' TARIQ PARVEZ, J.--- This single judgment of ours shall dispbse of three appeals bearing Nos.88 of 2000 (Muhammad Saleem v. The State and one another), 89 of 2000 (Faiz Muhammad v. The State and others) and 90 of 2000 (Saifullah Khan v. The State), as all have arisen out of judgment of conviction recorded by Judge, Special Court, Tank, Camp at D.I. Khan on 21-9-2000.
2. As we tend to accept these appeals not on merits but on technical grounds regarding assumption of jurisdiction by the trial Court, we would not give the facts of the case except those which are relevant.
3. A case was registered on the basis of F.I.R. No,50, dated 12-2-1998, in Police Station City, D.I. Khan, on the complaint of Kifayatullah under sections 13, Arms Ordinance, 120-B/353/412, P.P.C. Read with section 17(3) of the Offences Against Property (Enforcement of Hudbod) Ordinance, 1979.
' Allegations in the F.I.R. Were that Haraba was committed through the use of kalashnikovs.
4. It appears that because of use of kalashnikovs and because of section 13, Arms Ordinance, challan was directly filed before the learned Judge, Special Court, Tank, Camp at D.I. Khan, who on 14-9-2000 framed formal charge against the accused under the above sections of law with specifically stating that I (name) Special Judge, Tank, Camp at D.I. Khan, do hereby charge you ....
5. We have gone through the entire record of the case and it appears that the trial Judge continued the proceedings as Special Court, until termination of the trial including the stage of writing of judgment which is impugned before us.
6. When this case was taken up for arguments, it was pointed out if this Court would have appellate jurisdiction under section 7 of the Suppression of Terrorist Activities (Special Courts) Act, 1975 (hereinafter to be called as the "Act") or because of charge being also framed under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (hereinafter to be called as the "Ordinance"), it should be the Federal Shariat Court to have the appellate jurisdiction in view of section 24 of the Ordinance.
7. Under the Act, Special Courts are constituted under section 3 and these Courts have been vested with jurisdiction under section 4 of the Act whereunder notwithstanding anything contained in the Code, all the scheduled offences shall be triable exclusively by a Special Court. Under subsection
(2) of section 4 of the Act, if during the course of trial, the Special Court is of the opinion that any offence for which the accused is alleged to have committed, i$ not a scheduled offence, it shall record its opinion and would try the accused only for such offence which is scheduled and for no other offences. Under section 5 of the Act mode of taking cognizance is provided, whereas under section 5-A procedure of the trial is laid down. Section 7 provided appeal from the sentence imposed by the Special Court which shall be preferred to the High Court within 30 days of the passing of the sentence or order of acquittal. The appeal shall be heard and decided by a Bench of not less than two Judges of the High Court within three months.
8. Under section 24 of the Ordinance, an offence under section 9 or section 17, is triable by the Court of Sessions, and an appeal from order under the said sections or from an order under any provision of the Ordinance, where sentence imposed is more than two years, shall lie to the Federal Shariat Court.
9. The assumption of jurisdiction and taking of cognizance of nonscheduled offence by Special Court was taken up by Lahore High Court and a judgment delivered by a Full Bench reported as 1992 PCr.LJ 1932, it was ruled that a Judge, Special Court cannot take cognizance of any offence which is not scheduled and if so taken, would be without jurisdiction. Reference was made to PLD 1991 SC 641.
' When the law as laid down, mentioned above, by the superior Courts of the Country is so clear on the issue and when there is a statutory bar on the powers of the Special Court under section 4(2) of the Act, cognizance taken, proceedings conducted and conviction recorded for non-scheduled offences would be corum non-scheduled offences would be corum non-judice, without jurisdiction and illegal.
10. In this case as we have stated in the preceding para., that charge was also framed under section 17(3) of the Ordinance read with sections 120-B/353/412, P.P.C. And 13, Arms Ordinance though conviction has been recorded under sections of P.P.C. And if these would have been the only offences for which the accused was charged, the appellate forum would have been the Federal Shariat Court and not this Court.
11. The question, however, arises is if in a case when combination of the facts are such that there is scheduled offence and also a nonscheduled offence, whether challan shall be filed separately and the accused to face two trials before two different forums for the two offences or there can be a mechanism in the statute which should provide a remedy whereunder both forum can exist and can work but within their independent spheres. We would refer to section 4(2) of the Act again where Special Court tries the scheduled offence and no other Court. Under section 10 of the Act, the Act has been given overriding effect which provides that the provisions of the Act shall have the effect notwithstanding anything contained in the Code or any other law for the time being in force (underlined by us for emphasis). Somewhat similar provision exists in the Ordinance where under section 3, the provisions of the Ordinance have been given overriding effect over all other laws which states that the Ordinance shall have the effect notwithstanding anything contained in any other law for the time being in force.
12. The general principle of interpretation of statute is that special law shall have precedence over the general law and when there are two special laws and they are inconsistent on any provision/situation, then one which is later, shall prevail over the earlier one.
13. In this case, Act was promulgated in the year 1975 while the Ordinance is of the year 1979. All Wisdom and knowledge is attributed to the Legislature and it is always presumed that the existence of an earlier law was not only in the knowledge of the Legislature but was considered while enacting the subsequent law. On this assumption, we hold that when section 3 of the Ordinance was being drafted, the law-maker had in their mind the provisions of section 4, section 7 and section 10 of the Act.
14. As we have referred to section 4(2) of the Act earlier, where there is bar on the powers of the Special Court not to try offences other than the Scheduled Offences but there is no such bar under the Ordinance on the powers of the Sessions Judge while conducting trial under the Ordinance.
This would mean that the Sessions Judge while conducting trial under any section of the Ordinance would thus, be competent within the meaning of section 3 of the Ordinance to hold the trial of all other offences committed during the course of such transaction which is the subject- matter of trial before him including the scheduled offence.
15. In view of what we have discussed above, our finding is that in view of section 3 of the Ordinance which has got overriding effect on all other laws on the subject which were in force for the time being, it will be the Court of Sessions Judge which shall and should have tried the case. The conviction and sentence recorded by the Special Court are held to be coram non-judice, without jurisdiction and of no legal effect. The same are, therefore, set aside.
16. The appeals are accordingly allowed but to the extent that the conviction and sentence recorded are set aside and the case stands remanded back to be tried by the learned Sessions Judge. Before parting with this order/judgment of ours, we cannot ignore the fact that at times the agony of the litigants is enhanced but due to the non-application of mind by the trial Court and also at times when no proper assistance is rendered to the trial Court by the counsel representing the parties. It should be rather advisable for the trial Courts, that in future when there is any doubt on the assumption of jurisdiction in any offence, they should first determine the same by hearing both the sides i,e, the defence and the prosecution and then proceed with the trial.
' Our this order shall not preclude any of the accused to apply, for bail before the trial Court on any available legal ground.