1. ' The applicant is a complainant in this case and is aggrieved by the order, dated 1-10-1997 passed by the learned 1st Additional Sessions Judge, Karachi West (Mrs. Shamshad Kazi) in Sessions Case No,121 of 1997 (State v. Qadeem Khan and another) whereby application under section 4 of the Suppression of Terrorist Activities (Special Courts) Act, 1975 (hereinafter referred to as the Act XV of 1975) submitted by the plicant/complainant' for transfer of the instant case to the Special Court was rejected.
2. ' The brief background of the matter is as follows: ' As per F.I.R. On 28-11-1996 at 20-30 hours inside the House No,B-208, MPR Colony, Orangi Town, Karachi-West the respondents Nos.2 to 4 allegedly committed the murder of Haji Ahmed who was the brother of the applicant. In the last line of the First Information Report, it is stated that due to some previous enmity the accused committed the murder of Haji Ahmed with TT Pistols although he has not disclosed the crime weapon as TT Pistols but only pistols as reflected in the main body of the F.I.R. The matter was accordingly reported to the police on 29-12-1996 and after usual investigation the case was challaned in the Sessions Court. Now it is pending on the file of the learned 1st Additional Sessions Judge, Karachi-West. So far four witnesses have been examined.
3. The applicant/complainant submitted an application on 22-9-1996 wherein. It was stated that the learned trial Court had no jurisdiction in view of the allegations made in the F.I.R. Challan and the 161, Cr.P.C. Statements of the P.Ws. To the effect that the deceased was murdered with TT Pistols irrespective of the fact that no TT Pistol was recovered from the culprits. Therefore, being a scheduled offence the challan be returned for submission before the Special Court established under Act XV of 1975. Notice of this revision application was served on the State and thereafter, the respondents Nos.2 to 4 were also summoned from jail.
4. ' I heard the learned counsel for the parties and have perused the record.
5. ' Learned counsel for the applicant mainly urged that since the alleged offence was committed with TT Pistols therefore, the learned trial Court has no jurisdiction to proceed with the case. He further submitted that the question of jurisdiction is to be determined by each and every Court, Tribunal before proceeding with the case. Lastly he submitted that the learned trial Court appreciated the evidence while passing the impugned order but that should not have been done for want of jurisdiction as only the competent trial Court can do so. Learned counsel for the State while opposing the revision submitted that already four witnesses have been examined and no recovery was made, therefore, the learned trial Court has jurisdiction to proceed with the matter.
6. ' Learned counsel for the respondents Nos.2 to 4 also advanced similar arguments and further submitted that the Act XV of 1975 has already lapsed. This argument of the learned counsel for the respondents Nos.2 to 4 is devoid of force in view of the law laid down by the Honourable Supreme Court in Soona v. The State PLD 1970 SC 264. In this judgment it was held by their Lordships that:-- "Section 6 of the General Clauses Act of 1897 which applies to Central Acts or Regulations is also in the same term and language. One of the effects of the repeal is that it shall not affect any investigation legal proceeding or remedy in respect of any such right privilege, obligation, liability, penalty, forfeiture or punishment, as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed. It is, therefore, quite clear that all the investigations or proceedings which are contemplated are to continue as if the Repealing Act or Regulation had not been passed. On this language it is quite clear that the trial of criminal cases has to be in accordance with rules of procedure in force at the commencement of the trial and the same procedure has 'to be followed."
7. ' In the present case the trial had already commenced after investigation and submissions of challan in view whereof the proceedings are protected under section 6 of the General Clauses Act.
8. ' I would now address myself to the contention advanced by the learned counsel for the applicant that the Sessions Court has no jurisdiction in the matter which has to be transferred or sent to the Special Court. After a careful scrutiny of the record and the contentions of the, learned counsel for the applicant I am of the view that the contention has no merit. In Allah Din v. The State 1994 SCM R 717 the Supreme Court took the view that the question of jurisdiction of the Special Court can be determined on the basis of the F.I.R. And the other material produced by the prosecution at the time of presentation of the challan. This was, of course, a pointer for the purpose of determining the jurisdiction of the trial Court initially which can subsequently determine its own jurisdiction upon consideration of further evidence, record or other material placed on record. In other words, once the jurisdiction is initially determined by the trial Court, subsequent orders for transfer of the case to the Court of competent jurisdiction can obviously be passed where material and testimonies are subsequently brought on record to justify the same. On this I am fortified by the observation of the Honourable Supreme Court in Allah Din which are as under:-- "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."
9. ' In Allah Din it was alleged that a klashnikov had been used by the accused, though recovery of the weapon had not been made but six eye-witnesses supported the allegations in relation to the use of the klashnikov. The Honourable Supreme Court thus came to the conclusion that the statements of the eye-witnesses, the allegations in the F.I.R. And the documents produced by the prosecution at the time of the presentation of the challan confirmed, prima facie, that klashnikov has been used and as such the Special Court had jurisdiction. In striking contrast in the present case though there had been an allegation in the F.I.R. With regard to the use of TT Pistols but none had been recovered and no surrounding circumstance, including 161, Cr.P.C. Statements or the testimonies of the four prosecution witnesses so far recorded supported the contention regarding to use of the TT Pistols. Whenever a trial Court is called upon to determine its jurisdiction it will hive to scrutinize the entire, available and obtaining record, statements, testimonies and material for the purposes of determining the jurisdiction. In the present case, the material available at present with the learned trial Judge does not prima facie support the case for the use of TT Pistols. No doubt such allegation exists in the F.I.R. But that by itself would not be enough where firstly, no recoveries were made and secondly, the forthcoming material did not support such fact. Once again it is needless to emphasise that at a subsequent stage if any further material is brought on record, the concerned parties or the trial Judge suo motu can take appropriate action as is required by law for the purpose of transfer of the case to the Court of competent jurisdiction.
10. ' The upshot of the above discussion is that the revision is dismissed being without any merit and the stay order granted earlier injuncting ' the proceedings is hereby vacated.