' SYED DEEDAR HUSSAIN SHAH, J.---Petitioner seeks leave to appeal against the order of the High Court of Sindh dated 13-7-2000 whereby Criminal Revision Application No,68 of 2000 filed by him challenging the order of the Additional Sessions Judge-IX, South, Karachi dismissing application of the complainant for transfer of the case to the S.T.A. Court was dismissed.
2. Facts of the case are that on a complaint of Mst. Nasreen, an F.I.R. No,157 of 1999 was registered for an offence punishable under sections 395/ 342/506-B, P.P.C. By Police Station Darakshan and after finalization of the investigation the police submitted a charge-sheet under sections 395/342/ 506-B, P.P.C. The trial Court after considering the material placed before it, framed charge under sections 342/506-B/149/385/395 and 109, P.P.C. And examined prosecution witness complainant Mst. Nasreen Yousuf wife of Muhammad Yousuf. After conclusion of the evidence of the complainant, counsel for the complainant submitted an application that provisions of section 365- A has been attracted, therefore, case may be sent to S.T.A. Court.
3. We have heard Mr. Mir Muhammad Sheikh, learned counsel for the complainant, who referred to the relevant portion of the F.I.R. Which reads as follows:- ' "On 3-7-1999 early in the morning while I was .Confined in the bed room (in one room of their house) my husband was taken out under the gun point by Jameel Akhtar Kiyani, his said sons and one bodyguard named Iltaf while my aunti Riaz Bibi who is master minded behind all this scene was keeping eye on the room where I was confined. All of them had weapons with them in their Car Honda Civic having registration No,ABC-222 they forcibly took my husband to the Chartered Standard Bank Clifton Karachi, where new account was opened in the name of Jameel Akhtar Kiyani and the entire money/all travelers cheques were deposited in the Bank signed by my husband under the threat fear and compulsion on gun point and after that they brought him back to their house and put him in the room where I was confined."
4. According to the learned counsel, complainant Mst. Nasreen in her evidence recorded by the trial Court in an unequivocal term implicated the respondents/accused stating therein as follows:- - ' "At about 8.00 a.m. They again came and were armed with deadly weapon. Jameel Akhtar Kiyani put his weapon on the chest of my husband and Fawad put his weapon at my sample and directed us to produce the Dollars which have been brought from London. On this raised hue and cry but my husband submissively replied that you need money they replied yes, we need money."
' She further stated: ' "I resisted and tried to snatch the brief case from Riaz Bibi and pushed Fawad. Riaz Bibi caught hold of my hairs and gave slap on my face. Fawad also gave slap on my face. My husband opened the brief case and. Faisal took out the cash, dollars and handover the same to Riaz Bibi. There were 1,22,400 U.S. Dollars in the brief case (5,51,300 dollars cash and Travel cheques of 6,70,100). I was raising cries."
5. Mr. Mir Muhammad Sheikh further submitted that the learned trial Court as well as the learned High Court did not properly appreciate the evidence and the contents of the F.I.R. From which it is quite clear that offence would fall under section 365-A which is triable by the Special Court established under Suppression of Terrorist Activities (Special Courts) Act, 1975. It would be pertinent to refer to section 365-A, P.P.C. Which reads as under:-- "365-A. Kidnapping or abduction for extorting property, valuable security, etc.---Whoever kidnaps or abducts any person for the purpose of extorting from the person kidnapped or abducted, or from any person interested in the person kidnapped or abducted, any property, whether movable or immovable, or valuable security, or to compel any person to comply with any other demand, whether in cash or otherwise, for obtaining release of the person kidnapped or abducted, shall be punished with death or imprisonment for life and shall also be liable to forfeiture of property."
6. Mr. Mir Muhammad Sheikh also cited Allah Din v. The State 1994 SCM R 717 wherein it has been held that question of jurisdiction of Special 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 and that on the basis of such material the Court has to decide whether cognizance is to be taken or not.
7. Mr. Suleman Habibullah, learned counsel for the State supported the arguments of the learned counsel for the petitioner.
8. Mr. Gul Zaman Khan, learned counsel for respondents Nos.1 to 5 vehemently contended that the orders passed by the trial Court as well as the High Court dismissing the prayer of the petitioner are unexceptionable. The evidence is yet to be recorded by the trial Court and it would be premature to refer the case to the S.T.A. Court. He refers to Neelam Mawaz wife of Maj. (Retd.) Javed Mowaz v. The State PLD 1991 SC 640. In the above cited case allegation against accused facing charge under section 365-A that she while in custody led to recovery of a vehicle would not bring case within purview of section 365-A as such offence committed by accused in such case, even if allegations contained in prosecution case were accepted as correct, would appear to fall within purview of section 411. On the face of it, the above case is not applicable as facts of case are different and distinguishable and are not attracted to the present case.
9. We have considered the arguments of the learned counsel for the parties and have also minutely examined the case law. According to the F.I.R. And the deposition of the complainant, referred to hereinabove, the offence ex facie would fall under section 365-A, P.P.C. And the case- law referred to by Mr. Mir Muhammad Sheikh is relevant and helpful to the case of the complainant.
The trial Court as well as the High Court did not consider the submissions of the complainant in its proper perspective. Advisedly we refrain to dilate upon other aspects of the case which may prejudice the case of either party before the trial Court. However, in our humble opinion, ex facie the offence would fall under section 365-A which is triable by S.T.A. Court established under Suppression of Terrorists Activities (Special Courts) Act, 1975.
' For the above facts and reasons this petition is converted into an appeal and is hereby allowed.
The criminal case being Sessions Case No,28 of 2000 (State v. Jamil Akhtar Kiyani and others) being outcome of F.I.R. No,157 of 1999 of Police Station Darakhshan shall stand transferred from the Court of IX-Additional Sessions Judge South. Karachi to S.T.A. Court having jurisdiction for disposal according to law.