MIAN ALLAH NAWAZ, J.---This petition, under Article 199 of the Constitution of Pakistan (1973) by Sardar Ali/accused calls in question the order passed by the learned Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975, Multan (hereinafter described as 'Special Court'), whereby that Court dismissed the application moved by the petitioner under section 4(2) of Suppression of Terrorist ~ Activities (Special Courts) Act, -1975 (hereinafter referred to as Act, 1975 (hereinafter referred to as 'Act'). .
2. Few facts, relevant for the disposal of this petition are that on 2-10-1994 Saeed Ahmad Qureshi, complainant, lodged F.I.R./alleging therein that he was an eminent politician of Multan and had political enmity with Sh. Tahir Rasheed accused; that sometime back one Amjad was assassinated; that Sh. Rashid and Tahir Rashid used to instigate Sardar and Karamat the brothers of Amjad against the complainant; that on 1-10-1994, one Muhammad Ajmal and Muhammad Arshad informed him that Sh. Tahir Rashid and Sh. Muhammad Rashid were inciting said Sardar to murder the complainant; that on the fateful night of occurrence, complainant woke up at about 3 a.m. And found Ghulam Rasool, Maqbool alias Booli, Sardar Ali and Karamat Ali all armed with rifles .222 were present alongwith four other persons, out of which two were armed with rifles .222 and two were carrying mausers; that the assailants fired with mauser and Akram Saeed/his son and injuries were caused to Mst. Hameeda Begum and Kishwar Saeed and his son Aslam Saeed; that Akram Saeed succumbed to injuries instantaneously.
3. The complainant made a supplementary statement in the hospital wherein he stated that accused Sardar Ali, Karamat, Ghulam Rasool and Maqbool had fired at them with Klashnikov.
Ghulam Rasool accused was arrested on 8-11-1994 and one unlicensed Klashnikov was recovered from him. A case under section 13 of the Arms Ordinance (XX of 1965) was registered against him.
Likewise, on 25-12-1994 one unlicensed Klashnikov was recovered from Sardar Ali accused and an F.I.R. No.346 of 1994 under the provisions of section 13 of the Arms Ordinance, 1965 was registered against the said accused. On the same day one unlicensed Klashnikov was recovered from Karamat Ali and a case under the Arms Ordinance was registered against him. After completing the investigation, the investigator prepared his report under section 173, Cr.P.C. And forwarded the case to the learned Special Court for trial. Feeling dissatisfied, the petitioner moved an application under section 4(2) of the Act in that Court alleging therein that the Klashnikovs recovered by the police were sent to Fire-Arm Expert and it was found by him that these were not used in the commission of the offence, and so the petitioner was not accused of the offences enumerated in Schedule to the Act. After hearing the learned counsel for the applicant, the learned Special Court vide order dated 24-7-1995 rejected the application. This is how this Constitution petition has come to this Court.
5. Moulvi Muhammad Soltan Alain, Advocate, the learned counsel for the petitioner opened the arguments on behalf of the petitioners He was assisted by Ch. Pervez Aftab, Advocate: The arguments put forth by the learned counsel for the petitioner can conveniently summarised as below: Firstly; Relying upon the rule laid down in Muhammad 1qbal v. State PLD 1992 Sh.C. (AJ&K) 7, it was contended that the Klashnikov recovered from the petitioner, was not found to have been used in the commission of offence by the Fire-Arm Expert. On the strength of this report, it was suggested that the petitioner was not accused of any offence enumerated in section 2(b) of the Act and so the assumption of jurisdiction by the Special Court was void ab initio and it was the duty of the Special Court to send back the case to the learned Sessions Judge, Multan for disposal.
Secondly; that it was the duty of the learned Special Court to determine its jurisdiction by taking into consideration the first information report, the prosecution evidence and the report of Fire-Arm Expert which was a relevant piece of evidence within the meaning of section 510 of Cr.P.C.
Reference was made to Ghulam Shabbir v. Punjab Special Court (STA) No.5, r992 PCr.LJ 1932 and Allah Din v. State 1994 SCM R 717.
Thirdly; that the submission of the challan to the learned Special Court was an act of mala fide on the part of the investigating officer.
6. We have heard the learned counsel for the petitioner at considerable length, perused the record of the case and the decision of the Special Court with care. On this exercise we have found no merit in this petition. It was not the case of the petitioner that the Special Court had no jurisdiction under section 4 to hear a case with respect to offence falling under section 302 or section 307, P. P. C. If committed within-the terms of paragraphs (a), (ii-a), paragraphs (b) & (c) in the Schedule to the Act. The only point was that since the Fire Arm Expert had opined that the Klashnikov recovered from the petitioner was not used in the commission of offence, hence the jurisdiction of Special Court under section 4 of the Act was not attracted. We are afraid, this contention is wholly devoid of any merit. Undeniably the Special Court is required to determine its jurisdiction on the basis of first information report, prosecution evidence and any material available at the time of taking of cognizance of the case. This point came up for consideration before a Full Bench of this Court in Azhar Hussain v. Government of Punjab 1992 PCr.LJ 2308. In this case the F.I.R. Bearing No.251 of 1988 was registered on 1-12-1988 under section 302/307/ 148/149 of P.P.C. Against 18 persons at Police Station Wandha, District Gujranwala for triple murders. According to the first information report, one of the petitioners was armed with mauser, while the other were equipped with Klashnikov. The Government referred this case to Special Court. The petitioner thereupon filed a Constitution Petition No.3903 of 1989 challenging the notification of the transfer of the case to Special Court.
Later on the Special Court for Speedy Trials Ordinance, 1983, lapsed and did not become the Act of Parliament.. The case was taken up by the learned Additional Sessions Judge, Gujranwala, who referred the case to Special Court constituted under the Act. When the cognizance of the case was taken up by the Special Court, the petitioner filed an application wherein challenge was thrown to its jurisdiction. This application was rejected on 12-2-1991. The petitioner thereafter filed a Constitution petition which was decided by a Full Bench of this court. The main point before Full Bench was that the Klashnikov alleged to have been used in the commission of the offence had not been recovered by the police and so the police had not been able to bring any material showing that the case was fit for trial by the Special Court. Dealing with this point, his Lordship Mr. Justice Malik Muhammad Qayyum, speaking for the Bench, said: -- "There is no dispute that according to the allegations contained in the F.I.R, as also the report under section 173 of the Cr.P.C. One of the accused had allegedly used Klashnikov during the commission of the offence. That being so, the case clearly falls within the mischief of the, above reproduced paras of the Schedule. The argument of the learned counsel that as Klashnikov was not recovered and that none of the petitioners was arrested has hardly any relevance. The jurisdiction of the Court is to be determined on the basis of the allegations contained in F.LR. And the case set up by the prosecution. The truthfulness or otherwise of the allegations can only be determined at the time of trial after recording evidence. Moreover mere fact that the Klashnikov had not been recovered can hardly justify the conclusion that it was not at all used.
As regards the other contention of the learned counsel that the prosecution is mala fide we suffice by observing that the particulars of the mala fide have not been stated in the petition nor any proof in support thereof is available. We do not wish to comment any further on this aspect of the matter lest prejudice be caused to the case of the petitioners before the trial Court The view was approved by the Supreme Court in Allah Din v. State 1994 SCM R 717.
7. Applying the above principle to the facts and circumstances of this case we have no hesitation to hold that the report submitted by the Fire-Arm Expert cannot be treated as a circumstance leading to inference that no unlicensed Klashnikov recovered from the accused was used in the commission of the offence. The allegation of use of the aforenoted weapons is mentioned in supplementary statement of the complainant, the statement of the prosecution witnesses. The question as to whether any reliance can be placed upon these reports is to be answered by the trial Court on recording the evidence of the parties and after dealing with the aforenoted report within the terms of section 510, Cr.P.C. No doubt any report of any Chemical Examiner or Assistant Chemical Examiner to Government or of the Chief Chemist of the Pakistan Security Printing Corporation Ltd. Or any Serologist, Finger Print Expert or Fire Arm Expert appointed by Government upon any matter or thing duly submitted to him for examination or analysis, can be used as evidence in any inquiry, trial or other proceeding under Cr.P.C. Such opinion is one of the species of the evidence and the Court had been given powers to summon such person for the purpose of examination. The proviso to section 510, Cr.P.C. Makes it amply clear that any such opinion is of no conclusive and decisive significance and had to be assessed by the trial Court. This being the position the contentions raised by the learned counsel for the petitioner pale into insignificance and are not such calling for interference in Constitutional jurisdiction: The order of the learned Special Court dated .24-7-1995 is eminently correct, just and in congruent with law and is found to be unexceptionable.
8. As a result of above discussion, we do not find any merit in this petition and the same is dismissed in limine.