' In this Criminal Revision under section 435/439 read with section 561-A, Cr.P.C., the applicant has challenged the order dated 24-12-1995 passed by the learned Sessions Judge, Karachi (East) upon a reference made by the learned IXth Additional Sessions Judge, Karachi (East) in Session Case No,536 of 1995 (State v. Naseem and others) vide F.I.R. No,120 of 1995 registered under section 399/402, P.P.C. At Police Station Tipu Sultan, Karachi. The learned Sessions Judge had allowed the reference and directed the learned trial Court that the case of the applicant and others may be sent to the Special Court (Suppression of Terrorists Activities) Act for trial.
2. In the F.I.R. It is alleged that on 9-7-1995, S.I. Syed Tahir Hussain Zaidi, S.H.O. Alongwith police party were busy in patrolling at Tipu Sultan Chowrangi when a special informer informed the S.H.O. That five persons duly armed were present at Shahra-e-Al-Quran, Al-Hamra Society near a bungalow gate with the intention to commit dacoity. The police secured witnesses, for preparation of Mashirnama and went to the place of incident alongwith the special informer and saw that one person was standing on the wall of the bungalow and his other companions were also present near the gate. Two of them were apprehended on the spot and they disclosed their names to be Naseem son of Murad and Amjad son of Raza while their three colleagues managed to escape in the darkness of night. The apprehended culprits disclosed their names as Muhammad Younus son of Lal Khan, Muhammad Ali Gilgati son of Abdul Salam and Barkat son of Wali Muhammad. From the pent of accused Naseem one T.T. Pistol of .30 bore made in Pakistan with four cartridges loaded magazine were secured and from the fold of pent of co-accused Amjad one Carbine and one cartridge loaded were secured. The accused and the property were brought at the police station and case under section 399/402, P.P.C. Was registered against all the five accused.
3. The learned IX A.D.J., Karachi East in his reference requested that according to the charge-sheet, TT pistol was recovered from the possession of accused Naseem and case for recovery of TT pistol is triable by the Special Court under the Suppression of Terrorist Activities (Special Courts Act), 1975 therefore the concerned Police Station Tipu Sultan may be directed to challan the said case before the Special Court having jurisdiction in the matter. The learned Sessions Judge passed the following order: "Since the recovery of the TT pistol is a scheduled offence coming within the jurisdiction of the STA Courts and besides the main crime had been registered under section 399/402, P.P.C. (scheduled offence) therefore the reference appears to be genuine. The learned IX A.D.J. To call the concerned police to collect the challan and then submit to the Court having jurisdiction. Reference is disposed of accordingly."
4. I have heard Mr. S. Javed Haider Kazmi learned counsel for the applicant and Mr. Agha Zafir learned counsel for the State and also perused the record.
5. Learned counsel for the applicant submitted that the impugned order is bad in law and facts. He referred to ground Nos.2 and 3 which read as under:- "That the relevant provisions of amended Schedule annexed with section 2(b) viz., clause (a)-iii, includes sections 392, 393, 394, 395, 396, 397, 398 and 399, if a Cannon, Grenade, Bomb, Rocket or an arm of a prohibited bore is used for, or any public property is stolen, destroyed or damaged in the commission of the offence; whereas the amendment made by Presidential Order, dated 9th April, 1995 includes and effects the Schedule to the extent of said clause (c) viz. 'including semi- automatic or automatic pistols and those commonly known as TT Pistol shall be inserted and no amendment was made in clause (a)-iii which does not cover the case of the applicant/accused to be tried by learned STA Court but the Court of learned District and Sessions Judge erroneously allowed the reference by ignoring the ingredients of clause (a)-iii of the Schedule of Suppression of Terrorist Activities Act, 1975 hence the trial before the learned STA would be coram non judice illegal and without jurisdiction.'
3. That as no prohibited bore was used in the commission of the offence, nor any public property is stolen, destroyed, damaged -hence the amendment made in clause (c) of the Schedule of STA Act, 1975 shall not cover the case of applicant and the same would be exclusively triable by learned Sessions Judge, Karachi East."
' Lastly he submitted that no weapon was used as per allegation of the prosecution and the applicant was found to have been in possession of a .30 bore TT Pistol while according to the provision of the said Schedule arms of .44 bore or above, pistol or revolver shall attract the provision of (a)-iii clause of the Schedule which does not cover the case of the applicant. Learned counsel for the State conceded that the impugned order is legally unsustainable.
6. Since I propose to remand the matter, to the learned Sessions Judge, Karachi (East) on technical ground I refrain myself to make any comment on merits of the case.
7. In Allandin v. State 1994 SCMR 717 the Hon'ble Supreme Court has held that the 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. Respectfully following the law laid down in Allandin's case and Ali Akbar and another v. State PLD 1995 Kar. 10 and Muhammad Rafique and another v. Additional Chief Secretary Home PLD 1989 Quetta 45 in my humble view after the submission of challan the learned trial Court has to exercise its jurisdiction by proper application of judicial mind. However, such an exercise ought to have been undertaken, after ascertaining the point of view of the effected person i,e, the accused. This means, in other words, the accused must be provided an opportunity of having been heard, before an order in regard to the withdrawal of his case from Sessions Court to the Court established under the Special Courts (Suppression of Terrorist Activities) Act, 1975 is passed. During the course of hearing it transpired that neither any notice was given to the accused nor he was heard before passing the impugned order. This being in violation of the principles of natural justice, was illegal. I am fortified in my view by the judgment reported as Anisa Rehman v. P.I.A.C. 1994 SCMR 2232, wherein violation of principles of natural justice have been equated with the violation of principle of law. I am also of the view that principles of natural justice would now have to be considered as a Constitutional concept, enshrined in Articles 3 and 4 of the Constitution, which contain the due process clause.
' The upshot of the above discussion is that the impugned order is set aside and the revision is allowed. The Sessions Judge, Karachi (East) is directed to pass the order afresh, in accordance with law in the light of above observations and after hearing the parties.