' SALEEM AKHTAR, J.--The petitioner seeks leave to appeal against the order of the learned Judges of the Division Bench of the High Court by which the order passed by the Special Judge of the Special Court constituted under Suppression of Terrorist Activities Act, 1975 permitting the prosecution to withdraw the case registered against the petitioner was set aside and the case was ordered to be deemed to be pending before the Judge, Special Court for adjudication in accordance with law.
2. The brief facts are that on 10-5-1990, F.I.R. No, 177 was recorded at Police Station Paharianwala, District Gujrat under section 13/20/65 of the Arms Ordinance. According to the F.I.R. Klashnikov and loaded magazines were recovered on the search on the road side. Another F.I.R. No,178 dated 10-5- 1990 was also registered which related to recovery of klashnikov from the house of the petitioner. It seems that the petitioner contested this and by order dated 16-6-1990 A.D.M. Ordered for withdrawal of the case in public interest but as he was not competent to pass such an order, the District Magistrate by order dated 29-7-1990 withdrew the said order. On 23-8-1990, the petitioner applied to the District Magistrate who ordered for holding a judicial inquiry. A report was submitted on 26-8-1990 and by order dated 27-8-1990 the District Magistrate ordered for withdrawal of the cases registered under both the F.I.Rs, Thereafter, while the High Court was hearing Criminal Appeal No,900 of 1992 in respect of another case in which the same police officials had raided and made recoveries of arms, it took suo motu notice of the order passed for withdrawal of the cases against the petitioner. By the impugned order the learned Judges set aside the said order and the prosecution case was deemed to be pending before the Special Judge, who was directed to decide it.
3. The learned counsel for the petitioner contended as follows:-
(1) The order of withdrawal passed by the District Magistrate was valid as section 494, Cr.P.C.
Remained intact even after the promulgation of Suppression of Terrorist Activities Act, 1975.
(2) The order passed by the Special Court attained fmality and there was no provision for suo motu interference by the High Court.
(3) Section 7 of the Act of 1975 ousts the jurisdiction of the Court and suo motu proceedings could not have been taken.
(4) The provision of section 561-A, Cr.P.C. Could be invoked for purposes of bail and not otherwise.
4. The contentions require consideration. Leave is granted. Notice to the Attorney-General. The operation of the impugned order is stayed on petitioner's furnishing bond in the sum of Rs,50,000 with two sureties each in the like amount to the satisfaction of the trial Court.