' This petition has been filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, seeking transfer of the complaint case titled "Muhammad Nawaz Shah v.. Alamdar Hussain Shah etc." pending in the Court of learned Additional Sessions Judge, Pakpattan Sharif/respondent No,2 herein to the Court of Judge Special Court, Suppression of Terrorist Activities constituted under Act X of 1975 at Multan.
2. The facts in brief, giving rise to the instant petition are that a case F.I.R. No,151 of 1995 dated 8-6- 1995 was registered with Police Station, Chak Baidi, District Pakpattan Sharif under section 302/324/34, P.P.C. At the instance of Amjad Hussain Shah against Muhammad Nawaz Shah, Ghulam Murtaza Shah, Riaz Hussain Shah and Qayyum Hussain Shah. According to the aforesaid F.I.R., the accused had allegedly mounted a murderous attack on the complainant's party in result thereof Nau Bahar Shah was injured and resultantly succumbed to his injuries whereas Alamdar Hussain Shah, Falak Sher, Zahida alias Shahida Parveen_ and Bani minor sustained injuries at the hands of the aforesaid accused persons. The said case was thoroughly investigated and final report under section 173, Cr.P.C. Was prepared and submitted before the Court of Special Judge, Suppression of Terrorist Activities, Multan. The petitioner also filed a private criminal complaint under section 302/324, P.P.C. Against Alamdar Hussain Shah and Amjad Hussain Shah for committing the murder of one Waryam and causing injuries to Riaz Hussain and Aamir Iqbal. The learned Sessions Judge, Pakpattan Sharif after recording the preliminary statements of the witnesses vide order dated 5-7-1995 summoned the respondents to face the trial and the same was entrusted, thereafter, to the learned Additional Sessions Judge, Arifwala. The petitioner through a petition sought the transfer of the case to the Court of Special Judge at Multan but the request was declined vide order dated 20-10-1995 passed by the learned Additional Sessions Judge, Arifwala, District Pakpattan Sharif.
3. The learned counsel for the petitioner has argued his case with full vehemence stating that the private criminal complaint had arisen from one and the same occurrence and to avoid contradictory judgment, it would be appropriate to transfer the case to the Court of Special Judge to be tried together. Further argued that the learned trial Court has fallen in error in law while dismissing the transfer petition. In support of his contention, he has relied upon Rafaqat Ali v.
Hidayat Ali and others (1986 PCr.LJ 989). The State and another v. Mushtaq and others (1981 PCr.LJ 1045), Abdul Rehman Bajwa v. Sultan and 9 others PLD 1981 SC 522 and Sher Akram v. Sher Qadir and another (1994 SCM R 1092).
4. Conversely, the learned counsel for the contesting respondent has vehemently argued his case contending that the Court of Special Judge constituted under the Suppression of Terrorist Activities Act X of 1975 was created by a statute under special law and the said Court under section 4(2) is only to try scheduled offences attached to the said Act and the weapon/arms used while committing the murder of Waryam do not fall within the ambit of the expression "light or heavy automatic weapons" as envisaged in paragraph C to the Schedule of the Act X of 1975. Because the arms used in the offences do not fall within the category of light or heavy automatic or semi- automatic weapons, which has further been elaborated such as Klashnikov, a G-III rifle or any other type of assault rifle. He has laid great emphasis stating that it was categorically stated in the private complaint that the murder was alleged to have been committed and the injuries were caused with the pistols and this weapon does not fall in paragraph 'C' of the Schedule to the Act.
He has relied upon Wazid Moral alias Wazid Ali and 13 others v. The State and another 1970 PCr.LJ 652; Muhammad Sadiq v. The State and another PLD 1971 SC 713; Muhammad Javaid v. Judge Special Court and others 1995 PCr.LJ 666; Muhammad Arshad Mughal v. The State 1991 PCr.LJ 780; Faisal Rashid v. The State 1991 PCr.LJ 2331; Bakhtiar Ahmed v. The State 1991 PCr.LJ 2398; Khan alias Haji Khan v. The State 1991 PCr.LJ 323 and Muhammad Raza Irani alias Muhammad Irani v.
Government of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad and 2 others 1991 PCr.LJ 583.
4-A. The learned Law Officer has entered appearance and has also supported the contentions 'of the learned counsel for the contesting respondents Nos.4 and 5.
5. I have heard the learned counsel for the respective parties at a considerable length and have also given my anxious consideration to the facts and the circumstances of the case and the law point involved in this petition. I have also considered precedents cited above.
6. The transfer of the private criminal complaint titled above has been sought agitating only on one ground that the murder has been committed in one and the same transaction and in combination of the offences. The matter is not so simpliciter. Since the legal point has been raised with regard to the jurisdiction of the learned trial Judge, it is made quite clear while stating in para. 2 of the private criminal complaint that the respondents namely Alamdar Hussain Shah and Amjad Hussain Shah, armed with pistols, had come to the village along with two others armed with .12 bore guns. If the private criminal complaint filed by petitioner is seen in its true perspective, it transpires that the murder of Waryam was allegedly committed by the respondents with their pistols. Now the question arises as to whether the offence is committed with a weapon falls within the ambit of paragraph c of the Schedule to the Act X of 1975. The possession of pistol and firing with the same constitute a scheduled offence to be tried under the ibid Act, 1975.
7. Before proceeding further it would be appropriate to make distinction between sections 13 and 13-A of the Arms Ordinance No, XX of 1965. The aforesaid Ordinance was amended vide Pakistan Arms Amendment Ordinance, 1988 (Ordinance No, XX of 1988). Section 13 of the ibid Ordinance reads as follows:-- "13. Penalty for breach of sections 4, 5, 8 to 11.-Subject to the provisions of section 13-A whoever commits any of the following offences, namely:--
(a) .....................................
(b) .....................................
(c) .....................................
(d) .....................................
(e) ..................................... ' shall be punished with imprisonment 'for a term which may extend to seven years or with fine or with both."
' The amended section 13 reads as follows:-- "In the Pakistan Arms Ordinance, 1965 (W.P. Ordinance No,XX of 1965), hereinafter referred to as the said Ordinance, in section 13,-- (96 for the word "whoever" the words, figures, letters and comma "subject to the provisions of sections 13-A and 13-B, whoever" shall be substituted; and
(b) for the proviso the following shall be substituted, namely:-- "Provided that the punishment for an offence committed in respect of any rifle of '303 bore or over, musket of '410 bore or over pistol or revolver of .441 bore or over, or ammunition which can be fired from such musket, pistol or revolver, shall be imprisonment for a term which is not less than three years."
' In addition to the above amendment, sections 13-A and 13-B of the Ordinance ibid have also been introduced through the same amended Ordinance which read as follows:-- "13-A. Penalty for breach of section 4 in respect of cannon or automatic weapon etc.--Whoever sells, or keeps, offers or express for sale, a cannon, grenade, bomb, rocket or light or heavy automatic or semiautomatic weapon, such as a Klashnikov, a G-III rifle or any other type of assault rifle, or ammunition which can be fired from such weapon, in contravention of the provisions of section 4 shall be punishable with imprisonment for a term which may extend to fourteen years and shall not be less than seven years, fine and forfeiture of property.
13-B. Penalty for breach of section 8 or 9 in respect of cannon or automatic weapon, etc.-- Whoever,--
(a) goes armed with a cannon, grenade, bomb, rocket or a light or heavy automatic weapon, such as a Klashnikov, G-III rifle, or any other type of assault rifle, in contravention of the provisions of section 8, or
(b) has in his possession or under his control any of the arms or weapons referred to in clause (a), or ammunition which can be fired from such weapon, in contravention of section 9."
' A bare reading of the aforesaid section 13 makes it abundantly clear that the penalty for breach of sections 4, 5, 8 to 11 shall be imprisonment for a term which may extend to seven years or with fine, or with both and the following proviso has been added:-- "That the punishment for an offence committed in respect of any rifle of '303 bore or over, musket of '410 bore or over, pistol or revolver of '441 or over or ammunition which can be fired from such musket, pistol or revolver shall be imprisonment for a term which is not less than three years."
' The penalty under section 13-A has been provided for the breach of section 4 of ibid Ordinance in respect of cannon or automatic weapon etc. And the offence was made punishable with' imprisonment for a term which may extend to fourteen years and shall not be less than seven years, fine and forfeiture of property. This offence deals with selling, keeping, offering or exposing for sale, cannon, grenade, bomb, rocket or light or heavy automatic weapon or semi-automatic weapon such as Klashnikov, a G-III rifle or any other type of assault rifle or ammunition which can be fired from such weapon. The offence under section 13-B of the Ordinance deals with the penalty for breach of section 8 or section 9 of the Ordinance and that too in respect of cannon or automatic weapon etc. ' From the above survey it transpires that the offences under amended Ordinance have been made punishable with imprisonment under section 13-A up to fourteen years and not less than seven years and under section 13-B up to ten years and not less than three years. This exercise has been undergone to curb the trend of having illicit arm without licences and to eliminate the use of weapons while creating harassm ent and the terrorism among the people of the country.
' In view of the increasing trend for terrorism and to check it, the Suppression of Terrorist Activities (Special Courts) Act, 1975 was introduced and thereafter the offences of particular type were made exclusively triable by the Courts created under the ibid Act, 1975 and the schedule in respect of the particular offences was attached to the Act.
' In the light of what has been discussed above, it seems appropriate to reproduce section 4 of the Suppression of Terrorists Activities (Special Courts) Act, 1975 which confers the jurisdiction to the Courts constituted under this Act which reads as under:-- "Section 4.--(1) Notwithstanding anything contained in the Code, the scheduled offences shall be triable exclusively by a Special Court: ' Provided that this section shall not be construed to require the transfer to a Special Court of any case which may be pending in any Court immediately before the constitution of the Court: ' Provided further that the Government constituting a Special Court may, by notification in the official Gazette, direct that the Special Court shall have jurisdiction to try only such persons who have committed scheduled offences as may be specified in the notification.
(2) If in the course of a trial before the Special Court, the Court is of opinion that any of the offences which the accused is alleged to have committed is not scheduled offence, the Court shall record such opinion and try the accused only for such offences if any as is a scheduled offence."
' The para. C of the Schedule to the Act, 1975 read as follows:-- "C".--Any offence punishable under the Arms Act, 1878 (XI of 1878), or any offence punishable under any of the following sections for the West Pakistan Arms Ordinance, 1965 (West Pakistan Ordinance No, XX of 1965), namely sections 8, 9 and 10, if committed in respect of a cannon, grenade, bomb or rocket, or a light of heavy automatic or semi-automatic weapon such as Klashnikov, a G-III rifle or any other type of assault rifle."
' The Suppression of Terrorist Activities (Special Courts) Act, 1975 was further amended as the Suppression of Terrorist Activities (Special Courts) (Amendment) Ordinance No, XVII of 1988.
Through this amendment paragraph CC of the Schedule to the ibid Act was added as follows:-- "CC" .--Any offence punishable under section 13-A or section 13-B of the Pakistan Arms Ordinance, 1965 (W.P. Ordinance No, XX of 1965)."
' Since the aforesaid Ordinances were not placed before the appropriate Legislature and both the Ordinances were repealed on the expiry of four months time provided under the Constitution.
However, the Vinance Suppression of Terrorist Activities (Special Courts) (Amendment) Act, 1990 was again promulgated and the position of the repealed Ordinance, 1988 was carried out. This Ordinance No,I of 1990 was made Act through Suppression of Terrorist Activities (Special Courts)
(Amendment) Act, 1990.
' The entire data presented by the complainant was that the accused-respondents were armed with pistols. Reference to section 4 of the Suppression of Terrorist Activities (Special Courts) Act, 1975 shows that the Special Court is empowered to try the scheduled offences only through Clauses C and CC of the Schedule certain offences punishable under Arms Ordinance have been made triable by the Special Court according to which the offences under sections 8 to 10 of the West Pakistan Arms Ordinance, 1965 are triable by the Special Court, if they are committed in respect of a cannon, grenade, bomb or rocket or a light or heavy automatic or semi-automatic weapons, making it further clear such as Klashnikov, G-III rifle or any other type of assault rifle. The bare reading of section 4 of the Terrorist Activities Act and Schedule attached to it, makes it abundantly clear that the offences with regard to the pistol simpliciter and 12 bore gun, are not included in clauses (C) and (CC) referred to above. The Special Court is a creation of the statutes of Special Courts Act, 1975. It has only such jurisdiction as is conferred by the said Act. The jurisdiction of that Court cannot, by any stretch of imagination, be extended beyond the scope of the Act ibid. The principle laid down in Ghulam Shabbir and 37 others v. Punjab Special Court (Suppression of Terrorist Activities) Act and others 1992 PCr.LJ 1932 (Lahore) (Full Bench), is fully attracted to the facts and the circumstances of the case.
Resultantly, the case against the respondents as regards the offences not covered by the Schedule attached to the aforesaid Act, is triable by the ordinary Court.
' For what has been discussed above, this petition has no force and stands dismissed with no order as to costs.