GHULAM SHABBIR And 37 Others vs PUNJAB SPECIAL COURT (SUPPRESSION

M. MAHBOOB AHMAD, CJ.--- This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 calls in question an order passed by the Special Court No.5, Faisalabad under the Suppression of Terrorist Activities (Special Courts) Act, 1975 on 13th of June, 1990 whereby it dismissed an application filed by the petitioners objecting to its jurisdiction to try the offences not specified in the first Schedule to the Suppression of Terrorist Activities (Special Courts) Act, 1975.

2. Briefly stated, the facts of the case are that on 23-1-1990 a case was registered against the petitioners and others vide F.I.R. No.41/90 at Police Station City Chiniot. On 21-5-1990, challan against 37 accused was presented by the police before Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975. One of the accused namely Ghulam Shabbir, petitioner filed an application on 26 May, 1990 before the Judge Special Court objecting to the assumption of jurisdiction by him on the premises that the offence with which he was charged did not fall in the Schedule to the Suppression of Terrorist Activities (Special Courts) Act, 1975.

3. The learned counsel for the petitioner in support of this petition has contended that according to section 4(2) of the Suppression of Terrorist Activities (Special Courts) Act, 1975 if during the course of trial before the Special Court the Court comes to the opinion that any of the offences which the accused is alleged to have committed is not a scheduled offence the Court shall try the accused only for those offences which arc mentioned in the schedule.

4. The learned Additional Advocate-General has, on the other hand, defended the impugned order by arguing that if during the course of one transaction different offences are committed, some ofth which are scheduled and the others non-scheduled, all the offences can be tried by the same Court as otherwise there would tire multiplicity of proceedings.

5. Having given consideration to the respective contentions raised on behalf of the parties, we are of the view that the contention of the learned counsel for the petitioner has force. Section 4 of the Suppression of Terrorist Activities (Special Courts) Act, 1975, which is the provision conferring jurisdiction on the Special Courts set up under the Suppression of Terrorist Activities (Special Courts) Act, 1975 is reproduced hereunder 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.

Provided further that the Government constituting a Special Court may, by notification in the official Gazette, direct that the special Court shall have jurisdiction to try only such persons who have committed scheduled offences as may be specified in the notification.

(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."

6. It is an undisputed and well-settled principle of law that a Special Court being creation of the Statute under which it has been set up has only such jurisdiction as is conferred by the Statute. It cannot extend its jurisdiction, beyond the scope of the law creating it. Now the four corners of the jurisdiction of the Special Court under the Suppression of Terrorist Activities (Special Courts) Act, 1975 are provided for by section 4.' Section 4(1) categorically provides for the exclusive jurisdiction of a Special Court set up under the Suppression of Terrorist Activities (Special Courts) Act, 1975 with respect to the offences which are set out in first schedule to the Suppression of Terrorist Activities (Special Courts) Act, 1975. The further clarification in this regard is contained in subsection (2) of section 4 which again in unequivocal and unambiguous terms provides that if during the trial a Special Court is of the 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 scheduled offence. The words in subsection (2) `try the accused only for such offence, if any', are of significance and (cave no room for interpretation other than the conclusion reached by us as above that the Special Court can try the accused for a scheduled offence only.

7. It may also be pertinently observed that the view which we have taken finds support from Neelam Nawaz v. State reported as PLD 1991 SC 640 and Muhammad Sharif v. The State reported as 1992 P Cr. L J 127 wherein interpreting section 4(2) of the Suppression of Terrorist Activities (Special Courts) Act. 1975, it has been held that the Special Court can try only the offences mentioned in the Schedule annexed therewith and that an offence falling outside the Schedule is not triable by the Special Court. We are surprised to see how the Special Court while delivering the impugned judgment has interpreted the aforementioned provisions of section 4 of the Suppression of Terrorist Activities (Special Courts) Act, 1975 so as to C empower it to try even a non-scheduled offence. To say the least, the aforementioned finding of the Special Court is not borne out by the language of the Statute itself nor the said Court appears to have taken notice of the judgments of the superior Courts on the proposition which were binding upon it.

8. In view of the foregoing discussion, this petition is allowed and order dated 13-6-1990 passed by the Judge Special Court, Faisalabad is quashed as being without lawful authority and of no legal effect.

9. Resultantly the case against the petitioner as regards the offence not covered by the schedule to the Suppression of Terrorist Activities (Special Courts) Act, 1975 shall be tried by the ordinary Criminal Court.

10. There will, however, be no order as to costs.

N.H.Q./G-62/K