AZHAR HUSSAIN And Others vs GOVERNMENT OF PUNJAB And Others

MALIK MUHAMMAD QAYYUM, J.--- This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, seeks a declaration that the cognizance taken by the Special Court constituted under Suppression of Terrorist Activities (Special Courts) Act, 1975, at Gujranwala, of the case registered against the petitioners vide F.I.R. No.251/88 dated 1st December, 1988, under section 302/307/148/149 of the Pakistan Penal Code, was illegal, mala fide and without lawful authority.

2. The facts necessary for the disposal of this petition are that the aforementioned criminal case was registered against 18 persons including 9 petitioners at Police Station Wandho, District Gujranwala, for murder of Khushi Muhammad, Zaka Ullah and Akhlaq Ahmad. According to the F.I.R.

Petitioner No.1 was armed with mauser while petitioner No.2 was carrying a Klashnikov which were alleged to have been used during the occurrence. Vide Notification No.8-34/H-SPL-CTS/89 (GRW), the Government referred the case for trial to the Special Court for Speedy Trials, constituted under the Special Courts for Speedy Trials Act, 1987. The petitioners thereupon filed Writ Petition No.3903 of 1989 in this Court challenging the notification whereby the trial of the case was entrusted to the Special Court on various grounds inter alia vires of the law which was admitted to regular hearing.

Later on, however, as the Special Courts for Speedy Trials Ordinance/Act lapsed, the Courts constituted thereunder ceased to function.

3. The case against the petitioner was then taken up for hearing by the Additional Sessions Judge, Gujranwala who vide his order dated 29th May, 1990 observed that according to the contents of the F.I.R. As also report under section 173 of the Cr.P.C. Two of the accused namely Ghulam Mustafa and Azhar were armed with Klashnikov and mauser respectively and as the offences under sections 302, 307, P.P.C. Have alleged to have been committed in combination with offences under sections 8 and 9 of the West Pakistan Arms Ordinance, 1965 by automatic and semi-automatic weapons, the Special Court (Suppression of Terrorist Activities) constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975 as amended had exclusive jurisdiction to try the case. The file of the case was consequently sent to the learned District Judge, Gujranwala for onward transmission to the Court concerned.

4. When the cognizance of the case was taken by the Special Court (Suppression of Terrorist Activities) Gujranwala, the petitioners filed an application objecting to the jurisdiction of the Special Court to try the same on the ground that Klashnikov was never used during the occurrence nor was any such weapon recovered at the instance of any of the accused. This objection having been repelled by the Special Court on 12th February, 1991; the petitioners have now filed this Constitutional petition.

5. As regards the vires of the amendment made by different Ordinances in the Suppression of Terrorist Activities (Special Courts) Act, 1975 suffice it to say that the Ordinances in question have since been replaced by the Suppression of Terrorist Activities (Special Courts) (Amendment) Act, 1990, section 5 of which makes the Act retrospectively applicable with effect from 13th October, 1989. A Full Bench of this Court has, in W.P. No.5196 of 1990 in Liaqat Pervaiz Khan v. Government of Punjab and others already held that it was open to the Legislature to have given retrospective effect to the Amending Ordinance and no valid objection can be taken in this behalf. The offence, in the present case, was allegedly committed on 1st of December, 1988 and therefore, the Amending Act clearly brings the case of the petitioners within the ambit of Suppression of Terrorist Activities (Special Courts) Act, 1975.

6. Confronted with this situation the learned counsel for the petitioner has raised the following two contentions:--

(i) That as no Klashnikov was recovered from the petitioners, the case cannot be tried by the Special Court.

(ii) That the prosecution was mala fide.

7. We do not find any merit in either of the contentions of the learned counsel. It is provided by section 4 of the Suppression of Terrorist Activities (Special Courts) Act, 1975, that the Special Court constituted under the Act shall have the exclusive jurisdiction to try the offences mentioned in the Schedule. The relevant portions of the Schedule as amended by the Suppression of Terrorist Activities (Special Courts) (Amendment) Act, 1990 are paras. (a), (ii)(a), (c) which are reproduced hereunder:-- "(a) Any offence punishable under any of the following sections of the Pakistan Penal Code, 1860 (XLV of 1860), namely: --- (ii)(a) section 302 or section 307, if committed in the course of the same transaction in which an offence---specified in this paragraph or paragraphs (b) and (c) is committed, or in addition to or in combination with such offence.

(c) any offence punishable under the Arms Act, 1978 (XI of 1878), or any offence punishable under any of the following sections of the West Pakistan Arms Ordinance, 1965 (West Pakistan Ordinance NOXX of 1965), namely sections 8, 9 and 10 if committed in respect of a cannon, grenade, bomb or rocket, or a light or heavy automatic or semi automatic weapon such as Klashnikov, a G-III rifle or any other type of assault rifle.

8. There is no dispute that according to the allegations contained in the F.I.R. As also the report under section 173 of the Cr.P.C. One of the accused had allegedly used Klashnikov during the commission of the offence. That being so, the case clearly falls within the mischief of the above reproduced paras of the Schedule. The argument-of the learned counsel that as Klashnikov was hot recovered and that none of the petitioners was arrested' has hardly any relevance. The jurisdiction of the Court is to be determined on the basis of the allegations contained in F.I.R. And the case set up by the prosecution. Toe truthfulness or otherwise of the allegations can only be determined at the time of trial after recording evidence. Moreover mere fact that the Klashnikov had not been recovered can hardly justify the conclusion that it was not at all used.

9. As regards the other contention of the learned counsel that the prosecution is mala fide we suffice by observing that the particulars of the mala fide have not been stated in the petition nor any proof in support thereof is available. We do not wish to comment any further on this aspect of the matter lest prejudice be caused to the case of the petitioners before the trial Court.

For the reasons aforesaid we do not find any merit in this petition. It is dismissed with no order as to costs.

N.H.Q./A-212/L