' This judgment will dispose of Criminal Appeal No,561 of 1995 filed by Noor Muhammad, appellant, who was convicted and sentenced by learned Additional Sessions Judge, Toba Tek Singh vide his order, dated 7-8-1995 to undergo life imprisonment with a fine of Rs,1,00,000, or in default two years'
S.I. Under section 10(2)(a) of Dangerous Drugs Act, 1930 with the benefit of section 382-B, Cr.P.C.
2. According to the F.I.R. Exh.P.A./1 the facts of the case were that a police party was present at Adda Kot Khatran located at Kamalia Road in connection with patrol duty and to keep vigilance upon the narcotics dealers the police party had reached there by means of a private vehicle. At about 9-50 a.m., an information was received by Amir Anjam, S.-I. That there was a man selling heroin at a point near Chaudhry Petrol Pump at Kamalaia Rajana Road, and also that an immediate raid upon the offender could lead to its immediate arrest. Accompanied by the said raiding party, Amir Anjam, S.-I. Arrived at the crucial point. At a cue by the secret informant, the existing accused was overpowered. A search about his person resulted into recovery of "Purries" collectively containing one kilogram of heroin from within the right pocket of his shirt. Severed from the main lot, the sample weighing 10 grams was made into a sealed parcel. The remainder was simultaneously converted into a sealed parcel. Under a memo., the sealed parcel containing the bulk was seized. A complaint was drawn up under Articles 3 and 4 of the Prohibition Order read with section 10(2)(a) of the Dangerous Drugs Act which is Exh.P.A. On the record of this case. After completion of investigation, the accused was challaned to face the trial.
3. Prosecution in order to prove its case produced five witnesses in all, thereafter, learned S.P.P.
Tendered in evidence report of Chemical Examiner Exh.P.D and closed the prosecution case then the statement of the appellant was recorded under section 392, Cr.P.C., in which he pleaded innocence and claimed false implication.
4. At the very initial stage, learned counsel for the appellant submits that order passed by learned Additional Sessions Judge, Toba Tek Singh is coram non judice because he was not competent to try the said case and in this regard he had referred section 31 of the Dangerous Drugs Act, 1930 and the cases according to learned counsel for the appellant under section 10(2)(a) of Dangerous Drugs Act, 1930 are to be tried by Magistrate only and not by learned Additional Sessions Judge who was not especially empowered by the Provincial Government in this behalf. Learned counsel for the appellant submits that as far as trial held by learned Additional Sessions Judge, he was not competent to try the same as he was not notified as required under section 35 of the Drugs Act.
Further submits that a report was called for from learned Sessions Judge, Toba Tek Singh which has been received and the said report is not clear one. He submits that report only shows that sentence provided under section 4 of Dangerous Drugs Act, 1930 was upto two years and fine and the said offence was triable by Magistrate 1st Class and II Class especially empowered by the Government as provided by section 31 of the said Act. The Act was amended in year 1983 vide Ordinance No,XXX of 1983 and new subsections (2)(a) and (2)(b) in section 10 was introduced and punishment was enhanced to life imprisonment with fine in year 1994, vide Act XV of 1994, the subsections (2)(a) and (2)(b) were further amended. Death punishment was provided vide sub- clause (2)(b) of section 10 of the Act. The report submitted by Deputy District Attorney, Toba Tek Singh further reveals that, however, section 31 of he Act was got amended as regard the notification for trial by the Sessions Judge. Learned counsel for the appellant has also referred to section 29 of Cr.P.C., which is reproduced below:-- "29. Offences under other laws.--- (1) Subject to other provisions of this Code, any offence under any other law shall when any Court is mentioned in this behalf in such law be tried by such Court.
(2) When no Court is so mentioned, it may be tried by the High Court of subject as aforesaid by any Court constituted under this Code by which such offence is shown in the eighth column of the Second Schedule to be triable.
' Provided that the offences punishable with imprisonment for a term not exceeding three years, with or without any other punishment, shall be tried by the Executive Magistrates."
5. Learned counsel for the appellant submits that even the charge was framed under section 10(2)
(a) of the Dangerous Drugs Act, 1930 and not under sections 3/4 of the Prohibition Ordinance and the conviction was also passed by learned Additional Sessions Judge under section 10(2)(a) of the Dangerous Drugs Act, 1930. He has relied upon 1979 PCr.LJ 525, 1987 PCr.LJ 2049, PLD 1989 Pesh. 162, 1996 PCr.LJ 449 and 1996 PCr.LJ 1689.
6. On the other hand, learned counsel for the State concedes the submissions made by learned counsel for the appellant, that although the sentence was announced under section 10(2)(a) of the Dangerous Drugs Act, 1930 but not amendment was in under section 31 of the Drugs Act, 1930.
7. I have heard learned counsel for the parties. Both learned counsel for the appellant and learned State Counsel are of unanimous opinion, that as no amendment was made under section 31 of the Drugs Act, 1930 and there was no notification issued in favour of learned Additional Sessions Judge to have tried this matter as required under the law. The learned Additional Sessions Judge was not competent to hold the trial in this case. In this view of the matter, this appeal is accepted.
Conviction and sentence awarded to the appellant by the learned trial Court is set aside and the case is remanded back to the learned Ilaqa/Judicial Magistrate 1st Class, for de novo trial in accordance with law. The appellant shall appear before the learned trial Court on 17-7-2000. With these observations, this appeal stands disposed of.
Appeal accepted/Order accordingly.
2001 P Cr. L 716 [Lahore] Before Tassaduq'Hussain Mani and Asif Saeed Khan Khosa, JJ MUHAMMAD AMIN---Petitioner versus THE STATE and another---Respondents Writ Petition No,11987 of 1999, heard on 28th September, 2000.
(a) Penal Code (XLV of 1860)--- ----Ss. 302/324/148/149---Suppression of Terrorist Activities (Special Courts) Act (XV of 1975), S.4-- -Constitution of Pakistan (1973), Art.199--- Constitutional petition---Jurisdiction of Special Court--- F.I.R. Specifically contained an allegation regarding use of a .222 rifle by one of the accused persons during the incident---Eye-witnesses mentioned in the F.I.R. Had so far stuck to their version made before the police regarding use of such a weapon---Case was, therefore, exclusively triable by the Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975--- 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 occurrence, could not take away the jurisdiction of Special Court , to try the case---Decision about jurisdiction of a Court to try a criminal case could not be abdicated to the whims or conclusions of an Investigating Officer--- Wrong assumption of jurisdiction by Sessions Court of the case had not divested the Special Court having the necessary jurisdiction in the matter of its authority or jurisdiction to try it---Impugned order of Special Court summoning the case for trial was consequently upheld and the Constitutional petition was dismissed accordingly. [pp. 718, 719] A, B & C Muhammad Yousaf v.
Special Judge and others Writ Petition No,1060 of 2000 disagreed. Allah Din and 18 others v. The State and another 1994 SCMR 717; Azhar Hussain and others v. Government of Punjab and others 1992 PCr.LJ 2308; Sardar v. The State 1996 PCr.LJ 1848 and Inam Ullah Rashid v. The State PLD 1998 Lah. 318 ref.
(b) Jurisdiction--- ----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. Fp. 718] B Ch. Muhammad Yaqoob Kang for Petitioner. Abdul Razzaq Raja for the State.
Raja Sultan Khurram for Respondent No,2.
Date of hearing: 28th September, 2000.
' 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 SCMR 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.