' JAVED IQBAL, J.---This petition for leave to appeal is directed against judgment dated 15-5-2001 passed by learned Division Bench of High Court of Balochistan, Quetta, whereby the Constitutional petition preferred on behalf of petitioner has been dismissed and judgment dated 11-10-1999 passed by learned Special Judge (STA) Jaffarabad at Dera Allah Yar has been kept intact.
2. Briefly stated the facts of the case as enumerated in the impugned judgment are to the effect that "the matter relates to an incident of murders of Sanaullah, Mst. Nihalan, Sadam Hussain and Adam Khan and for launching murderous assault on Mst. Mehtab and Umeedan with an unlicensed Kalashnikov, Shot gun and T.T. Pistol. The accused respondents herein alongwith Sachal Mehrulllah, Pirul and. Khan Muhammad were named as accused persons in F.I.R. No, 148 of 1998 registered at Police Station, Dera Allah Yar aA 29-6-1998 at 8-05 a.m., wherein it was alleged that one Sachal allegedly made an oral report that last night he alongwith his son Adam Khan, daughter-in-law namely Umeedan, his wife Mehtab and daughter Mst. Nehalan and her son Saddam Hussain aged about 3 years were sleeping on their cots, whereas his son Muhammad Azam alongwith his son-in-law namely Muhammad Umer had already gone for ploughing the land of one Jamali by means of tractor and about 3-00 a.m. He woke-up due to the weeping of his daughter's son Saddam Hussain, so he asked his daughter Nehalan wife of Muhammad Umer to take care of the child and at the same time he switched on the electric bulb and found that his daughter Nehalan instead of rising up took a turn and attempted to conceal some one in chader and thus, he suspected that some stranger was lying with her and on his having move there, found Sanaullah lying on the cot with his daughter, who fired with a T.T. Pistol on him which hit on his small finger of his left hand. It has further been attributed in the report to accused Sachal that according to him his wife Mehtab, son Adam Khan and daughter-in-law Umeedan also woke-up due to the shot fired by Sanaullah who went on firing and; on fording an opportunity he managed to lay, hand on the Kalashnikov with which he fired a burst at Sanaullah, as a result whereof Sanaullah, his daughter Nehalan and daughter's son Saddam Hussain succumbed to the injuries on the spot, whereas on account of firing resorted to by Sanaullah and him; Adam Khan, his wife Mehtab and daughter-in-law Umeedan who were standing near to deceased Sanaullah also sustained serious injuries and on account of fire reports Amir Muhammad and Kamran also attracted to the place of incident to whom he allegedly told that he declared Sanaullah as 'Siyahkar' with his daugher Mst. Nehalan but on account of firing his daugher's son namely Saddam Hussain also expired and in the meanwhile, his son Muhammad Azam also reached to the house on having heard the fire reports. After necessary investigating, challan was submitted against the accused and learned Special Judge (STA) Jaffarabad at Dera Allayyar was pleased to take cognizance in the matter on receipt of file. However, before receipt of challan and taking cognizance of the matter in the challan case, the petitioner/complainant filed a direct complaint based on different version of the incident (while admitting that her son Adam Khan was responsible for double murder, accused the respondents herein for the remaining incident) before the learned Special Judge (STA) on 27-8-1998 and the learned Special Judge was pleased to adjourn the matter for 2nd September, 1999, for statement of complainant and P. Ws. It appears from complaint's case that after recording statement of complainant and witnesses produced, the learned Special Judge (STA) was pleased to take cognizance of the complaint and issued bailable warrants of accused respondents herein. It also appears that both the cases were tried separately.
However, proceedings in both the cases were being conducted on the one and same date. Finally vide judgment dated 11-10-1999, impugned herein, the learned Special Judge (STA) was pleased to acquit all the accused, impleaded in complaint case. Similarly the learned Special Judge (STA) also acquitted the accused in police case, vide judgment of even date. This Constitutional petition has been filed to challenge the acquittal of the accused respondent herein by the complainant in the complaint case, who is wife of main accused Sachal in police case. It is also pertinent to point out that accused respondents herein were also accused in police case alongwith accused Sachal, Mehrullah, Pirul and Khair Muhammad and as mentioned hereinbefore through a separate judgment, they have been acquitted of the charge, which order has not been challenged by anyone, hence attained finality".
3. We have heard Mr. Amanullah Kamrani, learned Advocate Supreme Court at length who mainly contended that the cognizance of private complaint could not have been taken by the learned Special Judge (STA) as the same could have only been taken by the learned Sessions Judge in accordance with the provisions as contained in section 200, Cr.P.C. Which has not been made applicable to Special Courts constituted under the Suppression of Terrorist Activities (Special Court) Act, 1975. It is further contended that the judgment passed by learned Special Judge (STA) being ab initio void has no legal effects whatsoever and the same be set aside. It is argued with vehemence that the complaint case should have been tried first. In order to substantiate his version reference has been made to the dictum as laid down in case titled Noor Ellahi v. Ch. Ikramul Haq (PLD 1966 SC 708).
4. We have carefully examined the respective contentions as agitated on behalf of the petitioner in the light of relevant provisions of law and record of the case. We have minutely perused the impugned judgment. Let we mention here at the outset that the scheduled offences under the Suppression of Terrorist Activities (Special Courts) Act, 1975 are exclusively triable by the Special Court in view of the provisions as enshrined in section 4. The Special Court has been constituted properly and trial has been conducted in accordance with law after completion of all the necessary legal formalities and cognizance has rightly been taken regarding scheduled offences.
The entire trial neither can be vitiated nor declared null and void for the reason that cognizance of complaint case has been taken by the learned Special Court in violation of the provisions of section 5 of the Suppression of Terrorist Activities (Special Courts) Act, 1975. At this juncture it is to be noted that jurisdiction of the Special Court was invoked by the petitioner herself and intention behind the curtain seems to frustrate the object of the decision of learned Special Court on hyper- technical objections. There is no cavil to the proposition that jurisdiction cannot be conferred with mutual consent of the parties but it may be kept in view that the private complaint was filed by the petitioner herself and it was not with the consent of other party. In addition to it, manner of taking cognizance of the offence by a Court of Law would not cause prejudice to petitioner because fact remains that offences charged against respondents were included in the Schedule of Act, 1975 and test laid down by this Court in the case of Rifat Hayat v. Special Judge (1994 SCM R 2177) fully stands satisfied. The respondents have already suffered ordeal of trial and retrial of the case already decided and attained finality cannot be directed under the garb of fine technicalities of law. In view of the chequered history of the case as mentioned in the preceding paragraph the dictum as laid down in case reported as Noor Ellahi (supra) cannot be made applicable specially when cognizance of both the cases had been taken with a little difference of time. No illegality whatsoever has been committed by the learned Special Court by proceeding with the police case after taking proper cognizance of the matter. The scheduled offences could have only been tried by the learned Special Court and hence the question of any infirmity or illegality in the trial does not arise. In this regard we are fortified by the dictum laid down in case of Rifat Hayat (supra), relevant portion whereof is reproduced hereinbelow for ready reference:-- ' "A Special Court is entitled to take direct cognizance of a case triable by it exclusively if a case has not been sent to it in accordance with the provisions of section 190 of the Code. The Special Court can take cognizance of the case on the basis of complaint filed by complainant which was much earlier to the police report under section 173 of the Code."
5. In our considered view the simultaneous trial of both the cases has not caused any prejudice whatsoever. The learned Special Judge has rightly exercised his jurisdiction as conferred upon him under section 5(3) read with section 5-A(9) of the Suppression of Terrorist Activities (Special Courts) Act, 1975. The findings as derived by the two Courts below have not been shown to have suffered from any legal infirmity or non-consideration of any material piece of evidence and being unexceptionable hardly call for any interference.
6. In the light of foregoing discussion we have not been able to find out any flaw which could persuade us to interfere with the judgment impugned. The petition being devoid of merit is resultantly dismissed.