Impugned in this revision is order dated 17-1-2000 of the learned Special Judge for Suppression of Terrorists Activities, Karachi (South), where by Special Case No,34 of 1999 (The State v. Nasir Abdul Qadir Hussain and Niaz Hussain) was withdrawn from the file of Special Court for Suppression of Terrorists Activities and was transferred to the file of the learned District and Sessions Judge, Karachi (South).
2. The facts leading to the filing of this revision application are that on 14-10-1995 at about 11-45 p.m. Respondent Nasir Hussain made a telephone call in the house of complainant Mst.
Qamarunnisa that he was coming, which she disclosed to her husband. Thereafter, she went on upper portion of bungalow, whereas Muhammad Rafiq son of Amal Faqir, Muhammad Asif son of Muhammad Sarwar, Babar Raza son of Syed Muhammad Qasim and Noor Muhammad alias Nooro son of Sulaiman, her servants remained with her husband Ahmed Ali Soomro on the lower portion, when at about 11-45 p.m. The bell of bungalow rang and she peeped from the upper side and saw a yellow cab standing near the gate of bungalow 'and respondent Nasir Hussain and his driver Niaz Hussain were standing near the taxi. Her husband and servants opened the door and thereafter, respondent Nasir Hussain embraced her husband Ahmed Ali and took him to the road while talking. All of a sudden respondent Nasir Hussain started firing upon her husband with pistol or revolver and Niaz Hussain fired from his Kalashnikov, resultantly he fell down. She further disclosed in the F.I.R. That he was done to death for non-payment of money and such conversation was heard by her servants.
2-A. Mr. M.A. Kazi, the learned counsel for the applicant, states that initially the case was challaned before the Court of learned District and Sessions Judge as Sessions Case No,570 of 1995 and later on it was transferred to the file of the learned Special Judge, Suppression of Terrorists Activities, Karachi (South) as Special Case No,34 of 1999 vide order dated 24-5-1999. It was again on the application of Mr. Shaikh Mir Muhammad, the learned counsel appearing on behalf of the respondent, that the case was transferred from the file of learned Special Judge, Suppression of Terrorists Activities to the file of the learned District and Sessions Judge, Karachi as an original case number on 17-1-2000, which is impugned in this revision application.
3. We have heard Mr. M.A. Kazi on behalf of the applicant, Mr. Shaikh Mir Muhammad on behalf of respondent No,2, respondent No,3 in person, who is produced in custody and Mr. S. Jalil A. Hashmi, the learned Assistant Advocate-General on behalf of the State at length and have gone through the record and proceedings of the matter.
4. It is contended by the learned counsel for the applicant that the instant case falls within the jurisdiction of Suppression of Terrorists Activities Act, 1975 (hereinafter to be referred to as the Act) as an unlicensed Kalashnikov has been used in the commission of offence. According to him it is immaterial whether the Kalashnikov is recovered or not, but mere use of kalashnikov brings the case within the ambit of the Act. According to him during investigation nearly all witnesses have stated that respondent Niaz Hussain was armed with Kalashnikov and that he used the same at the time of incident by firing at deceased Ahmed Ali Soomro. The complainant Qamarunnisa in her statement before the trial Court too has categorically stated that respondent Niaz Hussain was armed with Kalashnikov and used the same in the commission of offence. In support of his contentions he relied upon the case-law reported in 1994 SCM R 717 and 1992 PCr.LJ 2308.
5. On the other side, M/s. Shaikh Mir Muhammad and Syed Jalil A. Hashmi controverted the above submissions of the learned counsel for the applicant and stated that this case would not fall within the ambit of the Act, but would be triable by an ordinary Court having civil jurisdiction. According to ,them mere use of Kalashnikov would not be sufficient to attract the jurisdiction of the Special Court. In support of contentions they relied upon the case-law reported in 1999 PCr.LJ 476.
6. The F.I.R. On the face of it, shows that respondent Niaz Hussain was armed with Kalashnikov and fired at the deceased which was also supported by witnesses during investigation in their respective 161, Cr.P.C. Statements. Irrespective of this complainant Qamarunnisa in her deposition before the trial Court has stated that respondent Niaz Hussain started firing from his Kalashnikov.
The Hon'ble Supreme Court in the case of Allandin and 18 others v. The State and another, reported in 1994 SCM R 717, has observed that question of jurisdiction of Civil Court can be determined on the basis of F.I.R. And other material produced by prosecution at the time of presentation of the challan. The Court on the basis of such material has to decide whether cognizance is to be taken or not. The Hon'ble Supreme Court has further held that the eye-witnesses have fully supported the allegations contained in the F.I.R. For the use of kalashnikov like weapon, which was found sufficient to invoke the jurisdiction of Special Court. In the case of Azhar Hussain v. Government of Punjab and others, reported in 1992 PCr.LJ 2308, a Full Bench of the Lahore High Court has held that jurisdiction of the Court is to be determined on the basis of allegations mentioned in the F.I.R. And case set up by the prosecution, truthfulness or otherwise of allegations can be determined at the time of trial, after recording evidence. In this case Kalaslnikov was not recovered even then it was held that the case would be tried by the Special Court. On the other side, the case-law referred by Mr. Shaikh Mir Muhammad is on different facts and circumstances as in the referred case Kalashnikov, recovered from the accused was his official Kalashnikov and the same did not fall within mischief of sections 8, 9 and 10 of Arms Ordinance, and thus, section 13-D of Arms Ordinance was not attracted in the case. In the instant case there remains more than six witnesses to be examined and the fate of case would be decided on the conclusion of the trial.
7. For the reasons recorded above, we are of the considered opinion that this case falls within the ambit of the Act and would be triable by Special Court for Suppression of Terrorists Activities.
Accordingly, the case is withdrawn from the file of the learned District and Sessions Judge, Karachi (South) and is transferred to the file of Special Judge, suppression of Terrorists Activities, Karachi (South).
8. Mr. Shaikh Mir Muhammad states that he has moved an application for bifurcation of case. The trial Court is directed to dispose of the said application as expeditiously as possible in accordance with law.