MUHAMMAD NASEEM' CHAUDHRI, J.- Crime case no. 103 dated 18.8.1997 stands registered at P.S. Shah Nikdar District Sargodha under Sections 353/186/324/34 Pakistan Penal Code at the instance.
Of Muhammad Iqbal constable posted in Police Station Shah Nikdar with the allegation that along with Manzoor Husain ASI and Safdar Iqbal constable both posted in P.S. Shah Nikdar, he was going in official car No. AJKA/1213 being driven by Abdul Shakoor. One Muhammad Ramzan accused of case PIR No. 102/97 registered at the same police station was also with them who was being taken for his medical examination. At 9.00 A.M. They reached Rajbah Naurang within the area of Otak No.
152. Two motorcycles arrived there: On one motorcycle being driven by Tariq co-accused. Rashid petitioner was sitting on his back while armed with a rifle in violation of ban about pillion riding. The other motorcycle was being driven by Faisal Hayat co-accused. The accused persons were stopped and effort was made to apprehend them. Faisal Hayat co-accused left the motorcycle and went towards the High School situated at a near distance who fired at Manzoor Husain ASI with his pistol which hit his left flank and the abdomen. Thereafter Rashid petitioner fired which hit the back side of the car. All the accused persons are said to have made good their escape on one motorcycle. Manzoor Husain ASI was removed to the hospital who fortunately has survived.
'2'. In the case the investigation has been conducted. The motorcycle and the damaged car have been taken into possession. Manzoor Hussain ASI has been got medically examined. Even though Rashid petitioner was arrested and his physical remand was obtained, the recovery of any weapon has not been effected.
3. After completing the investigation the police has submitted the challan in the Court of the learned Judge for Anti-Terrorism, Sargodha Division Sargodha.
4. The bail application of Rashid petitioner accused has been dismissed by the said Court who has entered the, portal of this Court to try his luck to be admitted to bail.
5. We have heard the learned counsel for the petitioner as well as the learned State counsel and gone through the record before us.
6. At the very outset we would express that the full name of the petitioner is Inamullah Rashid.
7. This is the proper stage to hold as to whether or not the learned Judge appointed under the Anti- Terrorism Act, 1997 has the jurisdiction to hold the trial and it is also proper to take into account as to whether the trial has to be held by the learned Judge appointed under the Suppression of Terrorists Activities (Special Courts) Act, 1975 or by the learned Area Magistrate. A perusal of the Anti-Terrorism Act, 1997 has made out that the allegations against the petitioner and his co- accused and the aforesaid alleged offences are not covered by the definition of that "Terrorist Act" narrated under Section 6. It is a matter wherein the accused persons are alleged to have taken the law in their hands when challenged by the police party about the violation of ban regarding pillion riding, A perusal of the Schedule to the Anti-Terrorism Act, 1997 has made out that the alleged offence do not fall therein. Fortunately Manzoor Husain ASI has survived by the grace of God. No doubt he is a member of the police force but Sections 324/353/186 Pakistan Penal Code are not the offences mentioned in the aforesaid Schedule so as to confer jurisdiction on the learned Judge appointed under the Anti-Terrorism Act, 1997. This aspect is determined in this manner.
8. About the jurisdiction of the learned Judge under the Suppression of Terrorists Activities (Special Courts) Act, 1975, we have to refer to its Schedule. Section 307 Pakistan Penal Code was applicable at the time of the enforcement of the aforesaid Act of 1975 which stands substituted by Section 324 Pakistan Penal Code. Clause (ii) to the Schedule to the Suppression of Terrorists Activities (Special Courts) Act, 1975 is attracted incase any offence is committed under clause (b) and clause (c) of the said Schedule. Clause (b) deals with the offences punishable under the Explosive Substances Act, 1908 while clause (c) deals with the offences committed with the light or heavy automatic or semiautomatic weapons, in the instant case allegation against the accused persons is that they used the rifle and pistol and even in the FIR it is not narrated that the said weapons were automatic or semi-automatic. Hence it can safely be expressed that the aforesaid offences are not triable by the learned Judge appointed under the Suppression of Terrorists Activities (Special Courts) Act, T975. It shall not be out of place to express that Sections 353 and 186 Pakistan Penal Code are also not the scheduled offences under the aforesaid Act of 1975. We hold that the learned Judge appointed under the aforesaid Act of 1975 has no jurisdiction to hear the case in view of Section 4 of the said Act of 1975.
9. In the light of what has been held above, the Court before whom the, challan has to be submitted by the SHO is none else than the learned Area Magistrate and obviously the bail application-shall have to be first disposed of by him.
10. According-to Note (ii) rule 14 Chapter X of the High Court Rules and orders Volume III. a bail application has to be first moved before and disposed of by the Court of original jurisdiction. As such we refrain from disposing of this bail application on merits. The petitioner may move the learned Ilaqa Magistrate Sargodha to obtain the. Required and desired relief.
11. With our aforesaid findings, this bail application is disposed of in the aforesaid terms.
12. If the challan has been submitted before the learned Judge appointed under the Anti-Terrorism Act, 1997, he shall immediately send the file to the learned Sessions Judge Sargodha who shall entrust the same to the learned Ilaqa Magistrate P.S. Shah Nikdar District Sargodha for proceeding further in accordance with law.