1. ' IFTIKHAR MUHAMMAD CHAUDHRY, J.--Muhammad Karim appellant has instituted Criminal Acquittal Appeal against judgment dated 31-3-1997 passed by Additional Sessions Judge, Panjgoor whereby respondent Mumtaz Ahmed has been acquitted of the charge under section 454, P.P.C. He has also filed criminal revision wherein prayer has been made to enhance adequately sentence awarded to respondent under section 448, P.P.C. By means of same judgment.
2. ' Facts of the prosecution case are that on 31-12-1995 respondent entered in the house of complainant Muhammad Karim (appellant) and opened fire which caused injuries to complainant.
3. However, respondent was overpowered by the inmates of the house and till the arrival of police party he was tied with ropes and on their arrival his custody was handed over to them. As such F.I.R.
4. No,'128 of 1995, under sections 325, 454, P.P.C. Was registered at Police Station Panjgoor. The complainant and injured were shifted to hospital as later also received injuries. During investigation the rope, blood-stained earth, one live cartridge and one empty of T.T. Pistol was recovered by the police from the place of incident; whereas in hospital Abdul Rehman brother of complainant handed over a pistol to the police and according to him it was the crime weapon with which the respondent fired upon his brother Muhammad Karim. It is also stated that in the hospital police recovered 3 live cartridges of T.T. Pistol from the coat of the respondent. On completion of investigation respondent was sent up to face charge of attempt to murder and house-trespass.
5. Additional Sessions Judge, Panjgoor framed charge against respondent on 27-3-1996 to which he pleaded not guilty.
6. ' Prosecution examined following finesses to substantiate accusations against the accused: ' P.W.1._Muhammad Karim son of Usman (complainant): He narrated facts about the incident according to which door of his house was knocked, his son Khuda-e-Nazar went to attend the call and on return informed that a person wearing black coat had come as at that time it was raining, therefore, complainant thought probably some guest had come, as such he asked to his son that said person be allowed to sit in 'Baithak'. In the meanwhile he also went towards the main gate.
7. When he reached there he heard that respondent is enquiring from his son whether his father is present at home. Boy replied in affirmative and when the complainant reached more near the door, he saw that respondent is standing there to whom he recognized. At that time he had a T.T.
8. Pistol in his hand with which he opened fire upon him out of which one fire hit on his hand. On this he took turn for going back towards the house, but when he reached near the room of his brother he saw that respondent is coming towards him by firing, therefore, another bullet hit on his right hand's wrist. In the meanwhile complainant though that perhaps he would not be in a position to reach up to the room, therefore, he took turn but in the meanwhile respondent was present very close to him and again he fired upon him which hit on left side of his abdomen due to which he fell down and respondent started running. But he got slipped. In the meanwhile his son Khuda-e- Nazar, Abdul Rahim and his brother Abdul Rehman reached there and with the help of womenfolk they overpowered the respondent and he was tied with the rope. They were beating to him but the witness asked him not to do so and he sent his brother to lodge report; ' P.W.2._Khair Muhammad: He accompanied police to the house of complainant after the incident and noticed that respondent is lying there tied. He was arrested and Fard Exh.P/2-A was prepared which was signed by him. In his presence blood-stained earth was also taken into possession vide Exh.P/2-B. Further he stated that in hospital Abdul Rehman brother of the complainant produced a TT Pistol .30 bore made in Pakistan with magazine to SH and disclosed that with this pistol his brother was injured by the respondent. The S.H.O. Took it into possession vide Fard Exh.P/2-C. Pistol was also produced in the Court by the witness as Article 3. The blood-stained clothes of respondent including the coat was also taken into possession by the police vide Exh.P/2-D. He further stated that in the collar of the coat a stone was also found lying. He produced the stone as Article 4; ' P.W.3._Abdul Qadir son of Mir Qadir Dad: He being S.I. Police on the day of incident accompanied Muhammad Naseem, S.H.O. And other police officials to Civil Hospital, Panjgoor where respondent was admitted in injured condition. He stood witness to Exh.P/2-E in respect of taking into possession his blood-stained clothes. In his presence 3 live cartridges of T.T. Pistol, one wrist-watch and Rs,I7 vide recovery memo. Exh.P.W./3-A were also recovered from the possession of respondent. He produced cartridge of TT and wrist-watch as Exhs.P16 and 7.
9. ' P.W.4. Abdul Rehman son of Muhammad Usman: He is the brother of complainant and also eye- witness of the incident. He has seen respondent running after his brother Muhammad Karim and firing upon him. He with the assistance of womenfolk overpowered the respondent and his hands and feet were tied. He also snatched pistol from the respondent and thereafter managed to shift his brother to hospital. In the hospital he handed over the pistol to police which was taken into possession vide Exh.P/3-C produced by Khair Muhammad son of Jumma Khan; ' P.W.5. Abdul Rasheed son of Ahmed: He is the witness of circumstances. According to him on the day of incident when he was going to whom respondent Mumtaz was also behind him. When he entered into house he heard knock at the door, as such he sent his brother Tariq to attend the knock. When his brother came back he enquired from him that who was on the door. He told him that one person was enquiring about the house of Muhammad Karim. After some time he heard the commotions, besides the house of Muhammad Karim. As such he rushed there and saw that Muhammad Karim is lying in an injured condition. He was asked by the ladies to bring his uncle for shifting the injured Muhammad Karim to hospital. At that time he had also seen that in the foreclosure in the house of Muhammad Karim respondent is also present and he has been tied with the ropes. At that time Abdul Rehman had also snatched the pistol from the respondent. Then he brought the vehicle and shifted Muhammad Karim to hospital. According to him the pistol was handed over by him to police in the hospital; ' P.W.6. Muhammad Alam son of Haji Abdullah: He is also witness of the circumstances. According to him he heard the commotions. He was attracted towards the house of Muhammad Karim on hearing smears of the ladies and when he went there he saw that respondent Mumtaz is lying there, his forelimbs were tied. At that time ladies and Abdul Rehman were present there. Abdul Rehman had already snatched pistol from the respondent. He also saw that Muhammad Karim is lying in the injured condition near the room. Then he went to inform the police on telephone and when he came back Muhammad Karim had already been shifted to hospital; ' P.W.7. Abdullah son of Muhammad Usman: He is younger brother of the deceased. On the day of incident when he reached in front of his house he came to know that his brother Muhammad Karim has been fired upon by respondent due to which he has been injured. When he reached in the boundary wall of his house, he saw respondent lying tied; whereas his brother Muhammad Karim had already been shifted to hospital; ' P.W.8. Muhammad Saleem son of Panj Shanbay: His statement is identical to the statement of P.W.
10. Abdullah because he also learnt about the incident in the house of Muhammad Karim.
11. Subsequently in his presence on 6-2-1996 appellant Muhammad Karim handed over his clothes to S.H.O. Which were taken into possession by him vide recovery memo. Exh.P.W./8-A; ' It may be noted that for the purpose of treatment respondent was shifted to Quetta and after recovery when he came back to Panjgoor then he handed over his clothes to police. He further explained that shirt of Muhammad Karim had two holes of pistol; one on left side of the body and the other in the cut of left arm of the shirt. He identified those clothes in the Court; P.W.9. Dr. Abdul Samad son of Haji Abdul Salam: According to him on 13-12-1995 he examined the appellant and noticed 3 injuries on his person; thereafter he referred him for treatment to Quetta vide Exh.P.W./9-A. He also produced Medical Certificate Exh.P.W./9-B; ' P.W.10. Naseem Ahmed son of Badal Bakhsh: He being S.H.O. Narrated the story of prosecution case and steps taken by him to complete the investigation. He prepared the injuries report of the appellant Exh. P.W./10-C as well as of the respondent being P.W./10-D. According to him respondent Mumtaz was also serious, therefore, he was informed by the Doctor that his treatment is not possible at Panjgoor. As such Magistrate accompanied him to hospital who released 'Mumtaz on bail for the purpose of shifting to some other hospital for treatment. He also produced Murasala Exh.P.W./10-E which was sent from hospital to police station for registration of the case; ' P.W.11. Muhammad Anwar son of Gazzi: On 24-1-1996 he took over charge as S.H.O. Police Station Panjgoor. At that time case was under investigation. During investigation he enquired from respondent to produce license of pistol which he failed to do, as such he registered a separate case under section 13-E of the Arms Ordinance against him. He also submitted challan of the instant case as Exh.P.W./11-A.
12. ' Respondent was examined under section 342, Cr.P.C. Wherein he denied that he entered in the house of complainant or caused injuries with the pistol fire. He also denied that a pistol was recovered from his possession. However, he admitted that he was forcibly caught hold and was tied. He further stated that he was unconscious when police picked up him from the place of incident. He urged that Abdul Rehman had given a pistol to police; otherwise nothing has been recovered from his possession. In his statement on oath under section 340(2), Cr.P.C. He stated that on the day of incident he was standing in Chatkan Bazar at 1-00 p.m. Where he met with Master Muhammad Karim Azad who was riding on a motorcycle. He gave offer to him to accompany him to his home where they will take meal and will also have literary chit chat. Muhammad Karim also told him that thereafter he would drop him at his home. Since he was on foot, therefore, he agreed to accompany with the appellant. As there was no 'Baithak' in his house, therefore, he took him inside the room. When they were talking to each other Abdullah brother of appellant Muhammad Karim Azad, who is sympathiser of B.N.M. Hayee Group also reached there. He did not like their conversation, therefore, he attempted to beat up him, but appellant intervened due to which a pistol bullet hit Muhammad Karim. The pistol was with Abdullah. The inmates of the house to save the skin of Abdullah from the liability caught hold of him and he was beaten up with stones.
13. Thereafter he was tied. His plea was that he is innocent and the brother of Muhammad Karim had fired upon the appellant Muhammad Karim and he has been wrongly involved in the case. No recovery of the pistol. Has been effected from his possession.
14. ' On completion of trial learned Additional Sessions Judge, Panjgoor vide judgment dated 31-3-1997 acquitted the respondent of the charge under section 324, P.P.C. However, he was convicted/sentenced him on altering the charge under section 448, P.P.C. To undergo 4 months and fine of Rs,1,000. Admittedly learned trial Court did not frame any point for determination in terms of section 367, Cr.P.C. Nor discussed evidence available on record. Judgment was passed in a slipshod manner contrary to set principles of writing of judgment.
15. ' Be that as it may, the prosecution's story, was disbelieved mainly for two reasons; firstly that there is no explanation as to how the accused was injured seriously coupled with the fact that recoveries of articles specially pistol and live rounds in hospital is very doubtful and objectionable. Thus, for these two reasons he acquitted the accused from the charge under section 324, Qisas and Diyat Ordinance.
16. ' It may be noted that in the judgment even the learned Judge has not bothered to write that from which section of Qisas and Diyat Ordinance, he has acquitted the accused. It depicts the non- application of the mind on the facts of the case by the learned Presiding Officer. However, he convicted/sentenced the appellant under section 448, P.P.C. Because he could not satisfactorily explain that for what purpose he entered into the house of complainant. In our opinion such observation is also the result of non-reading the file by the Presiding Officer. In this behalf he could have only read the statement of the respondent (accused) under section 340(2), Cr.P.C. Alone.
17. Anyway since conviction/sentence under section 448, P.P.C. Has not been challenged by the respondent in appeal, therefore, now he would be bound with these findings subject to the result whatever it could be.
18. Mr. Azizullah Memon learned counsel for appellant contended that the impugned judgment has been passed without jurisdiction by Additional Sessions Judge as according to him in Murasala Exh.P.VV./10-E, P.W.-Naseem Ahmed, S.H.O. Had incorporated that respondent fired upon appellant Muhammad Karim with T.T. Pistol due to which he sustained injuries on his left hand as well as on the left side of his abdomen. During investigation P.W.-Abdul Rehman produced T.T. Pistol to police which was taken into possession vide Exh.P.W./2-C produced by Khair Muhammad. During investigation recovery of empty cartridges of T.T. Pistol and a live cartridge of T.T. Pistol vide Exh.P.W./10-B were also recovered, therefore, prima facie it was established that respondent had committed a scheduled offence triable by Special Court under the Suppression of Terrorist Activities Act, 1975. The Additional Sessions Judge, Panjgoor admittedly was not a special Court, therefore, it had no jurisdiction to try the offence.
19. ' Mr. Tahir Muhammad Khan learned Advocate appearing for respondent could not meet the objection put forth by appellant's counsel except contending that since no cause of attempt to commit Qatl-e-Amd or causing injuries intentionally to appellant has been made out, therefore, learned Additional Sessions Judge had jurisdiction to try the offence. He explained that no recovery of T.T. Pistol has been effected from the possession of appellant because admittedly after a considerable time from incident i,e, 3/4 hours so-called TT Pistol was produced by P.W. Abdul Rehman, brother of appellant Muhammad Karim in the hospital. Had P.W. Abdul Rehman really snatched a pistol from respondent it would have been produced to the police in the house of Muhammad Karim when they have gone there on receiving information of incident and from where they untied the respondent arrested him and brought him to hospital, therefore, merely on allegations that TT Pistol has been recovered from respondent the Special Court functioning under the Act of 1975 will not assume the jurisdiction. He also emphasised that no prejudice has been caused to appellant or prosecution if the trial has been conducted by Additional Sessions Judge at lianjgoor.
20. ' Mr. Noor Muhammad Achakzai learned Additional Advocate-General contended that honourable Supreme Court had laid down a test in the judgment reported in 1994 SCM R 717 to determine whether the case will be triable by the Ordinary Criminal Court or by the Special Court under the Suppression of Terrorist Activities Act. In this judgment it has been stated that if F.I.R. Discloses that a scheduled offence under Suppression of Terrorist Activities, has been committed, then ordinary Court will cease to have jurisdiction and matter will be triable by the Sessions Judge.
21. ' He further emphasised that truthfulness or falsity of allegations could only be determined after trial, therefore, the argument advanced by respondent's counsel in this behalf is contrary to principles of law declared by Honourable Supreme Court.
22. ' We have heard parties' counsel and have also perused record of case carefully. There is no dispute concerning the contents of Murasala Exh.P.W./10-C wherein it has been incorporated by P.W. Muhammad Naseem that a TT Pistol was used in committing the crime by respondent. On the same day at the same time the S.H.O. Had also recovered one empty and one live cartridge of TT Pistol from the place of incident vide Exh.P./10-B. All these facts were mentioned in challan Exh.P.W./11-A. Under the Schedule attached with Suppression of Terrorist Activities Act, 1975 if an offence has been committed by the accused using automatic or semi-automatic weapon which would also include a T.T. Pistol trial of the case has to be held by the Special Judge under the Act of 1975.
23. Now the question is that what would be the stage where the Court seized with the matter would be competent to adjudicate whether crime has been committed cognizable by the Special Court or Criminal Court who has received the challan. In this behalf in the case of Allah Din and 18 others v.
24. The State and another 1994 SCM R 717 Honourable Supreme Court laid down that 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 the challan. To take advantage from the rule relevant para. From the judgment is reproduced herein below:-- "We are in agreement with view expressed in the reported judgment mentioned above, and further observe that 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 the challan. On the basis of that material the Court has to decide whether cognizance is to be taken or not. In the instant case incident is seen by six eyewitnesses and on our query whether eye-witnesses have supported the allegations in F.I.R. About use of Kalashnikov like weapon, learned counsel for the petitioners replied in the affirmative. In the circumstances material available with prosecution in this case is sufficient to justify invocation of jurisdiction by the Special Court. Other contentions raised by the learned counsel for the petitioners as mentioned above, can be properly appreciated only when evidence is recorded in the trial Court and witnesses are cross-examined. When that stage comes, the law will take its own course and it is open to the parties to take steps as are permitted by the law. For the present we are of the view that no flaw or legal infirmity is pointed out in the judgment of the High Court warranting interference. Leave is refused and the petition being devoid of merits, is hereby dismissed."
25. In the instant case essentially learned Additional Sessions Judge, Panjgoor did not determine whether jurisdiction vest in him or the case is triable by the Special Judge under Act of 1975 because there is no indication on the record that ever such exercise was undertaken by him in view of the material submitted along with challan before the Court to proceed with the matter.
26. ' Needless to observe that it is the duty of the Presiding Officer heading ale Criminal Court to examine carefully before taking cognizance of the offence the material placed before him to determine whether he had jurisdiction to try the offence and prima facie what would be the nature of offence allegedly committed by the accused, because in the instant case the learned trial Court without determining the question of jurisdiction decided to proceed with the matter and framed charge against the respondent of the offences which were mentioned in the forwarding note of the challan namely, section 324, Qisas and Diyat Ordinance and section 454, P.P.C.; whereas the recital of Fard-e-Biyan, recoveries, statements of the witnesses under section 161, Cr.P.C., the medical evidence as well as contents of challan also disclosed that the respondents besides section 324, P.P.C. Would also be liable for the offence under sections 337-A(ii) and 337-D as well as under section 455, P.P.C.
27. ' We suggested to learned counsel for parties that the trial of the case has not been conducted with jurisdiction nor judgment has been written by Additional Sessions Judge, Panjgoor in accordance with law, therefore, in all fairness it would be proper if the case is remanded to competent forum for adjudication. Learned counsel for appellant consented from remand; whereas learned counsel for respondents did not agree as according to him no prejudice has been caused because no case warranting conviction under section 324, P.P.C. Is made out, therefore, he insisted that this Court itself may decide the case on merits. But keeping in view the facts and circumstances discussed hereinabove we are not inclined to agree with the learned counsel for respondent; firstly jurisdiction of a Court to adjudicate upon the matter does not rest on the facts whether prejudice has been caused to any of the party or not and if any proceedings have been drawn by a Court without jurisdiction then notwithstanding the fact whether the ultimate. Order has caused any prejudice or not it is bound to be set aside.
28. ' Secondly with reference to the facts of instant case under the scheme of Suppression of Terrorist Activities Act, 1975 trial is to be held of the scheduled offences by a Special Court which will govern its proceedings under the said Act.
29. ' Thirdly under the Act of 1975 object of trial is to conclude speedily the matter which would serve a deterrent to like-minded persons involved in scheduled offences.
30. ' Fourthly jurisdiction is conferred or divested on the Courts by statutory provisions of law. It cannot be assumed either by consent of the parties or for the reasons that no prejudice has been caused to any of the party.
31. ' Lastly as far as the appellant himself is concerned he had no say in respect of exercising jurisdiction either by the Additional Sessions Judge or by the Special Judge Suppression of Terrorist Activities because he was a witness, therefore, there is no possibility of holding that he has submitted himself to the jurisdiction and now is estopped by his conduct to challenge the same.
32. Thus, for these reasons we are satisfied that no sooner question of jurisdiction particularly in a criminal matter is noted by the superior Courts it becomes its duty to rectify the order by setting aside it.
33. ' As we have observed hereinabove that prima facie record reveals that respondent is not only charged for the offences under section 324 read with 445, P.P.C. But also under sections 337-A(ii) and 337-D, P.P.C., therefore, if at this stage we decide to proceed with the matter and come to conclusion that respondent is involved in commission of crime then we are bound to make addition in the charge by incorporating those sections of P.P.C. In respect of which no charge was framed against him, therefore, it will necessarily cause injustice to respondent. Even otherwise the judgment as we have pointed out in above paras. Is not sustainable because both the reasons which prevailed upon the Presiding Officer in acquitting him are unfounded vis-a-vis with the observation of the Court that respondent is guilty for the offence under section 448, P.P.C. Ready we are sorry to observe that how the learned Judge came t9 the conclusion that except committing the offence of house-trespass respondent has not committed any other offence particularly when medical evidence was before him which indicates 3 bullet injuries.
34. ' Even if we go with the arguments and stand taken by respondent in his oath statement is - accepted that Abdullah fired with the pistol which hit to appellant, this version would not be acceptable because Abdullah being brother would not make 3 fires intentionally on his brother to commit murder, therefore, the plea without prejudice to the case of respondent is not convincing, as such learned trial Judge could have taken into consideration all these aspects and then would have passed a proper order strictly in accordance with law.
35. As we have held hereinabove that the respondent prima facie can be charged for the scheduled offence under Suppression of Terrorist Activities Act, 1975 because old section 307, P.P.C. Finds mention therein if it has been committed with reference to facts of the instant case with automatic or semiautomatic weapon. But after repeal of section 307, P.P.C. New section 324, P.P.C. Which is corresponding to earlier section has not been inserted so far in the Schedule, but this change would not take away jurisdiction of Suppression of Terrorist Activities Act Court because in substance both these sections are the same, therefore, old section 307, P.P.C. Would be deemed interchangeable with section 324, P.P.C. There could be another question which may crop up in the mind of the Presiding Officer of Special Court concerning addition of those offences which are not scheduled offences like section 337-A(ii) or section 337-D, therefore, to overcome this dilemma reference with benefit can be made to the case of "Sher Akram v. Sher Qadir 1994 SCM R 1092 wherein honourable Supreme Court discussed the implications of section 4(1) and (2), Suppression of Terrorist Activities (Special Courts) Act, 1975 and laid down following principle of law:- "Before adverting to the interpretation of the provisions of section 4 of the Act, it would be useful to reproduce hereunder the relevant portion thereof:-- '4. Jurisdiction of Special Court.--(1) Notwithstanding contained in the Code, the scheduled offences shall be triable exclusively by a Special Court... ...
(2) If, in the course of a trial before the Special Court, the Court is of opinion that any of the offences which the accused is alleged to have committed is not a scheduled offence, the Court shall record such opinion and try the accused only for such offence, if any, as is a scheduled offence.'
36. ' In our view subsection (2) creates an exception to subsection (1) of section 4 and provides that if the accused is charged with more than one offences, and one of the same is not a scheduled offence, it is necessary for the Court to record its opinion in respect thereto, and try the offence as if it was scheduled offence. The words as is scheduled offence' clearly signify that non-scheduled offence is to be tried as scheduled offence. It appears, that the Legislature visualised the situation, where the accused commits scheduled and non-scheduled offences in the same transaction, the trial of one offence before one forum may prejudice the trial in the other case before another forum."
37. ' Thus, following the above principle laid down by Honourable Supreme Court we are inclined to hold that subject to recording reasons the Special Judge would also be competent to try those offences which are non-scheduled offences, but prima facie have been committed in the same transaction.
38. ' For the foregoing reasons impugned judgment dated 31-3-1997 is set aside and case is remanded to Special Judge, Mekran at Turbat under Suppression of Terrorist Activities Act (Special Courts)
39. Act, 1975 for re-trial of the respondent in accordance with law.
40. ' Criminal Acquittal Appeal No,121 of 1997 and Criminal Revision No,42 of 1997 both stand disposed of.
41. THE END VOLUME L THE ALL PAKISTAN LEGAL DECISIONS AZAD J & IC HIGH COURT