examine the entire record. Notwithstanding the impropriety of the said opinion, the opinion itself on the face of it, is not based on any credible evidence/material emanating from challan.
7. I am fortified in my view by judgment of this court Mohammad Shafi VS. The State (PLD 1985 Lahore 173)
8. For aforementioned reasons this petition is accepted. The orders dated 14.6.1994 and 16.6.1994 passed by the learned Special Judge Faisalabad whereby he permitted the learned Assistant Advocate General to withdraw the challan; re-submit the same and issue notice to the accused for 19.6.1994 are set- aside and are declared to be of no legal effect. The application of the petitioner shall be deemed to be pending before the Judge Special Court No.5, Faisalabad who shall decide the same after hearing both the parties by 30.9.1994.