FAQIR MUHAMMAD KHOKHAR, J.---A case F.I.R. No. 1295 dated 7-11-1994 under section 302/34, P.P.C. Was registered at Police Station, Attock Khurd, District Attock, against the petitioners at the instance of one Muhammad Iqbal. A separate case under section 13 of the Arms Ordinance, 1965, was also registered by the Police against the petitioners. After usual investigation, the Police submitted a Challan before the Special Court No.1, Punjab, Rawalpindi, constituted under the provisions of the Suppression of Terrorist Activities (Special Courts) Act, 1975. The Special Court, thus, constituted took the cognizance of the offence. The petitioners filed the writ petition calling in question the validity of the aforesaid Act of 1975 as being inherently discriminatory and violative of the fundamental rights particularly the provisions of equality and equal treatment and protection of laws to all the citizens as guaranteed by the Constitution. It was further challenged on the ground that the Presiding Officer appointed under the said Act of 1975 might not be a regular serving Judicial Officer under the control of the High Court and such Presiding Officers did not inspire confidence essential for the proper and satisfactory administration of justice. The writ petition was admitted to regular hearing on 27-7-1995 and the proceedings before the trial Court were directed to be stayed.
2. While the proceedings before this Court were pending, the petitioners moved C.M. 3021/95 for summoning the record of all the proceedings in the case from the Special Court as well as from the Magistrate 1st Class, Attock, a Roznamcha of the Police Station for the period from 7-11-1994 to 12-8- 1995, Registers of Malkhana and the Judicial Malkhana from 7-11-1994 to 12-8-1995. The petitioners also moved Criminal Original No.84-W/95 in the writ petition. The Police also submitted a Supplementary Challan in the case before the learned Special Court.
3. Respondent No.3 (the complainant in the criminal case) moved C.M. No. 179-M/97 whereby a Notification dated 11-12-1996 by the Government of the Punjab, Home Department, Lahore, was placed on record. The Special Court was constituted in consultation with the Hon'ble Chief Justice of the Lahore High Court, Lahore. The District and Sessions Judge, Rawalpindi, was designated to be the Special Court for Rawalpindi Division, Rawalpindi.
4. Malik Muhammad Jaffar, Advocate, the learned counsel for the petitioners has submitted that the provisions of sections 3, 4 and 4-A of the Suppression of Terrorist Activities (Special Courts) Act, 1975, have already been declared unconstitutional and the notifications appointing the Presiding Officers of the Special Courts were quashed by a Full Bench of the Lahore High Court, Lahore. In the case of Imran v. Presiding Officer, Punjab Special Court No. VI, Multan and 2 others (PLD 1996 Lahore 542). He adopted the same reasons while addressing the arguments before us. He further submitted that the Notification dated 11-12-1996 had not been issued by the Federal Government but was issued by the Provincial Government. The same was also invalid on the ground that it had been issued without removing the defects pointed out by their Lordships in the case of Imran (supra). He further submitted that the judgment of the Full Bench was still holding the field in spite of the same having been suspended and the leave having been granted by the Hon'ble Supreme Court of Pakistan against that judgment. He also submitted that even otherwise the offences alleged to have been committed by the petitioners did not attract the jurisdiction of the Special Court and that the offences were not the scheduledoffences within the meaning of the said Act of 1975. He pointed out that the original Challan by the Police had been submitted on 5-12-1994 before Special Court whereas the Supplementary Challan was submitted by the Police on 12-8- 1995 after getting a certificate dated 1-8-1995 from the Armourer showing the automatic weapons of .322 bore. He stated that once the Court had taken cognizance of the case, the weapons being a case property became custodia legis and the Police was not competent to take the weapons out of Malkhana for inspection and expert opinion by the Armourer particularly without obtaining the orders from the Court and during the stay of proceedings before the trial Court. He relied on the cases of Ghulam Shabbir and others v. Punjab Special Court, Faisalabad and others (1992 PCr.LJ 1932) (F.B.), Asif A.I Zardari v. The State (1991 PCr.LJ 595), Neelam Mowaz v. The State (PLD 1991 SC 640), The State v. Bakhtiar Ahmad (1995 SCMR 1285) and Sabir Hussain v. Muhammad Sliafiq Butt, etc. 1997 MLD 1141 in support of his contentions that the Special Court had no jurisdiction to take cognizance of the offence or to try the petitioners. He also relied on the cases of Syed Bahadur A.I Shah v. Muhammad Anwar and another (PLD 1959 (W.P.) Lahore 141) and Ghulam Nabi v. The State (PLD 1991 (W.P.) Lahore 205) to support his contention that after the Court was seized of the case, the custody of the property was to be regulated by the Court and it was not open to the Police to take the weapons out for obtaining the expert opinion.
5. On the other hand, Malik Rab Nawaz Noon, Advocate, the learned counsel for respondent No.3 submitted that in the F.I.R., Interim Challan and the Supplementary Challan as well as in the recovery memos. Of the weapons recovered from the petitioners, the bore of the weapons, i.e., .222 was specifically mentioned which left no doubt that the automatic weapons had been used in the commission of the offence of murder. He referred to Rule 22.18 of the Punjab Police Rules to contend that no illegality had been committed by the Police in having examined the weapons of the offence by the Armourer as the empties had already been taken into custody .By the Police immediately after entering into the investigation of the case. He further submitted that for examining limited question as to whether a case fell within the jurisdiction of the Special Court or not, the only thing to be looked into was the F. I. R. And the other material of the prosecution as produced before the Special Court. He referred to the judgments in the cases of Azhar Hussain and others v.
Government of Punjab and others (1992 PCr.LJ 2308), Allah Din and 18 others v. The State and another (1994 SCMR 717) and Bago and 2 others v. The State (1996 P.Cr.LJ 1818) in support of his proposition. The learned counsel emphasised that this Court is not to undertake a deeper appreciation of the evidence produced by the prosecution in these proceedings as this was the exclusive function of the learned Special Court. He submitted that if prima facie view was taken of the materials placed before the Special Court, the jurisdiction of the Special Court was clearly attracted for taking cognizance of the offence and trial of the case. The learned State Counsel also supported the submissions of the learned counsel for respondent No.3.
6. We have perused the record and heard the learned counsel for the parties at some length. Under section 3 of the Suppression of Terrorist Activities (Special Courts) Act, 1975, the Federal Government may or if directed by it, the Provincial Government can constitute the Special Court consisting of a person who has been, or is, or is qualified for appointment as, Judge of a High Court or if he has exercised the powers of a Sessions Judge or an Additional Sessions Judge for not less than three years. Under section 4 of the Act, notwithstanding anything in the Code, the scheduled offences are triable exclusively by a Special Court. Under the Schedule to the Act, the offence punishable under section 302, P.P.C. If committed in the course of the same transaction in which an offence is committed in respect of automatic or semi-automatic weapons such as Klashnikov including semi-automatic or automatic pistols or any other type of assault-rifle exclusively triable by the Special Court.
7. The Full Bench of this Court in the case of Imran (supra), while striking down the sections 3, 4, 4-A of the said Act also directed the Government to notify the Sessions Judges/Additional Sessions Judges as the Special Courts under Act XV of 1975. The Provincial Government as the delegatee of the Federal Government has constituted the Special Court consisting of the District and Sessions Judge in consultation with Hon'ble the Chief Justice of the High Court. There is no doubt that the terms and conditions of service of District and Sessions Judges are not in the hands of the Executive but in the High Court. There is no question of appointment of any handpicked persons being appointed as Special Judges by the Executive. For all intents and practical purposes, it is Hon'ble The Chief Justice of the High Court who appoints or removes or transfers a District and Sessions Judge and to designate such a person as a Presiding Officer of the Special Court. The Executive has, therefore, no say in the matter of appointment of a Presiding Officer of the Special Court except by way of issuing formal orders in accordance with the recommendation of Hon'ble the Chief Justice. As to the meaning of consultation, suffice it to refer to the cases of Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324) and PLD 1997 SC 84. In our view, no exception can be taken to the validity of Notification dated 11-12-1996 of the appointment of the District and Sessions Judge, Rawalpindi, to the Presiding Officer of the Special Court for Rawalpindi Division, for trial of scheduled offences under the Act of 1975. The judgment of the Full Bench has already been suspended and leave to appeal there against has already been granted by the Hon'ble Supreme Court of Pakistan. The matter is, therefore, sub judice before the apex Court. We, therefore, refrain from expressing any opinion in the matter. In adopting this course, we find support from the judgment of five Judges of this Court in the case of Khawaja Ahmad Tariq Rahim v. Federation of Pakistan and another (PLD 1991 Lahore 78) at pages 108 and 168 where the matter of the validity of Constitution (8th Amendment) Act, 1985, being sub judice before the Hon'ble Supreme Court was left undecided. From the contents of the F.I.R. And other materials, we find that the scheduled offence was prima facie attracted so as to take cognizance of the offence and try the accused. We also hold that in these proceedings, we are not expected to hold a trial within a trial for the purpose of determining the question whether the jurisdiction of the Special Court was or was not attracted in view of the dictum laid in the case of Liaqat A.I and 11 others v. The State (1992 SCMR 372). There is another reason for not interfering and determining the question of constitutionality of Act 1975 as this case can very well be decided on other grounds such as the F.I.R. And the other materials of the prosecution. Reliance can be placed on the case of Mst. Kaneez Fatima v. Wali Muhammad and another (PLD 1993 SC 901) at page 915). We have purposely avoided expression of our opinion on the merits of the case lest it may pre-judice the case of either side during the course of trial.
8. For the foregoing reasons, we do not find any force in this writ petition which is dismissed with no order as to costs.
9. The requisitioned record be returned.