1. ' This revision has been filed against the order of Additional Sessic ns Judge Kotri, dated 26-6-1999 wherein he has mentioned as under:- "The name of the applicant/accused is mentioned is the F.I.R. The F.I.R. Shows that kalashnikov is involved in the offence of Qatle Amd alley ;d against the applicant/accused alongwith co-accused Jaro and Hussain Bux hence the offence alleged against the applicant comes under rule clause (II- A) of clause-A read with clause-E of the Schedule of S.T.A. Act, 1975 which is beyond the jurisdiction of this Court. Therefore, this application is not maintainable. The applicant's advocate has cited.
2. 1996 PCr.LJ 1818 Karachi in support of his contention wherein it was held that the Honourable High Court is fully competent to exercise its power under section 561-A, Cr.P.C. As well as under section 498, Cr.P.C. Where a person is not accused of schedule offence. In the case discussed in the above rulings, the Honourable High Court has granted bail under their inherent power hence this ruling is not applicable to this case at this stage."
3. ' Against this order present revision has been filed. Ott 3-8-1999 this Court had ordered Mr. Hidayatullah Abbasi and Mr. Madad Ali Shah, Advocate to act as Amicus Curaie to assist the Court.
4. ' Both the learned counsel have made submissions as Amicus Curaie. The learned A.A.-G. And Advocate for the applicant has been heard. Amicus Curaie are of the opinion that the decision reported in 1994 SCMR 717 is available on the point of deciding the quesation of jurisdiction.
5. According to them mere mentioning of kalashnikov will not decide the question of jurisdiction but when it has been used only in that case. S.T.A. Has the jurisdiction. They have referred to paragraph 5 of the order of Supreme Court in above mentioned case which is as under:- "For the purpose of deciding the question of jurisdiction, the Court has to rely upon the material which is in the possession of prosecution at the time of presentation of case. Both the Courts below have acted upon the proposition that jurisdiction is to be determined on allegations made in the F.I.R. And the case set up by the prosecution. In support reliance is palced on the case of Azhar Hussain and others v. The Government of Punjab and others (1992 PCr.LJ 2308), which is full Court judgment of 3 Judges of Lahore High Court. In the reported case the point involved was identical inasmuch as it was alleged in the F.I.R. That kalashnikov was used but during investigation it was not recovered and on that ground alongwith allegation of mala fides trial by the special Court was resisted. Contention was repelled and rightly so, on the ground that non-recovery of kalashnikov could not justify conclusion that the same was not at all used the mala fide were not proved."
6. ' In the present case in the F.I.R. The allegation is that the applicant Jan Muhammad was present with kalashnikov. There is no allegation that the kalashnikov was used not a single fire was made from kalashinkov. The only allegation is that he had kalashnikov. Therefore, the learned Additional Sessions Judge was of the view that the case is of S.T.A. And he has no jurisdiction. This view of Additional Sessions Judge has been challenged on the ground that kalashnikov was not used and, therefore, the S.T.A. Has no jurisdiction. Different authorities have been cited that is 1999 PCr.LJ 476, 1994 SCMR 717, 1992 PCr.LJ 2308; PLD 1997 Karachi 464.
7. ' The learned A.A.-G. Submits that the order has already been passed and the case is with S.T.A. At present and, therefore, it could not be heard by a single Judge. He has referred to 1992 PCr.LJ 1219, 1978 PCr.LJ 864; 1998 PCr.LJ 773; 1994 PCr.LJ 717. The relevant page is 719. The learned A.A.-G. Submits that the petitioner (sic) leave in the cited case was (sic) request and petition was dismissed. This is correct but the principle has been laid down with the emphasis on the word use of the weapon. In this case the kalashnikov was with the applicant but there is no allegation of firing, therefore, it cannot be raid that it was used. The order of Additional Sessions Judge is to be set aside because there is no findings that kalashnikov was used but in the case cited their lordships have mentioned that 6 eye-witnesses supported allegation in the F.I.R. About that use of kalashnikov. In this case there is no allegation that it was used. In view of the decision of Supreme Court, I set aside the order of Additional Sessions Judge, dated 26-6-1999 and direct him to decide the bail application of applicant. As the order of the Additional Sessions Judge has been set aside he will recall the case from the Court of S.T.A. And decide the bail application. However, there is sufficient evidence to show that kalashnikov was used then the trial Court may send the Court to S.T.A. Court.