' RASHEED AHMED RAZVI, J.--- This is an application under section 561-A, Cr.P.C., filed by the three applicants, who, previously were facing trial of an offence under section 365-A, P.P.C. Before the Special Judge-II (Suppression of Terrorist Activities), Hyderabad. Through this application, they have prayed that the learned Special Judge-II (S.T.A.), Hyderabad be directed to announce the judgment as the said case was concluded and the final arguments were heard on 22-3-1995.
Thereafter, till filing of this application (August, 1995), the learned Special Court-II (S.T.A.), Hyderabad has failed to announce any judgment which, according to the applicants, is causing great hardship and injustice to the applicants/accused.
2. On 5-9-1995, this Court directed the Special Court to file parawise comments, which, the learned Judge failed to submit within time. However, on 2-11-1995, the learned Judge, Special Court No,II (S.T.A.), Hyderabad submitted his reply that since he has transferred the case to the Additional Sessions Judge, Kotri, vide order, dated 10-10-1995, for want of jurisdiction and since the file was not available as such, he was not able to file the required parawise comments. Meanwhile, this Court has also received a reference from the learned Additional Sessions Judge, Kotri, to whom the case was transferred by the Special Court No,II (S.T.A.), Hyderabad. This reference reads as follows:-- "Whether Suppression of Terrorist Activities Court in scheduled offences (as per F.I.R., 161, Cr.P.C., statements Mashirnamas and challan) after conclusion of trial at the time of judgment can sent the case papers to ordinary Courts for trial for the reasons that from the evidence adduced by the prosecution scheduled offence is not made out."
3. The Special Courts constituted in furtherance of section 3 of the Suppression of Terrorist Activities (Special Courts) Act, 1975, which provides that the Federal Government or the Provincial Government, if latter directed by the Federal Government, shall constitute Special Courts by notification in the official Gazette, consisting of a person whose qualification is disclosed in sub- paras. (a) and (b) to subsection 3(1) (hereinafter referred to as the Act, 1975). Section 4 of the Act, 1975, empowers the Special Court to exclusively try the scheduled offences. However, section 4-A of the Act, 1975, provides transfer of cases from one Special Court to another Special Court on the grounds of general convenience of the parties or witnesses and to meet the ends of justice.
4. On the question of taking cognizance of scheduled offence as provided under section 5 of the Act, 1975, it was held by the Honorable Supreme Court in the recent case of Riffat Hayat v. Judge Special Court for Suppression of Terrorist Activities, Lahore and another 1994 SCM R 2177 as follows:- - "Section 5(1) of the Act provides that the officer in charge of the police station, on completion of investigation, shall forward its report under section 173 of the Code to the Special Court within 14 days in respect of a case tribal exclusively by the Special Court. Section 5(2) of the Act deals with the power of Special Court to extend time of 14 days prescribed under subsection (1) of section 5 of the Act for submission of police report and the consequences of delay and default in compliance with the provisions of section 5(1) by the Police Officer. Subsection (3) of section 5 of the Act provides that the Special Court may directly take cognizance of a case triable by that Court without the case being sent to it under section 190 of the Code. A comparison of proviso of section 190 of the Code with section 5 of the Act will show that neither application of section 173 nor 190 of the Code is excluded either specifically or by necessary implication. The provision relating to taking of direct cognizance by the Special Court contained in subsection (3) of section 5 of the Act is not a new one as a similar provision for taking cognizance of the case directly by a Magistrate already existed under subsection (2) of section 190 of the Code. Section 5 of the Act, which appears to be a combination of sections 173 and 190 of the Code differs from these provisions only to the extent hereinafter indicated. Section 173 of the Code provides for submission of the report by the incharge of police station to the concerned Magistrate, who in turn forwards the same to the Court competent to try the case. Under section 5 of the Act, the incharge of police station is required to submit the report in a case triable by Special Court directly to that Court. Section 173 of the Code provides no time limit for submission of the report on conclusion of investigation by the officer in charge of the police station to the concerned Magistrate while section 5 of the Act lays down a time limit of 14 days for submission of such a report to Special Court and delay in compliance of this time limit is punishable as disobedience of the order of Special Court. A Court of Session under section 193 of the Code is debarred from taking cognizance of a case as a Court of original jurisdiction unless the case is sent to it by a Magistrate under section 190(3) of the Code whereas a Special Court under the Act can take cognizance of a case directly as a Court of original jurisdiction in the same manner as a Magistrate is empowered to take cognizance of a case under section 190 of the Code." (Underlining is ours).
5. Section 193 of Cr.P.C. Defines how a Court of Session can take cognizance of an offence. It clearly states that no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been sent to it under section 190, subsection (3) of the Cr.P.C.
6. As far as the reference of the learned Additional Sessions Judge, Kotri is concerned, we are of the considered view that a Court of Session or Additional Sessions Judges are not competent to directly take cognizance of a case sent to them from the Court of Special Judge (Suppression of Terrorist Activities) in view of the clear prohibition imposed in section 193 of Cr.P.C.
7. On the question, whether a Judge of Special Court (Suppression of Terrorist Activities) is competent to directly transfer a case from his file to the Court of Session or Additional Sessions Judge, we are of the considered view that such power is not available to the said Judge. In such circumstances, where a learned Judge of Special Court comes to the conclusion that the offence alleged by the prosecution does not fall within the category of scheduled offence, then in case of a police challan, it should refer back the same to the concerned police from whom it has received challan under section 5(1) for further action. It would be open for the investigation agency/prosecution to examine whether the said charge-sheet be filed before the concerned Magistrate under section 190, Cr.P.C. For trial by itself as provided under section 190(1)(b), Cr.P.C. Or to further transmit to the Court of Session. We may observe here that it is not proper for a Judge of a Special Court to ask for the prosecution of any person by transferring a case to a Sessions Judge as it was done in the instant case.
8. In case, if a Special Court (Suppression of Terrorist Activities) takes cognizance on receipt of a direct complaint or if suo motu cognizance is taken, and thereafter it comes to the conclusion that the offences alleged is not a scheduled offence, then, it can resort to the remedy provided under section 203, Cr.P.C. Again it would not be entitled to transfer the said case to the Court of Session or to the Magistrate.
9. In the circumstances of the case, one more alternate was available with the Special Court which procedure was adopted by a learned Single Judge of this Court Mr. Z.A. Channa, J. (as he then was) in the case of The State v. Muhammad Yaqub and another 1979 PCr.LJ 927. In this reported case Justice (Retd.) Z.A. Channa was acting as Presiding Officer, Special Court (Suppression of Terrorist Activities) for the Province of Sindh. The Malir Police Station submitted a challan against accused on 26-11-1976 under section 25 of the Telegraph Act, 1885 read with sections 379 and 411, P.P.C. The learned Judge after considering the provisions of Telegraph Act, rightly discharged the accused with the following observation:-- "It will be seen that the offence of committing theft of telegraph line is quite a distinct offence from an offence under section 25 of the Telegraph Act, and that special provisions are made in regard to the former offence. No doubt in certain cases it may be possible to establish that a person who has committed theft of telegraph line has also committed an offence under section 25 of the Telegraph Act, but those would be cases where the necessary intention under section 25 is established. In the instant case, as already pointed out, such intention has not been established and on the contrary there would appear to be simply a simple intention to commit theft.
' For the foregoing reasons, I am of the opinion that the offence allegedly committed by the accused is not triable by this Court. It will be open to the prosecution to prosecute the accused in respect of an offence of theft of telegraph line or possession thereof before the ordinary Courts. As no scheduled offence appears to have been committed by the accused this Court cannot further proceed in their trial. The accused are on bail. Their bail bonds are ordered to be discharged."
(Underlining is ours).
10. We are also conscious of the rule laid down by the Honourable Supreme Court in the case of Allah Din and 18 others v. The State and another 1994 SCM R 717. In this case it was held by the Honourable Supreme Court after referring to a judgment of Full Bench of Lahore High Court in the case of Azhar Hussain and others v. The Government of Punjab and others 1993 PCr.LJ 2308 that the question of jurisdiction of the Special Courts constituted under the Act, 1975 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 challan/charge-sheet. It was further observed that the question whether klashnikov or any other automatic weapon was used in the commission of an offence for the determination of the question whether jurisdiction lies with the Special Court can be appreciated only after recording of evidence. Following is the relevant observation of the Honourable Supreme 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."
11. But the grievance of the applicants/accused does not end here. They have also filed a bail application. It is not denied that the applicants/accused are in custody since 27th July, 1992. It is yet to be decided whether their case is to be tried either by a Special Court or by a Sessions Court? Till decision of such question, they cannot be kept in detention for indefinite period. It is settled law that if a person is not accused of a scheduled offence, as provided in the Act, G 1975, then this Court is fully competent to exercise its power under section 561-A, Cr.P.C. As well as under section 498, Cr.P.C.
12. In view of the above circumstances, we hold that the transfer of the case from the file of Special Court No,II (Suppression of Terrorist Activities), Hyderabad to Additional Sessions Judge, Kotri was without jurisdiction and is, therefore, without lawful authority and of no legal effect. In the circumstances and keeping in view the inconvenience, injustice and hardship being faced by the applicants, we accept their bail plea and grant them bail, upon furnishing one solvent surety of Rs,50,000 (Rupees fifty thousand only) each with P.R. Bond of the like amount to the satisfaction of the Additional Registrar of this Court.