1. ' The present applicant has 'preferred this criminal revision application by 'challenging the impugned order, dated 21-9-2000 passed by learned Judge, STA, District Jacobabad whereby he has transferred the STA Case No,512 of 1997 to the ordinary Court.
2. ' Learned counsel for the applicant has drawn our attention on the contest of F.I.R. Wherein it is clearly mentioned that one of the accused namely Shah Muhammad was carrying K.K and he has fired with K.K. Straightaway on the deceased and according to him, in view of using the K.K. The matter pertains to STA Court and not to ordinary Court. He has further contended that challan is said to have been submitted in the month of April, 1994 and the application under sections 4(2)/5 read with Schedule of the Suppression of Terrorist Activities (Special Courts) Act, 1975 is said to have been moved on behalf of accused on 21-9-2000 and thereafter the order has been passed.
3. He has placed reliance on a case Allah Din and 18 others v. The State and another (1994 SCM R 717) wherein the Honourable Supreme Court has held that jurisdictional 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 challan---Court on the basis of some material had to decide whether cognizance is to be taken or not.
4. ' We have heard learned counsel for the parties and have gone through the impugned order and the contents of F.I.R. For the purpose of deciding question of jurisdiction, Court has to rely upon the material which is in possession of the prosecution at the time of presentation of case. In the present case challan has been submitted in the year 1994 and the cognizance has been taken in the year 2000. In the reported case 1992 PCr.LJ 2308 which is Full Bench of three Judges of Lahore High Court the point involved was identical as it was alleged in the F.I.R. That K.K was used but during investigation it was not recovered and on that ground that mala fide trial for Special Court was resisted. Contention was repelled on the ground that non-recovery of K.K could not justify the conclusion that the same was not at all used and mala fides were not proved.
5. ' We are in agreement with a view expressed in the aforementioned authority reported in 1994 SCM R 717 and 1992 PCr.11 2308 and further observe that question of jurisdiction can be determined on the basis of F.I.R. And other material which is produced by the prosecution at the time of presentation of challan. On the basis of that material the Court has to decide whether cognizance is to be taken. In the instant case, there are eye-witnesses and they have supported the allegation in F.I.R. About the use of K.K like weapon. The learned Judge has not taken into consideration the legal aspect of the case and the contentions raised by Mr. Noor Muhammad Soomro have got the substance. Accordingly, the impugned order is set aside. In result, this Criminal Miscellaneous Application No,17 of 2001 is accepted.