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Petitioner: MUHAMMAD IOBAL VS Respondent: THE STATE
1993 P Cr
1993 P Cr. L J 2493
[Lahore]
Before M. Mahboob Ahmad; CJ.,
Rashid Aziz Khan and Malik Muhammad Qayyum, JJ
MUHAMMAD IOBAL --- Petitioner
Versus
THE STATE---Respondent
Writ Petition No.3741 of 1991, decided on 26th January, 1993.
Penal Code (XLV of 1860)---
----S. 302/307/148/149---Suppression of Terrorist Activities (Special Courts) Act (XV of 1975), S.4---Constitution of Pakistan (1973), Art.199---Mere non recovery of the arm in the case cannot take away the case out of the schedule as 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---Order of Special Court sending the case registered against the accused to ordinary Criminal Court on the basis of non-recovery of the arm in question was consequently declared to be without lawful authority and of no legal effect and the case stood entrusted to Special Court for adjudication in accordance with law.
Azhar Hussain v. Government of Punjab 1992 P Cr. L J 2308 rel.
RA. Awan for Petitioner.
Irfan Qadar, AA.-G. with Muhammad Iqbal Vehniwal for the State.
Date of hearing: 26th January, 1993.
JUDGMENT
M. MAHBOOB AHMAD, CJ.--- This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 is directed against order, dated 5-3-1991 passed by the learned Judge, Special Court for Suppression of Terrorist Activities, Punjab, Lahore whereby he sent a case registered against respondents Nos.2 to 8 under section 302/307/148/149, P.P.C. with Police Station Ferozewala, District Sheikhupura on 17-12-1989 to the learned Sessions Judge, Sheikhupura for entrustment of the same to a Court exercising the ordinary criminal jurisdiction.
2. The learned counsel for the petitioner has contended that the basis of the impugned order is that the arm in question having not been recovered the case is not triable by the Judge, Special Court for Suppression of Terrorist Activities which question fell for consideration before this Court and has already been authoritatively decided by a Full Bench of this Court in Azhar Hussain v. Government of Punjab reported as 1992 P Cr. L J 2308. It has been held in the cited judgment that mere fact that the arm was not recovered cannot take away the case out of the schedule inasmuch as 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. In the context of the above submission it was urged that the impugned order is not maintainable. The learned Additional Advocate-General has supported the contention raised on behalf of the petitioner and submitted that in the presence of the Full Bench judgment, the impugned order cannot be sustained. No one has appeared to contest this petition on behalf of respondents Nos.2 to 8.
3. In view of the foregoing this petition is allowed and the impugned order, dated 5-3-1991 passed by the learned Judge, Special Court for Suppression of Terrorist Activities, Lahore Division, Lahore, is declared to be without lawful authority and of no legal effect.
4. Resultantly, the case shall stand entrusted to the Judge, Special Court No.IV, Suppression of Terrorist Activities, Lahore Division, Lahore, for adjudication in accordance with law.
There will, however, be no order as to costs.
N.H.Q./M-1152/L Writ petition allowed.