NAWAZ ALI and others vs THE STATE

ORDER

1. ' During the course of arguments, on bail application, it transpired that the Kalashnikov was allegedly used in the commission of offence. Challan was submitted in Special Court, Suppression of Terrorist Activities, in the first instance but subsequently it was returned to the police concerned for submitting it in the ordinary Court of law as the Kalashnikov used in the offence was not recovered. The case was sent up for trial in the Court of 1st Additional Sessions Judge, Ghotki. The mere use of weapon of prohibited bore is sufficient to attract the jurisdiction of Special Court. The reference is made to the case of Allah Din and 18 others v. The State and another 1994 SCM R 717 wherein their Lordships have held 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.

2. 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.

3. ' 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 eye-witnesses and on our query whether eye-witnesses have supported the allegations in F.I.R. About use of Kalashnikov 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."

4. ' In the case of Azhar Hussain and others v. Government of Punjab and others 1992 PCr.LJ 2308, their Lordships have held as follows:-- ' "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 Kalashnikov 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 Kalashnikov was not 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. The truthfulness or otherwise of the allegations can only be determined at the time of trial after recording evidence. Moreover, mere fact that the Kalashnikov had not been recovered, can hardly justify the conclusion that it was not at all used."

5. ' The same view was taken by Division Bench of this Court in the case of Muhammad Shareef v. The State 1992 PCr.LJ 1219.

6. ' The facts of case Jehangir v. The State and 4 others 1999 PCr.LJ 476 are distinguishable and have no relevance to the facts of instant case. The point involved in the case is resolved by the apex Court in the case of Allah Din and 18 others v. The State and another (supra). It needs no further interpretation. The trial Court is directed to return the case papers to concerned police for submission of challan in Special Court, Suppression of Terrorist Activities.

7. ' In view of the abovesaid legal point, the bail application stands dismissed.