' ALI MUHAMMAD BALOCH, J.--- By this criminal revision application under section 439, Cr.P.C. Read with section 561-A, Cr.P.C. The three applicants have challenged an order passed by Sessions Judge, Naushero Ferozr whereby the challah against them was returned to the concerned S.H.O. For production of it before the Special Court (S.T.A.) having jurisdiction.
2. Brief facts of the case are that the three applicants Ali Akbar, Mir Hassan and Muhammad Nawaz were implicated in the Crime No,68 of 1991 of Police Station Moro, Naushero Feroz registered on 3-6- 1991 on the compliant of Talibuddin Korai. This F.I.R. Was registered for an offence under sections 302, 148 and 149, P.P.C. Read with section 13-D, Arms Ordinance. The allegations against the three applicants in the said F.I.R. Were that they had entered the Oat of the complainant on 3-6-1991 at or about 11-30 a.m. Duly armed with fire-arms along with the two unidentified accused (who were later on identified to be Khabro alias Ali Ahmed and Ali Hassan) and after kidnapping Ashfaq Ahmed, the nephew of complainant, shot him dead at a distance of about 250 paces from the Otaq. Ashfaq Ahmed had resisted accompanying them. A challah of this case was put up before the Illaqa Magistrate showing the offence to be under sections 302, 148, 149, P.P.C. And 13-D, Arms Ordinance. Since these sections were tribal by the Court of Sessions, the Illaqa Magistrate sent the challah to the Court of Sessions Judge, Naushero Feroz for trial, but the Sessions Judge, on receipt of an application by the police for adding section 365-A in the said challah, transferred the case to the Court of Special Judge (S.T.A.) after having taken cognizance of the same. The Court of Special Judge (S.T.A.) on receiving the case from the Court of Sessions Judge, tried the same and passed the judgment convicting the three applicants sentencing them to death, while the two co-accused Khabro alias Ali Ahmed and Ali Hassan were acquitted. Ali Akbar, Mir Hassan and Muhammad Nawaz challenged their conviction in Criminal Appeal No,206 of 1993 before this Court and their appeal was decided by a D.B. Of this Court on 9-8-1994. The D.B. Of this Court arrived at a conclusion that the Sessions Judge had illegally transferred the case to the Court of Special Judge (S.T.A.) and, therefore, the trial before the Special Court was vitiated and, therefore, the conviction awarded by the Special, Court to the applicants was set aside. In the same order, the D.B. Ordered that the case be remanded back to Sessions Judge, Naushero Feroz to deal with it in accordance with law.
3. In obedience to the order of D.B. Of this Court the case went back to the Court of Sessions Judge, Naushero Feroz and the Sessions Judge, Neuter Feroz instead of proceeding with the case, passed the impugned order returning the challah to the police. In the impugned order, the Sessions Judge, Neuter Feroz held that on considering the police papers, he was of the view that section 365-A, P.P.C. Was attracted and that, therefore, the Court of Special Judge (S.T.A.) had the exclusive jurisdiction to try the case and, therefore, he directed that challah be returned back to the concerned S.H.O. For producing the same ' before the Special Court (S.T.A.).
4. Before the impugned order passed by the Sessions Judge, Naushero Feroz could be acted upon, and cognizance could be taken by the Special Judge (S.T.A.), the applicants have filed this revision application challenging the order passed by the Session Judge. The case has, therefore, not been sent to the Special Court (S.T.A.) and the learned counsel at the Bar stated that the papers are still with the police and they are waiting for the result of this revision. The learned counsel for the petitioner has challenged the impugned order mainly on the ground that since the police submitted challah showing sections 302, 148, 149, P.P.C. And 13-D, Arms Ordinance, which are tribal by the Court of Sessions, the order passed by the Sessions Judge for returning the challah to the police is not proper and not legal. Further contention of the learned counsel for the applicants is that in this case the police has got no material available with them to show that the case falls under section 365-A, P.P.C. (which was exclusively tribal by the Special Court (S.T.A.)). Police would have directly produced the challah before the S.T.A., Court, which they could do in spite of the fact of having submitted the challah initially before the Court of Sessions Judge. Further contention of the learned counsel for the petitioner is that since in this case entire trial has .Taken place, it will be proper to look into the evidence of the witnesses to find out if the material is available for treating this case falling under section 365-A, P.P.C. Since the order of the Sessions Judge holding that offence falling under section 365-A, Cr.P.C. Was attracted, merely because the police had reported so, it will be just and proper to give a finding whether the facts of the case warranted trial for an offence under section 365-A also, in addition to section 302, P.P.C. This Court, while deciding the revision, could look into the material and find out if provisions of section 365-A, P.P.C. Are attracted or not. Learned counsel for the applicant has pointed out to the A depositions of complainant Talibuddin and P.W. Azizullah, who are the only important witnesses of the incident. Their depositions do not show the demand of ransom on the part of the accused persons nor there is any other indication to show that the provisions of section 365-A are attracted in this case. Even otherwise the facts of this case show that Ashfaq Ahmed was killed immediately at a distance of about. 250 paces after he was taken away from the Otak. Therefore, it could not be said that as to what was the purpose of taking away of the deceased. The witnesses have not stated anything about the demand of the ransom or the purpose of kidnapping in their depositions before the S.T.A.
Court. The assertion in the impugned order by the Sessions Judge, Naushero Feroz that there was a mention in the F.I:R. That culprits had tried to abduct Ashfaq Ahmed and killed him at his resistance because of their greed for money, does not clearly show that it was the kidnapping with the intention of receiving ransom. In any case it was merely a mention in the bottom of the F.I.R. After conclusion of the substantial narration about the incident. After the F.I.R., the .Complainant was examined in the Court. If the intention on the part of the culprits was kidnapping for the sake of receiving ransom, the complainant could have stated so while in the witness-box, or the prosecution could have produced any other evidence to prove at least the demand of the ransom on the part of the culprits. Since all these facts, form the part of the record, we cannot overlook the same. Therefore, after going through the record, we come to the conclusion that section 365-A, P.P.C. Was not attracted and that is why the police initially produced the challah for the offences, minus this section viz. 365-A. Learned counsel for the State while supporting the impugned order has stated that before taking cognizance of the offence, the trial Judge has to scan through the entire record available before him and not merely the sections applied by the police. We find here that the Sessions Judge while passing the impugned order has completely overlooked the entire material available with him and merely a belated request from the Mice to include section 365-A in the challah has been considered. We find that the impugned order is neither legal nor proper as the entire available material has not been considered. Therefore, the same cannot be sustained. As a result, we accept this revision, set aside the impugned order, and direct that this case be tried by the Sessions Judge, Naushero Feroz.
5. Since this case has been shuttling between the Courts for a long time and the trial had been completed once, the Sessions Judge should give top priority to the proceedings of this case and decide the same within a period of 6 months. Since the impugned order is set aside by this judgment, the challah if returned back to the S.H.O. Concerned, should be called from him by the Sessions Judge and the proceedings should start immediately.
6. While parting we find it relevant to observe that during the trial if substantial evidence comes on record to show the implication of section 365-A, P.P.C., the charge could be amended, and the Sessions Judge would adopt the legal course to send the case to Special Court (S.T.A.) as the section 365-A is exclusively tribal by that Court.
Revision .