' ASIF SAEED KHAN KHOSA, J.--- The necessary facts giving rise to the present Constitutional petition are that Muhammad Amin petitioner is one of the accused persons in case F.I.R. No,258 registered at Police Station Kameer, District Sahiwal on 4-8-1998 for offences under sections 302/324/148/149, P.P.C. According to the allegations levelled in the said F.I.R. One of the accused persons namely Iqbal alias Bahawal Sher was armed with a .222 rifle which had actually been used by him during the incident for causing injuries to the deceased and the injured witnesses. However, during the investigation of the said criminal case the local police opined that no .222 rifle had been used during the incident in question and, therefore, no such rifle was recovered from the accused party.
After completion of investigation the local police submitted a challan of this case before a learned Additional Sessions Judge, Sahiwal who, vide order, dated 22-12-1998, opined that the Court of Session had the requisite jurisdiction to try the said case and, therefore, the police had rightly submitted the challan of that case before him. Zakoor Ahmed complainant, respondent No,2 herein, however, submitted an application before the Judge, Special Court No,VI, Multan constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975 praying therein that the challan of the said criminal case should be summoned to the said Court for its trial before the same as the case in question involved commission of a scheduled offence. That application was allowed by the learned Judge, Special Court, Multan vide order, dated 11-3-1999. That order has been assailed by the petitioner before this Court through the present Constitutional petition.
2. In support of this petition it has been argued by the learned counsel for the petitioner that although the F.I.R. In this case contained an allegation regarding use of a .222 rifle during the incident in question yet during the investigation the police had opined that no such rifle had actually been used and for that reason no such rifle was recovered from the accused party during the investigation. Thus, according to the learned counsel for the petitioner, the case in hand did not attract the jurisdiction of a Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975. It has also been argued by the learned counsel for the petitioner that once the learned Additional Sessions Judge, Sahiwal had taken cognizance of the case and had decided that the police had rightly submitted the challan before his Court it was then not open to the learned Special Court to assume jurisdiction in the case for holding a trial. In support of his arguments the learned counsel for the petitioner has placed reliance upon the case of Muhammad Yousaf v. Special Judge and others Writ Petition No,1060 of 2000 decided by a learned Division Bench of this Court on 7-3-2000. As against that the learned counsel for respondent No,2 as well as the learned counsel for the State have maintained that the case in question was triable exclusively by a Special Court and the learned Additional Sessions Judge, Sahiwal was not justified in assuming jurisdiction in the matter.
3. After hearing the learned counsel for the parties and going through the record we have no hesitation in concluding that this writ petition must fail.. In the present case the F.I.R. Specifically contains an allegation regarding use of a 222 rifle during the incident in question and the eyewitnesses mentioned in the F.I.R. Have so far stood by their statements made before the police in that regard. Any failure on the part of the police to recover such a rifle or any opinion of the Investigating Officer regarding use or otherwise of such a rifle during the incident in question do not take away the jurisdiction of the Special Court to try such a case. A decision about jurisdiction of a Court to try a criminal case cannot be abdicated to the whims or conclusion of an Investigating Officer. In the case of Allah Din and 18 others v. The State and another 1994 SCM R 717 the Honourable Supreme Court of Pakistan had upheld a judgment of this Court upholding trial of the said case by a Special Court despite the fact that a kalashnikov allegedly used in the incident in that case had never been recovered during the investigation. In the case of Azhar Hussain and others v. Government of Punjab and others 1992 PCr.LJ 2308 a Full Bench of this Court had also arrived at the same conclusion. The reason advanced in both those judgments for upholding the jurisdiction of a Special Court to try those cases was that the F.I.Rs, in those cases specifically contained an allegation regarding use of an automatic/semiautomatic fire-arm weapon and the eye-witnesses mentioned in those F.I.Rs, had stuck to their version regarding use of such a weapon in the incident. Thus, failure of the police to recover the alleged weapons of offence or an opinion of the police that the alleged weapons had not in fact been used in those incidents had not swayed the Honourable Supreme Court and the Honourable Full Bench of this Court in the said cases to divest the Special Court of its jurisdiction to try those cases. A similar view was also expressed in the cases of Sardar v. The State 1996 PCr.LJ 1848 and Inam Ullah Rashid v. The State PLD 1998 Lah.
318. With great respect to the learned Judges deciding the case of Muhammad Yousaf relied upon by the learned counsel for the petitioner we have felt that the learned Judges in that case were not properly assisted and the relevant judgments rendered by the Honourable Supreme Court of Pakistan and a Full Bench of this Court had not been presented before the said learned Judges in their true perspective.
4. As regards the submission of the learned counsel for the petitioner viz-a-viz assumption of jurisdiction by the learned Additional Sessions Judge, Sahiwal suffice it to observe in that context that any wrong assumption of jurisdiction by a Court does not divest the proper Court having the necessary jurisdiction in the matter of its authority or jurisdiction to try such a case.
5. In view of the fact that the F.I.R. In the present case contains a specific allegation regarding use of a .222 rifle by one of the accused persons and also because the eye-witnesses mentioned in the F.I.R. Have so far stuck to their version of the incident regarding use of such a weapon we have found that the case in question was exclusively triable by a Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975 despite the fact that no .222 rifle had been recovered by the police during the investigation and despite any opinion which might have been recorded by the police regarding use or otherwise of such a weapon during the occurrence.
The impugned order passed by the Judge, Special Court No,VI, Multan on 11-3-1999 is, therefore, unexceptionable and the same is hereby upheld. This writ petition is dismissed with no order as to costs. #EndJudgment