1. ' ANWAR ZAHEER JAMALI, J.--- Through this criminal revision application under sections 435 and 439, Cr.P.C. Applicant Jahangir son of Ghous Bux has challenged the order, dated 21-5-1998 passed by Sessions Judge/Special Judge (S.T.A.), Jacobabad, whereby he has directed to return the challah in Crime No,92 of 1995 of Police Station "A" Section, Kandhkot, for an offence under sections 302, 324 and 34, P.P.C., to the concerned police for submitting the same before the Court having jurisdiction in the matter.
2. ' The brief facts relevant for the purpose of this case are that on 4-7-1995 at 9-40 a.m., at the Hair Cutting Saloon of one Mutes situated in Dhakan Bazaar, Kandhkot, Muhammad Yousif, Abdul Hakeem, Ghullam Murtaza and Saifuddin, the alleged accused in Crime No,92 of 1995, had murdered Aznar Aii son of Rasool Bux Channa and injured Ghulam Farid and Huda Bux. Later on injured Ghullam Farid also died at the Hospital. In the commission of this offence allegedly two Kalashnikovs were used and the police during investigation recovered one Kalashnikov from accused Muhammad Yusuf, who is a police constable. The police after necessary investigation submitted such challah before the Court of Special Judge for (S.T.A.) District Jacobabad.
3. ' During the proceedings before the Trial Court charge was framed against the accused persons and trial was commenced. The prosecution examined all material witnesses and thereafter, closed its side on 17-2-1998. It is, thereafter, that the Trial Court on 21-5-1998 passed the impugned order for return of challah to the concerned police for presentation before the normal Court having jurisdiction. It is pertinent to observe that, for the reasons recorded by the Trial Court justifying its order, dated 21-5-1998, the learned counsel for the applicant had also conceded there.
4. ' We have heard Mr. Habibullah Sheikh learned counsel for the applicant, Mr. Sher Muhammad Shar learned Assistant Advocate-General, Sindh for State, Messrs.' Muhammad Daud Baluch and Abdul Fattah Malik learned counsel for the respondents Nos.2 to 5.
5. ' Learned counsel for the applicant vehemently argued that from the contents of the F.I.R., as well as the evidence adduced from the prosecution side before the Trial Court, it was clearly established that two accused persons viz. Muhammad Yousif and Ghullam Murtaza used Kalashnikovs during the commission of this crime. However, during the investigation, the police could succeed to recover only one out of these two Kalashnikovs used in the crime, which was recovered from accused Muhammad Yousif, a police constable, as his official Kalashnikov. Learned counsel further argued that mere non-recovery of other Kalashnikov, in spite of overwhelming other evidence to establish this fact, cannot take away the jurisdiction of the Special Court (S.T.A.) for trying the case.
6. In support of his contention the learned counsel placed his reliance on the case-law reported as Azhar Hussain and others v. Government of Punjab and others 1992 PCr.LJ 2308 and Allah Din and 18 others v. The state 1994 SCM R 717. The learned counsel while concluding his arguments submitted that in view of the principle laid down by the Honorable Supreme Court of Pakistan, in the later case, the accused were rightly challenged before the Special Court (S.T.A.) and impugned order, dated 21-5-1998 returning the challah to the police, is illegal and liable to be set aside with direction that the Special Court (S.T.A.) shall complete the case and pass its final judgment in the matter.
7. ' Mr. Sher Muhammad Shar learned Assistant Advocate-General representing the State in this case did not support the impugned order of the Trial Court and submitted that there was enough evidence before the Trial Court about the use of two Kalashnikovs in the commission of crime by the accused party, and therefore, the case was exclusively triable by Special Court S.T.A. And mere non-application of section 13-D, Arms Ordinance, 1965 in the challah will not take away the jurisdiction of the S.T.A. Court. Learned Assistant Advocate-General further submitted that non- recovery of the Kalashnikov from the other accused Ghullam Murtaza will not be fatal for the purpose of determining the question of jurisdiction of the Special Court.
8. ' Mr. Muhammad Daud Baluch learned counsel representing private respondents, while supporting the impugned order, dated 21-5-1998 has relied on the case-law reported as Saeed Ahmad v. The State and 3 others 1998 PCr.LJ 1508.
9. ' Mr. Abdul Fattah Malik learned counsel representing private respondents while rebutting the arguments of the applicant's side has placed his reliance on the case of Muhammad Iqbal and another v. The State 1992 M LD 287 and with reference to the factual aspect of the matter, argued that every offence allegedly involving use of Kalashnikov will not be a schedule offence under section 2(b) of the Suppression of Terrorist Activities Act, 1975, the learned counsel also referred to the schedule as prescribed in the said Act and submitted that admittedly in this case the accused, have not been charged for an offence under section 13-D of the Arms Ordinance and in such circumstances when the offence falls only under section 302/324/34, P.P.C. The same will not be covered by any clause of the schedule, and thus, the same would not be tribal by the Special Court. Learned counsel further argued that admittedly the only Kalashnikov recovered, is an official Kalashnikov of accused Muhammad Yousif, who is a police constable and neither there is any recovery of second Kalashnikov nor even section 13-D, Arms Ordinance has been applied in the present case and, therefore, as a general principle of applicability and interpretation of criminal law, it cannot be presumed that the other alleged Kalashnikov used in the commission of crime was unlicensed, and for this purpose law cannot be stretched against accused. Lastly the learned counsel submitted that it has been clearly laid down in case-law as referred by him as well as by Mr. Muhammad Daud Baluch learned counsel for the respondents that the question of jurisdiction could be examined and decided by the Court at any stage of the proceedings, on the basis of material placed before it and the learned Trial Court has fully applied its mind and rightly passed the impugned order, which is in accordance with law and needs no interference.
10. ' We have carefully considered the above contentions advanced before us and have also perused the case-law.
11. ' For the purpose of examining the question of jurisdiction, which is the only point involved in this criminal revision application, it will be proper to reproduce herein below the definition of a "schedule offence" as given under section 2(b) of the Suppression of Terrorist Activities Act, 1975 and also the relevant schedule given at the end of the said Act:-- "2. Definitions.--- In this Act, unless there is anything repugnant in the subject or context,--
(a) ............ ...
(b) 'Scheduled offence' mean:, an offence specified in the Schedule; and
(c) ........................................
12. ' "The Schedule (See section 2(b)
(a) Any offence punishable under any of the following sections of the Pakistan Penal Code, 1860 (XLV of 18601,, namely:-
(i) Sections 121, 121-A, 122, 123, 123-A; 124-A, 365-A, 400, 402-A, 402-B, 402-C and 431;
(i) section 216, if committed in relation to an offender who is accused of having committed any of the offences specified in this Schedule; (ii-a) section 302 or section 307, if committed in the course of the same transaction in which an , offence---specified in this paragraph or paragraphs (b) and (c) is committed, or in addition to, or in combination with, such offence;
(iii) ................
(iv) ............
(b) Any offence punishable under the Explosive Substances Act, 1908 (XI of 1908);
(c) Any offence punishable under the Arms Act, 1878 (XI of 1878), or any offence punishable under any of the following sections for the West Pakistan Arms Ordinance, 1965 (West ' Pakistan Ordinance No,XX of 1965), namely sections 8, 9 and 10, if committed in respect of cannon, grenade, bomb or rocket; or a light or heavy automatic or semiautomatic weapon such as Kalashnikov, a G- II/rifle or any other type of assault rifle.
13. (cc)..
14. (d)..
15. (e)
16. (1).
(g) .
(h) ..
17. From a plain reading of the above definition of "schedule offence" together with the schedule, it is clear that an offence under Paragraph (a)(ii)(a) gives jurisdiction to .Special Court under this Act only when such an offence committed under section 302 or 307 is committed in a manner in which an offence specified in Paragraphs (b) and (c) of schedule is also committed and is combined with such offence. Conversely to this, in the instant case, the accused have been charged only for an offence under sections 302, 324 and 34, P.P.C. And there is no other combined charge of offence as provided under the schedule, thus, it is evident that the present case is not covered within the ambit of the "schedule offence" defined under section 2(b).Of the S.T.A. Act, 1975.
18. ' The case-law referred by the learned counsel for the applicant, is quite distinguishable to the facts and circumstances of the present case.
19. ' In the case of Allah Din and 18 others v. The State 1994 SCM R 717, the Honorable Supreme Court while agreeing with the view taken in the case of Azhar Hussain v. Government of Punjab and others 1992 PCr.LJ 2308 observed that for the purpose of determining the question of jurisdiction of Special Court under section 4 of the Act, the Court has to examine the material available with the prosecution at the time of presentation of challah, and non-recovery of Kalashnikov could not justify conclusion that the same was not at all used. The Honorable Court further observed that other contentions can be properly appreciated in the Trial Court at its proper stage and for that purpose law will take its own course.
20. ' The question of jurisdiction of S.T.A. Court was also examined in the case of Muhammad Iqbal and another v. The State 1992 M LD 287 and it was observed that mere use of "automatic rifles" in the commission of offence under section 302/307/34, P.P.C. Will not make it a ,"schedule offence" unless it is shown that the same was unlicensed, thereby bringing the case within the mischief of sections 8, 9 and 10 of Arms Ordinance, 1965.
21. ' In the case of Saeed Ahmed v. The State and 3 others 1998 PCr.LJ 1508 the question of jurisdiction of S.T.A. Court has been again examined by a Single Judge of this Court with following observations:-- "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 challah. 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.'
22. ' Whenever a trial Court is called upon to determine its jurisdiction it will have to scrutinize the entire, available and obtaining record, statements, testimonies and material for the purposes of determining the jurisdiction." (underlining is mine).
23. In view of the above legal position and facts of this case, the contentions raised by the learned counsel for the applicant have no force. It is always open for a Court to examine the question of its jurisdiction in respect of a case pending before it, and such decision is to be taken not only with reference to the relevant provisions of law but also on the basis vi material available before the Court for that purpose and such exercise could be undertaken by a Court at any stage of the proceedings. In the instant case admittedly the only Kalashnikov recovered from the accused Muhammad Yousif was his official Kalashnikov not falling within the mischief of sections 8, 9 and 10 of Arms Ordinance, 1965 and, thus, section 13-D of the Arms Ordinance was not attracted/applied to the present case. Further about the alleged second unrecovered Kalashnikov no presumption could be drawn that the same was an unlicensed one, in other words with reference to the alleged second Kalashnikov also section 13-D, Arms Ordinance could only be applied when the same was recovered and found to be unlicensed. As a necessary corollary due to non-application of section 13-D of the Arms Ordinance, 1965, the case in which the accused have been charged remains an offence only under sections 302, 324 and 34, P.P.C. And goes out of the purview of a "schedule offence" as defined under section 2(b) of the Suppression of Terrorist Activities Act, 1975. As a result, the impugned order passed by the Trial Court suffers from no legal infirmity and is maintained.
24. ' This criminal revision application being without substance, is dismissed.