' On 13-2-1996 one Abdul Ghafoor, complainant in case F.I.R. No,41 of 1996 under section 302, P.P.C., registered with Police Station, Ghazi Abad alleged the murder of his son Muhammad Akram by unknown persons. It appears that the present petitioner was hauled up after an alleged extra- judicial confession, dated 24-2-1996 made by one Nadeem son of Ali Ahmed before one Muhammad Hanif son of Imam Din. In that alleged extra-judicial confession the said " Nadeem stated that the petitioner Waqar Ahmed shot at and killed Akram deceased by using his 222 bore rifle.
2. On submission of challan before the Special Judge, under Suppression of Terrorist Activities, Court Act, 1975 Multan Division, Multan, the accused/petitioner made an application for sending the case back to the Sessions Judge concerned. The learned Special Judge, however, did not agree with the submissions that it was only the concerned Sessions Judge who had jurisdiction to try the petitioner. By way of his order, dated 5-4-1999 he rejected the prayer which was based upon the ground that the alleged recovered 222 bore rifle from Nadeem accused sent to the Forensic Science Laboratory, had been found to be in an unworkable condition. According to the learned Special Judge, the issue with regard to jurisdiction having earlier been dealt with by his predecessor before framing of charge on 21-7-1996 no case for acceptance of the petition could arise. Hence this Constitutional petition seeking a direction to respondent No,1 Judge Special Court, Suppression of Terrorist Activities, No,VI Multan for transfer of the case to the concerned Sessions Judge.
3. The parties have been heard.
4. Learned counsel for the petitioner claims that even if the alleged use of 222 bore rifle is accepted as correct still the case was not triable under the Suppression of Terrorists Activities Act, 1975.
According to him to this case the crime alleged against the petitioner could not by any stretch of imagination or reason be described as one of sabotage, subversion or terrorism to attract the jurisdiction of the Special Court constituted under section 3 of the said Act (XV of 1975). Further submits that the purpose contemplated in the preamble had to have a nexus with the facts and the offences charged in every case. In this regard he relies upon a judgment of the Hon'ble Supreme Court of Pakistan reported as re: Mehram Ali and others v. Federation of Pakistan and others (PLD 1998 SC 1445).
5. On the other hand, the learned counsel for the complainant relies upon re: Bilal Hussain v. The State (PLD 1991 Lahore 346) to contend that mere use of kind of weapon mentioned in the Schedule to the said Act was sufficient to attract the jurisdiction of the Special Court. Also ' refers to ratio settled in re: Azhar Hussain v. Government of Punjab and others (1992 PCr.LJ 2308) to argue that the recovery of kind of arms listed in the Schedule was not material and mere allegation of its use was sufficient to attract the jurisdiction of the Special Court constituted under the said Act.
5-A. However, we are not persuaded to agree to hold that mere allegation in an F.I.R. Of the effective or ineffective use of a weapon listed in the Schedule to the said Act (No,XV of 1975) was sufficient to attract the jurisdiction. Mere allegation in F.I.R., of the investigation of police qua use of a particular weapon will amount to give a choice of forum to a complainant or even the police. In the kind of culture we have, such an open letter likely to be misused invariably. Even, otherwise, it does not fit in the purpose as- well as the objective of the above law. This case was sent to the said Special Court on the ground of recovery made from the co-accused of a rifle 222 bore which was reported not to be in working condition.
6. Learned counsel for the petitioner is correct in saying that the offence to be tried by the Special Judge must have a nexus with the preamble of the aforesaid Act. It is that it must be an Act of sabotage, subversion or terrorism. The submissions made find support from the aforesaid judgment of the Humble Supreme Court of Pakistan in Mehram Ali (Supra). Their Lordships in that case inter alia held that the offence mentioned in the Schedule to the Anti-Terrorism Act, 1997 should have a nexus with the objects mentioned in sections 6, 7 and 8 of the Act. Further, in the view of their Lordships in case an offence included in the Schedule had no nexus with sections 6, 7 and 8 of the Act, the notification included such an offence to the Schedule to that extent will be ultra vires. The apex Court while protecting completed trials and judgments proceeded to hold that only the cases having nexus to the said provisions of the Act could be referred to the Special Court.
7. As noted earlier in the present case obviously it was the Police Department which impliedly determined the forum of trial by accepting in the investigation a claim qua use of 222 bore rifle which was found in an unworkable condition by the Forensic Science Laboratory. The complainant, father reported blind murder of his son to police by way of the F.I.R., in question. The reported offence of murder as such, obviously, had absolutely no nexus with either the preamble of Special Courts Act, 1975 nor the mischief which it sought to suppress. The offence charged being not an Act of sabotage, subversion or terorism the jurisdiction of the respondent/ Special Court was not at all attracted.
8. Accordingly, this petition is allowed. The trial pending against the petitioner before respondent No,1 Special Judge, Suppression of Terrorist Activities, Multan is transferred to the Court of Sessions Judge, Sahiwal. All the evidence recorded so far shall remain part of the record of the trial- and be taken into consideration by the learned Sessions Judge who will, however, be at liberty to recall any witness or to call any further evidence in his discretion or if so allowed at the request of any of the parties.