1. ' TARIQ PARVEZ KHAN, J.--- Appellant before us namely, Laiq Nawaz, is accused in Crime No,142, dated 6-7-2000 of Police Station Haved, Bannu. The charge against him is that on 6-7-2000 at 8- 30 a.m. While armed with kalashnikov, has caused Qatl-e-Amd of Muhammad Nawaz deceased by firing at him. Muhammad Nawaz deceased is father of appellant. The report of the occurrence was made by Dilfaraz, a cousin of the appellant i,e, nephew of the deceased.
2. As the tragic incident took place on a petty matter like land dispute between father and son, therefore, the parties were persuaded to effect compromise which was duly effected and in this respect statements of all the legal heirs were recorded by the learned trial Judge.
2. ' However, the learned Judge, Special Court despite compromise, but because the appellant is charged for 'patricide, the learned trial Judge while invoking his power under section 311, P.P.C., convicted the appellant, vide judgment, dated 27-3-2001, holding that the crime falls within the definition of Fasad-fil-Arz. Therefore, accused was held guilty under section 302(b), P.P.C. Read with section 311, P.P.C. And has been sentenced to 10 years' R.I.
3. The learned counsel for the appellant contended that no conviction and sentence could be recorded under section 311, P.P.C. Unless an independent full-fledged trial for this purpose was held.
3. He argued that the accused/appellant was charged under section 302, P.P.C. And because the parties have compounded the offence, the accused shall be deemed to have been acquitted of the murder charge and in case the trial was to be proceeded under section 311, P.P.C., a separate charge should have been framed, evidence in this respect led with opportunity to the accused to cross-examine the witnesses and with further opportunity to adduce evidence in defence.
4. In this case the learned trial Judge has not doubted the genuineness of the compromise but because the father was killed and son is charged, it was held to be a brutal murder. Such findings can only be recorded after recording evidence which was not. Even otherwise, the plain reading of section 311, P.P.C. Would show that A power under section 311, P.P.C. Would be exercised only where all Walies of the deceased have either not waived off or not compounded the offence, meaning thereby that if all Walies have either waived off or have compounded the offence, there would be no punishment of imprisonment as Ta'zir.
4. The above proposition is accepted by the learned Deputy Advocate-General and he concedes the legal position. We, therefore, allow this appeal, the conviction and sentence recorded by the lower Court, vide judgment, dated 27-3-2001, stand set aside. The appellant is acquitted of the charge. He shall be released forthwith, if not required in any other case.
5. Appeal allowed.
6. 2002 P. Cr. L .J 17 [Karachi] Before Muhammad Afzal Soomro, J MUHAMMAD ALI SHAR---Applicant versus THE STATE---Respondent Criminal Bail Application No,344 of 2001, decided on 4th August, 2001.
7. Criminal Procedure Code (V of 1898)--- ----S. 497---Suppression of Terrorist Activities (Special Courts) Act (XV of 1975), S.4---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Penal Code (XLV of 1860), S.337-H(ii)---West Pakistan Arms Ordinance (XX of 1965), S.13-A---Bail---Jurisdiction of Court---Offence against accused clearly fell under 5.395, P.P.C. Which was committed with Klashnikov, an automatic weapon, and the same was covered by the Schedule attached to the Suppression of Terrorist Activities (Special Courts) Act, 1975--Trial Court was consequently directed to 'return the file to the Sessions Judge for onward transfer to the Special Court, where the accused was at liberty to file the bail application-- -Bail application was disposed of accordingly. [pp. 20, 21] A & B PLD 1994 SC 747; Jehangir v. The State 1999 PCr.LJ 476; Azhar Hussain and others v. Government of Punjab 1992 PCr.LJ 2308; Muhammad Shareef. v. The State 1992 PCr.LJ 1219; Mst. Qamer-un Nissa v. The State PLD 2000 Kar.
8. 339; Nawaz Ali and others v. The State 2001 PCr.LJ 521 and Allah Din and otheri v. State 1994 SCM R 717 ref. Awan Rehmatullah Nadeem for Applicant.
9. Aitaf Hussain Surahio for the State.
10. Date of hearing: 2nd July, 2000.
11. ' By this order, I propose to dispose of Criminal Bail Application No,344 of 2001 filed on behalf of applicant Muhammad. Ali in a case bearing Crime F.I.R. No,29 of 1998 of Police Station Geehalpur, District Jacobabad for an offence under sections 17/3, Offences Against Property (Enforcement of Hudood) Ordinance, 1979, 337-1-1(ii), P.P.C. And 13(A), Arms Ordinance. The bail plea of the applicant was declined by the learned Additional Sessions Judge, Kandhkot vide order, dated 7-2-2001.
12. ' The prosecution story as unfolded in the F.I.R. Is that on 16-10-1998 at about 2-00 p.m. Complainant Nasir Shar appeared at Geehalpur Police Station, District Jacobabad and lodged' F.I.R. Alleging that on 10-9-1998 the complainant took out his cattle for grazing in the jungle and while grazing from different places when he reached near his houses where Ghulam Hyder and Majeed both sons of Mootan were also grazing the cattle at nearby jungle. At 6-00 p.m. As the complainant was standing by the side of his cattle it is said that accused namely (1) Mir Hassan, (2) Suhrab both sons of Shah Ali, (3) Ali Muhammad son of Qaiser, (4) Behram son of Lal Box and (5) Muhammad Ali son of Bahram all Shar by Caste 1,- idents of Geehalpur and three more unidentified persons whose faces were open, emerged there. They all were armed with K.Ks. The complainant claimed to identify the culprits as and when brought before him. All the culprits after their arrival told the complainant to keep quiet as they had come to rob the cattle. It has been averred by the complainant that he kept mum due to scare. It has been further alleged in the F.I.R. That all the accused robbed the cattle i,e, three buffaloes valued at Rs,70,000 on the show of weapons and bolted towards north. The complainant raised commotion on which Ghulam Hyder and Majeed Shar came running and all the three followed the culprits. On reaching the culprits the complainant party admonished accused on Holy Qur'an, but instead of returning the cattle, the culprits fired in the air and ultimately took it by force. Thereafter, he returned and on the next day approached Police Station Geehalpur for registration of F.I.R., but the same was not taken down by the incharge of the police station. The complainant, thereafter, filed a petition in the High Court for registration of F.I.R., which was allowed and his F.I.R. Was registered alleging therein that the culprits had robbed his cattle comprising three buffaloes on the show of force. It has been alleged by the complainant in the F.I.R. That he and his witnesses had clearly seen the culprits and could be identified when brought before them. The investigation followed and in due course the applicant Muhammad Ali was sent up to stand trial in the Court of Additional Sessions Judge, Kandhkot.
13. ' Heard Mr. Awan Rehmatullah Nadeem, learned counsel for the applicant and Mr. Altaf Hussain Surahio, learned counsel for the State.
14. ' It has been contended that the F.I.R. Is belated by one month and six days and no satisfactory explanation is furnished. It has been further contended by the learned counsel for the applicant that his client is innocent and he has been ropped in a false case of this nature due to enmity. It has been further contended that the sections 17/3, Offences Against Property (Enforcement of Hudood) Ordinance, 1979 has no applicability on the facts and circumstances of this case as the same would eventually fall under section 395, P.P.C. And lastly it was argued at the bar that nothing incriminating was secured from the possession of the applicant. He has referred to the cases of PLD 2000 Kar. 339 and PLD 1994 SC 747 in support of his contentions, but when confronted on the point of jurisdictional defect inasmuch as the case pertains to the Special Court for S.T.A. Act, 1975.
15. The learned counsel for the applicant jumped of to a case of Jehangir v. The State 1999 PCr.LJ 476 decided by a Division Bench of this Court comprising Mr. Anwar Zaheer Jamali, J. And Syed Deedar Hussain Shah, J. (as he then was), in which the jurisdiction in the cases falling within the ambit of Special Court was curtailed to the extent that offence falling in the Schedule of Special Courts for S.T.A. Act, 1975 would not be attracted where there is no recovery of K.K.
16. ' Mr. Altaf Hussain Surahio, learned counsel appearing on behalf of the State not only opposed the grant of bail, but he assailed the jurisdictional defect on various angles. It has been contended by him that the Sessions Court has got no jurisdiction to try the case or decide any kind of bail application inasmuch as the jurisdiction to try the offence would lie to the Special Court for S.T.A. It has also been analysed by him that as far sections 17/3. Offences Against Property (Enforcement of Hudood) Ordinance, 1979 is concerned, the same has no hearing on the fact , and circumstances of the case in hand and the offence eventually would fall under section 395, P.P.C. The learned counsel has also explored that the alleged offence was committed with a K.K. And under the circumstances the Court of Session has no jurisdiction, but it would lie with the Special Court for S.T.A. According to his opinion the present case be returned back to the Investigating Officer foi submission of challan before the competent forum i,e, Special Court for S.T.A., District Jacobabad.
17. Learned counsel for the State has referred to the cases Azhar Hussain and others v. Government of Punjab 1992 PCr.LJ 2308, Muhammad Shareef v. The State 1992 PCr.LJ 1219, Mst. Qamer-un-Nissa v.
18. The State PLD 2000 Kar. 339 and Nawaz Ali and others v. The State 2001 PCr.LJ 521.
19. ' I have given my anxious consideration to the arguments of the respective parties and perused the record. I do not see eye to eye with contention raised by the learned counsel for the applicant/accused, but contain myself in agreement with learned counsel for the State inasmuch as the Sessions Court has no jurisdiction to try this case and eventually the same would lie before Special Judge, S.T.A., District Jacobabad. The schedule of offence provided in the S.T.A. Act, 1975 shows that the Special Court can concur the jurisdiction when two conditions are satisfied firstly the offence must fall in the schedule of the Act and secondly the same is committed with an automatic weapon such as klashnikov. Adverting to the facts and circumstances of the case in hand it is abundantly clear that the offence falls under section 395, P.P.C. Which is covered by the schedule as provided in the S.T .A. Act, 1975 and secondly the same was committed with K.K. Which is an automatic weapon. As far the contention of the learned counsel for the applicant regarding jurisdictional defect of the case is concerned, the reference. Is made to a case of Allah Din and others v. State 1994 SCM R 717 in which it was held by the Honourable Supreme Court of Pakistan as under:-- "For the purpose of deciding the question of jurisdiction, the Court has to rely upon the material which is in the possession of prosecution at the time of presentation of case. Both the Courts below have acted upon the proposition that jurisdiction is to be determined on allegations made in F.I.R.
20. And the case set up by the prosecution. In support reliance is placed on the case of Azhar Hussain and others v. The Government of Punjab and others 1992 PCr.LJ 2308 which is Full Court Judgment of 3 Judges of Lahore High Court. In the reported case the point involved was identical inasmuch as it was alleged in F.I.R. That klashnikov was used but during investigation it was not recovered and on that ground alongwith allegation of mala fide trial by the Special Court was resisted. Contention was repelled and rightly so, on the ground that non-recovery of klashnikov could not justify conclusion that the same was not at all used and mala fides were not proved.
21. ' We are in agreement with view expressed in the reported judgment mentioned above, 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 the challan. On the basis of that material the Court has to decide whether cognizance is to be taken or not. In the instant case incident is seen by six eyewitnesses and on our query whether eye-witnesses have supported the allegations of F.I.R. About use of klashnikov like weapon, learned counsel for petitioners replied in the affirmative. In the circumstances material available with prosecution in this case is sufficient to justify invocation of jurisdiction by the Special Court."
22. ' In this background, no room is left for accepting withdrawal of the case from the Court of Session for onward transfer to the Special Court S.T.A. For disposal according to law. The learned Additional Sessions Judge, Kandhkot is directed to return the file to the learned Sessions Judge, Jacobabad for onward transfer to concerned Investigating Officer for presenting the challan of the case before a proper forum i,e, Special Court, S.T.A. Jacobabad. After the submission of charge-sheet by Investigating Officer in the Court of Special Judge for S.T.A., Jacobabad, learned counsel would be at liberty to repeat an application for bail on behalf of the applicant.
23. ' Resultantly, Criminal Bail Application No,344 of 2001 stand disposed of.