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Initializing Secure Chambers
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Petitioner: MUHAMMAD ISMAIL ALIAS BABOO VS Respondent: THE STATE
1997 P Cr
1997 P Cr. L J 127
[Lahore]
Before Muhammad Naseem Chaudhri, J
MUHAMMAD ISMAIL alias BABOO --- Petitioner
Versus
THE STATE---Respondent
Criminal Miscellaneous No.467/B of 1995/(BWP), decided on 16th July, 1995.
Criminal Procedure Code (V of 1898)---
----S. 497---Penal Code (XLV of 1860), S.302/460/459/397---High Court (Lahore) Rules and Orders, Vol. III, Chap. 10, R.14---Bail---Klashnikov alleged to have been used in the occurrence, Sessions Court had no jurisdiction in the matter despite the fact that the Klashnikov had not been recovered during investigation---Accused had not moved the Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975 for bail and the dismissal of his bail application by Sessions Court for lack of jurisdiction could, not confer upon accused the right to move High Court for bail without first moving the said Special Court in this behalf---Bail application was dismissed by High Court accordingly.
Rana Muhammad Yaqoob for Petitioner
ORDER
The petitioner is the accused of case F.I.R. No.286, dated 21-11-1992 registered at Police Station Sadar Ahmadpur East, District Bahawalpur under section 302/460/459/397, P.P.C. According to the prosecution case on 21-11-1992 at 8-00 p.m. two accused persons whose description is mentioned in the F.I.R. took away the gold ornaments and cash amount of Rs.11,000 from the house of Mehdi Hassan uncle of Muhammad Saleem complainant. Mehdi Hassan came out of his house when both the persons opened fire at him. Many bullets hit who subsequently succumbed to his injuries. During the occurrence Karim Bakhsh was also injured due to the firing effected by the accused persons. It is mentioned in the F.I.R. that one person was armed with Klashnikov while the other was armed with carbine. Muhammad Ismail alias Babu petitioner has been arrested as one of the accused whose bail plea has been rejected by the lower Court with the reasoning that the case is to be heard by the Judge Special Court for Suppression of Terrorist Activities. Hence this petition.
2. About the jurisdiction of the lower Court to entertain the bail application I had asked the learned counsel for the petitioner to argue the matter as the klashnikov is allegedly used during the occurrence by one of the accused. According to him mere narration that the klashnikov was used during the occurrence is not enough especially when klashnikov has not been recovered. My view is that the narration of the fact that the klashnikov was used in the occurrence from which the firing was effected has to steal the eminence irrespective of the fact that the klashnikov was not recovered during the investigation. The result is that the case shall have to be heard by the Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975. This being the position the application for the grant of bail shall have to be moved before the said Special Court. According to Rule 14 Chapter 10 of High Court Rules and Orders, Volume III in the judicial hierarchy the bail application has to be filed before the Court of lowest grade. The petitioner has not moved the Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975 for his admission to bail and the dismissal of his application by the Additional Sessions Judge would not confer upon him the right to move the High Court.
3. For what has been said above, I dismiss this petition without merits. First the petitioner may proceed in accordance with law before the Court of competent jurisdiction as expressed above.
N.H.Q./M-2500/L Bail application dismissed