Through this writ petition, the petitioner seeks declaration of the order, dated 14-6-1995 passed by the learned Additional Sessions Judge, Toba Tek Singh to be illegal, without lawful authority and of no legal effect whereby the learned Additional Sessions Judge held that the matter exclusively falls within the domain of learned Special Court for Suppression of Terrorist Activities.
2. I have heard the learned counsel for the petitioner and the learned Law Officer and the precedents cited by the learned counsel for the petitioner.
3. It has been conceded by the learned Additional Advocate-General accompanied by the police official that neither the kalashnikov has been used nor recovered. The police official further admits that police is going to submit the challan in ordinary Court.
4. Respectfully relying on Azhar Hussain and others v. Government of Punjab and others 1992 PCr.LJ 2308 wherein it was held by a Full Bench of this Court that where from the F.I.R. And the report under section 173, Cr.P.C. It was shown that an accused had used a kalashnikov during the commission of offence the case would fall within the mischief of the schedule of the Act and the case would be triable by a Special Court constituted under the said Act. It was further held that the jurisdiction of the Court was to be determined on the basis of the allegations contained in the F.I.R. And the case set up by the prosecution in the report under section 173, Cr.P.C. It is true that in the F.I.R. It is alleged that kalashnikov had been used by Bashir Ahmad co-accused but in the report under section 173, Cr.P.C. It is not the case of the prosecution that any kalashnikov had been used during the occurrence. In these circumstances, I find myself in agreement with the learned counsel for the petitioner. Consequently, it is held that the case in hand was triable by a Sessions Court and the Special Court constituted under the Act had no jurisdiction to try the same. The impugned order passed by the learned Additional Sessions Judge is held to be illegal, without lawful authority and of no legal effect. The writ petition is allowed and the impugned orders are set aside.