The necessary facts giving rise to the present reference are that in the morning of 30-8-1992 one Doda was done to death and one Isma il received injuries in the area of Chhan Gurdi Daff situated within the jurisdiction of Border Military Police Post, Kashoba Sorai, District Dera Ghazi Khan and in respect of the said incident F.I.R. No,6 of 1992 was lodged at the said Border Military Police Post by Ibrahim complainant on the same day for offences under sections 302/324/34, P.P.C. Wherein Haroon and others were implicated as the culprits. It appears that during the same occurrence one Khairu had also been killed and one Ismail belonging to the opposite-party had also received injuries and, therefore, regarding the same occurrence F.I.R. No,5 of 1992 was also lodged by Siddique Muhammad complainant in the earlier part of the same day at the same Border Military Police Post for offences under sections 302/324/34, P.P.C. Against Qaiser and others, One of the differences between the said two F.I.Rs, was that in the case F.I.R. No,6 of 1992 the accused party was alleged to have used '12 bore guns, a hatchet and a dagger whereas in case F.I.R. No,5 of 1992 the accused party had allegedly used a semi-automatic rifle apart from the other weapons. Thus, on the basis of these two peculiarities in the above-mentioned two cases the challan in case F.I.R.
No,6 of 1992 was submitted before the learned Sessions Judge, Dera Ghazi Khan whereas the challan in case F.I.R. No,5 of 1992 was received by the learned Special Court, Dera Ghazi Khan constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975. During the trial of case F.I.R. No,5 of 1992 the learned Special Court was apprised of the fact that the case F.I.R. No,6 of 1992 pertaining to the same incident was being tried by the learned Sessions Judge, Dera Ghazi Khan and it was urged before him that as a matter of propriety both the said cases ought to be tried before the same Court so as to avoid any conflict in judgments. The learned Special Court, however, felt handicapped in getting the abovementioned case F.I.R. No,6 of 1992 transferred from the Court of the learned Sessions Judge, Dera Ghazi Khan to itself as the learned Special Court found that the offences involved in the said criminal case were not included in the Schedule appended with the Suppression of Terrorist Activities (Special Courts) Act, 1975 and, thus, the said case could not be tried by the learned Special Court. Hence, the present Reference has been filed by the learned Special. Court, Dera Ghazi Khan before this Court seeking guidance in the matter.
2. I have heard the learned Assistant Advocate-General and the learned counsel representing the accused party in case F.I.R. No,6 of 1992 and the complainant party in case F.I.R. No,5 of 1992 at some length and have gone through the record of these cases with their assistance.
3. It may be advantageous to reproduce here the provisions of section 4 of the Suppression of Terrorist Activities (Special Courts) Act, 1975 for facility of reference:-- "4. Jurisdiction of Special Court.--
(1) Notwithstanding anything contained in the Code, the scheduled offences shall be triable exclusively by a Special Court: ' Provided that this section shall not be construed to require the transfer to a Special Court of any case which may be pending in any Court immediately before the constitution of the Court.
(2) If, in the course of a trial before the Special Court, the Court is of opinion that any of the offences which the accused is alleged to have committed is not a scheduled offence, the Court shall record such opinion and try the accused only for such offence, if any, as is a scheduled offence."
A bare reading of subsection (2) of the above reproduced section 4 of the Act of 1975 shows that a Special Court constituted under the said Act has no jurisdiction at all to try any offence other than an offence which is included in the Schedule appended with the said Act. It is, thus, quite clear that if the offences involved in case F.I.R. No,6 of 1992 mentioned above are not scheduled offences then the said case cannot be tried by the learned Special Court at all.
4. It is also relevant to mention here that according to the provisions of section 4-A of the abovementioned Act of 1975 this Court has jurisdiction to transfer a criminal case from one Special Court to another Special Court but no power has been conferred by the said Statute upon this Court to transfer any case from a Court of Session to a Special Court constituted under the Act of 1975.
5. What emerges from the above discussion is that the learned Special Court has no jurisdiction to try the case F.I.R. No,6 of 1992 and this Court has no jurisdiction to transfer the abovementioned case F.I.R. No,6 of 1992 to the learned Special Court, Dera Ghazi Khan. Thus, the present Reference throws up a situation before this Court wherein it is impossible that the abovementioned two cases arising out of F.I.R. No,5 and F.I.R. No,6 of 1992 can be tried together as both the learned Courts below, i,e, the learned Sessions Judge, Dera Ghazi Khan and the learned Special Court, Dera Ghazi Khan have no jurisdiction to try the case which is not presently pending before it. It may be observed here that the rule that two or more cases pertaining to the same incident but advancing different versions thereof should ordinarily be tried together and before the same Court is only a rule of propriety and not one of any statutory requirement. It goes without saying that a rule of propriety cannot be inflexible because a situation may arise where adherence to a rule of propriety may be an impossibility as is the situation in the present Reference. It has already been held by the Hon'ble Supreme Court of Pakistan in the case of Muhammad Sadiq v. The State and another PLD 1971 SC 713 and also in the case of Khair Din v. Inayat and another 1974 SCM R 140 that in a situation where such a rule of propriety cannot be strictly followed then trial of such cases by different Courts may be permissible and would not offend against any law.
6. For what has been discussed above the impossibility of transfer of case F.I.R. No,6 of 1992 to the learned Special Court, Dera Ghazi Khan as also the impossibility of trial of case F.I.R. No,5 of 1992 by the learned Sessions Judge, Dera Ghazi Khan leaves this Court with no other option but to advise the learned Special Court as well as the learned Sessions Judge, Dera Ghazi Khan to proceed with the respective trials of cases F.I.R. No,5 and F.I.R. No,6 of 1992 before their own Courts separately. This Reference is answered in these terms.