' Petitioner/complainant had charged the accused/respondent for the murder of his brother Muhammad Arif by use of klashnikov rifle vide F.I.R. No,22 of Police Station University registered on 21-1-1992. After arrest of the accused/respondent, challan was submitted in Court and the file was received in the Sessions Court D.I. Khan on 14-10-1993 which was entered as Sessions Case No,34 of 1993. On taking cognizance and after observing the legal formalities, the accused was charge- sheeted who denied the charge and claimed trial. The learned Sessions Judge after recording evidence of the prosecution acquitted the accused of the charge vide his impugned judgment dated 14-5-1994. Hence this revision petition.
2. The instant revision petition was admitted to full hearing, inter alia, on the ground that in view of the law laid down in 1994 SCM R 717 only the Special Judge empowered under the Suppression of Terrorist (Special Courts (Amendment) Act, 1990 is competent to adjudicate upon the matter and the Sessions Judge was not competent to take cognizance of the matter as the prosecution case was that the deceased was done to death by the accused/respondent by use of klashnikov.
3. Learned counsel for the petitioner in support of his legal contention relied upon Allah Din and 18 others v. State 1994 SCM R 717 and unreported judgments of this Court delivered in Nasib Khan v.
State Criminal Appeal No,24 of 1992, decided on 3-11-1994 and titled Muhammad Subhan v. The State Criminal Appeal No,52 of 1996, decided on 12-6-1997.
4. On the other hand, learned counsel for the accused/respondent contended that the petitioner/complainant never objected to the jurisdiction of the Sessions Judge during trial who was also empowered as a Special Judge under the Act (ibid). Mere omission to mention his designation as Special Judge does not vitiate the trial. In support of his contentions reliance was placed on unreported judgments of this Court passed in Amrud Khan v. State Criminal Appeal No,21 of 1992, decided on 12-9-1995 and Alam Khan v. The State Criminal Appeal No,30 of 1994, decided on 3-7-1995.
5. Learned counsel for the State adopted the arguments of the learned counsel for the petitioner and submitted that an order passed without jurisdiction is nullity in the eyes of 1aw. Even if the petitioner has not objected to the jurisdiction of the Sessions Judge at the time of trial would not empower him to take cognizance of the matter falling exclusively within the jurisdiction of the Special Judge being a scheduled offence under the aforesaid Act.
6. After hearing learned counsel for the parties and going through the law on the subject and the cited judgments, I have come to the irresistible conclusion that the Sessions Judge was not competent to adjudicate upon the matter, as from the very registration of the case, the prosecution's case was that by use of klashnikov the accused/respondent committed the murder of the deceased. In Allah Din's case, their Lordships of the Supreme Court upholding the view expressed by a Full Bench judgment of the Lahore High Court in PCr.LJ 1992 page 2308 observed as follows:-- "Question of jurisdiction can be determined on the basis of F.I.R. And other material which is produced by the prosecution at the time of presentation of challan. On the basis of that material, the Court is to decide whether cognizance is to be taken or not. In the instant case, the incident is seen by six eye-witnesses and on our query that whether the eye-witnesses have supported the allegations in F.I.R. About use of Klashnikov like weapon, learned counsel for the petitioner replied in the affirmative. In the circumstances material available with prosecution in this case is sufficient to justify invocation jurisdiction of the Special Court."
7. In the instant case, there is no dispute on the point that the deceased was done to death by use of klashnikov. The unreported judgments cited by the petitioner's counsel are based on the dictum laid down by the Supreme Court in Allah Din's case.
8. In the unreported judgment cited by the accused/respondent's counsel (Criminal Appeal No,21 of 1992), it was observed that the amendment in the Suppression of Terrorist Activities (Special Courts) Act, 1975 was enacted in 1990 with a retrospective effect from 2-11-1988 but the occurrence of the cited judgment took place on 23-7-1988 prior to the effective date of the amendment.
The Sessions Judge took cognizance of the case on 7-6-1989 as the incident in the said judgment was much earlier than the amendment brought in the Special Courts Act, 1975, therefore, it was held that the Sessions Judge was competent to take cognizance of the matter and decide the matter under the Cr.P.C. In another unreported judgment of Criminal Appeal No,30 of 1994 relying on rule laid down in Payo Gul's case PLD 1960 SC 307, it was held that the Sessions Judge has been notified under section 3 of the Special Courts Act, 1975 and the omission to mention his description as Special Judge does not vitiate the trial. In the cited judgment, the objection was raised by the accused while in the instant case; the objection has been raised by the complainant/petitioner.
The facts of the cited judgment are different than those of the case in hand as there the incident had taken place on 12-1-1990 before the enactment of the Suppression of Terrorist Activities (Special Courts (Amendment) Act, 1990, while in the instant case, the incident was reported on 21- 1-1992, after the enactment in the amendment (ibid).
9. For the reasons stated above, and without going into the merits of the case, placing reliance on the dictum laid down in Allah Din's case by the August Supreme Court of Pakistan, I accept this revision petition, set aside the impugned judgment of the Sessions Judge dated 14-5-1994 and remand the case back to the trial Court of Special Judge D.I. Khan for trial de novo, under the provisions of Special Courts Act, 1975. The accused/respondent is present in Court, taken into custody and sent to jail to await his trial as an under-trial prisoner. He shall be produced before the Special Judge D.I. Khan on 20th instant and is at liberty to agitate his plea of bail afresh there. The trial Court shall conclude the trial within a minimum possible time by holding day today hearing.
The office shall transmit record of the case back to the said Court forthwith.