' The applicants/accused have sought following relief through this Criminal Revision Application:- "It is, therefore, prayed that this Hon'ble Court may be pleased to set aside the impugned order, dated 3-3-1999; passed by learned Additional Sessions Judge, Malir, in Sessions Case No, 73 of 1998, with direction to trial Court to decide the matter on merits and may further be pleased to direct the learned trial Court to decide the application, dated 23-7-1998 (Annexure B) first in the interest of justice.
' Any other relief which this Honourable Court may deem fit and necessary in favour of the applicant/accused, in the interest of justice."
2. The brief facts of the case are that F.I.R., vide Crime No, 48 of 1998, was registered against the applicants/accused under sections 147, 148, 149, 427, 380 and 337-A(i), read with section 34, P.P.C.
At Police Station Ibrahim Hyderi, Karachi. After usual investigation the case was sent up and in final charge-sheet section 365, P.P.C. Was added.
3. The learned Judicial Magistrate on receipt of the charge-sheet sent the case to the Sessions Judge, Malir, as contemplated under section 190, Cr.P.C.
4. On 23-7-1998 an application was submitted before the Sessions Court wherein it was prayed that case may be sent back to Judicial Magistrate, for trial as in F.I.R. And interim charge-sheet section 365, P.P.C. Was not applied. So far no order has been passed on the said application.
5. The learned Sessions Judge while exercising powers on Administrative Side transferred/made over the case of applicants/accused to Additional Sessions Judge, Malir, Karachi, for disposal according to law.
6. The applicant/accused No, 1 was granted bail by the learned Sessions Judge, Malir, Karachi. The applicants/accused Nos.2, 3, 5 and 6 were granted bail by learned Additional Sessions Judge, Malir, Karachi.
7. On 28-1-1999 a notice was issued by the learned trial Judge to the applicants/accused. The contents of the same are reproduced hereinunder in extenso:-- ' In the Court of Additional District and Sessions Judge, Malir, Sindh Before: Mr. Shah Nawaz Tariq.
Sessions Case No,73 of 1998.
' The State v. Asif alias Guddo and others---Accused.
' To, ' The Accused 1. Asif,
2. Naeem,
3. Ayoub,
4. Zubair,
5. Shafique,
6. Zamir Ahmed, Ansari, 7, Anwar, 8.
Zahid.
' SUB: Notice for want of jurisdiction.
' Whereas the abovementioned case has been transferred to this Court from the Court of District and Sessions Judge, Malir, for disposal in accordance with law. During the course of arguments it has been pointed out that weapon used in the alleged offence is K.K. For which this Court has no jurisdiction to adjudicate the case. You are, therefore, hereby given notice to argue on the point of jurisdiction on 3-2-1999 without fail.
(Sd.)
(Shah Nawaz Tariq), Additional Sessions Judge, Malir, Sindh."
8. The learned trial Judge after hearing the parties passed the impugned order dated 3-3-1999 and recalled order of grant of bail to applicants/accused Nos.2 to 6 and it was further ordered that a reference be made for transfer of case from the file of learned Additional Sessions Judge to the Court having jurisdiction.
9. I have heard Mr. Mchmood Habibullah, learned counsel for the applicants/accused and Mr. Arshad Lodhi, Assistant Advocate-General, Sindh on behalf of the State. Latter supported the impugned order.
10. The contentions of the learned counsel for the applicant/accused that impugned order is illegal; that the trial Court had no power to determine the point of jurisdiction, according to the nature of offence; that he had no authority to refer the case to learned Sessions Judge, the transferee Court; that the learned Additional Sessions Judge was not competent to cancel the bail and remand the applicant/accused to judicial custody; that the offence with which the applicants/accused are charged does not come within the purview of the provisions of Suppression of Terrorist Activities (Special Courts) Act, 1975, as those are not scheduled offences; that the applicants/accused were condemned unheard and, thus, the impugned order is liable to be set aside, are misconceived and devoid of force.
11. The perusal of F.I.R. Shows that applicants/accused along with their companions, being armed with kalashnikovs, repeater gun and pistols, made firing upon the complainant party. They put one Azim in taxi and took him away along with motor-cycle, belonging to the brother of the complainant. Due to indiscriminate firing made by the applicants/accused party damage was caused to the vehicles parked at the scene of offence. The complainant had also received injuries and he was brought at JPMC, Karachi, where he was treated.
12. It will be pertinent to refer to the Schedule appended to the Suppression of Terrorist Activities (Special Courts) Act, 1975, in order to meet with the contention of the learned counsel for the applicants/ accused. For the sake of convenience clause (c) to the Schedule is reproduced herein below:- "(c) any offence punishable under the Arms Act, 1878 (XI of 1878), or any offence punishable under any of the following sections of the West Pakistan Arms Ordinance, 1965 (West Pakistan Ordinance No,XX of 1965), namely. Sections 8, 9 and 10, if committed in respect of a cannon, grenade, bomb or rocket; or a light or heavy automatic or semiautomatic weapon such as kalashnikov; a G-III Rifle (including semi-automatic or automatic pistols and those commonly known as T.T. Pistols) or any other type of assault rifle."
13. The bare perusal of above provision shows that the jurisdiction for the trial of present case vests with the Special Court created under Suppression of Terrorist Activities (Special Courts) Act, 1975, because the applicants/accused and their companions were armed with kalashnikovs and they used the same in the commission of offence. Thus, it negatives the contention of the learned counsel for the applicants/accused. In this context I am also fortified by the decision in the case of Allauddin and others v. The State (1994 SCM R 717).
14. Now, I will deal with the point of jurisdiction. It is well-settled that the question of jurisdiction must be determined and decided before the trial stage. It cannot he decided at the time of its final adjudication. Before framing the charge, the Court has to look into the material available with the prosecution and placed on the record. After perusal of it, if Court finds that it has no jurisdiction in the matter the Court must make a reference along with R&F and Referee Court is competent to make over the case to the Court having jurisdiction in the matter. Any trial without jurisdiction is bad in law and defect of jurisdiction is not curable under section 537, Cr.P.C. Thus, the Impugned order in respect of reference for the transfer of the case to the Court having jurisdiction in the matter does not suffer from any legal or factual infirmity and it was within the domain and power of the said Court to determine about the jurisdiction before framing the charge and proceeding with the case and it was competent to send it to the Court concerned for making a reference in that context.
15. So far the contention that learned Additional Sessions Judge was not competent to cancel the bail granted by him is devoid of force. In this context reference can be made to section 497(5), Cr.P.C., which clearly permits such a course to be adopted by the Court which earlier granted bail.
16. The above provision postulates that it is the city of the Court that after looking towards the peculiar facts and circumstances of a particular case, if it comes to conclusion that bail was granted illegally, improperly and without jurisdiction it can cancel or recall the bail order. There is no legal impediment or embargo in the way of Court. For the cancellation of bail even no application is required. The Court, which has granted bail to the accused, is competent to cancel the same and it does amount to a review of the earlier order as such it is not illegal. In this respect_ I am fortified by the decision of Hon'ble Supreme Court in the case of Muhammad Ismail v.
Hidayatullah and 2 others 1981 SCM R 35.
17. In the case in hand the bail was granted without jurisdiction and when Court found that the order granting bail was passed by him without jurisdiction, he rightly committed the applicants forthwith to custody.
18. In the case of AIR 1941 Sindh 83, it was held that when the Presiding Officer of a Court finds that the order granting bail passed by him was without jurisdiction, he must cancel the bail and must commit the accused forthwith to custody. Even he should not allow him to remain on interim bail as there is no room for an interim order in such matters.
19. The contention that the impugned order was passed without hearing the applicants or their counsel is not borne out from the record. The impugned order shows that counsel for the applicants was heard by the Court and applicants themselves have in paragraph 7 of the application stated that the impugned order was passed after hearing them. The very two opening lines of the ground No,7 are reproduced herein below:--- "That the learned trial Court after hearing passed the impugned order dated 3-3-1999."
20. Thus, the plea of 'audi aletram partem' raised by the applicants is untenable.
21. The upshot of the above discussion is that the impugned order is just and proper. Consequently, the present revision application merits no consideration and it is accordingly dismissed along with listed application.
Revision .