SULEMAN Versus STATE

CH. MUHAMMAD NASIM, J:‑‑ This appeal is directed against the judgment, dated 10‑7‑1993 passed by Mr. BA. Fakhri, Judge, Punjab Special Court No. VIII, under the Suppression of Terrorist Activities (Special Courts) Act, 1975, D.G. Khan Division, whereby he convicted Suleman default of its payment to further undergo R.I. for a period of 2 years under section 9 read with section 13 of the Arms Ordinance, 1965. The benefit of section 382‑B, Cr.P.C. was also allowed to the appellant.

2. The facts giving rise to this appeal are that on 18‑3‑1992 at about 7‑30 a.m. within the area of Mauza Harand Gurakana Waziry, District Rajanpuc, Suleman appellant was found in possession of .303 bore bullets Exh.P2/1‑25 which were taken into possession vide memo. Exh. PA attested by Iftikhar Ahmad, Head Constable P.W.1 and Fayyaz Ahmad, Constable P.W.2. The appellant failed to produce any valid arms licence for the possession of the abovesaid weapons. Muhammad Moosa, A.S.I. (not produced due to his death) sent complaint Exh. PB to Police Station Lal Garh, Tehsil Jampur, District Rajanpur where formal F.I.R. Exh.PB/1 was prepared. After necessary investigation the challan was submitted.

3. Suleman appellant was charged under section 9 read with section 13 of the Arms Ordinance, 1965 who pleaded not guilty thereto. The P.Ws. appeared in the witness‑box and supported the prosecution case. When examined under section 342, Cr.P.C. the appellant termed the said recovery as false. He did not claim the recovered weapons. Thereafter the appellant was convicted as narrated above. Hence this appeal which has been resisted by the State.

4. We have heard the learned counsel for the appellant as well as learned State Counsel and gone through the record before us.

5. The main contention of the learned counsel for the appellant is that the rifle .303 bore is not included in the scheduled offences so as to confer the jurisdiction upon the Judge, Punjab Special Court No. VIII under the Suppression of Terrorist Activities (Special Courts) Act, 1975. In this respect he has relied upon the ruling published as Bakhtiar Ahmad v. The State (1991 P Cr. L J 2398 (Lahore)). Learned State Counsel has argued that the "assault rifle" has been included in the scheduled offences of the relevant Act and for that matter the trial Court had the jurisdiction to hold the trial and to convict the appellant. According to him, the amendment in the matter has been effected through Ordinance No. I of 1990 promulgated on 17‑3‑1990 but made operative with retrospective effect with the date 7‑11‑1988. The amendment has been considered in the aforesaid ruling by the Division Bench of this Court and thereafter it is held that 303 bore rifle is not included in the scheduled offences. This being the position, learned counsel for the appellant has raised the correct point that the trial Court had no jurisdiction to hold the trial. In this view of the matter the trial of the appellant before the learned Judge Special Court being coram non judice, this appeal must succeed. The conviction and sentence passed upon the appellant are, therefore, set aside. He shall be released forthwith if not required to be detained in any other case. It is, however, held that the State will be within its rights to submit challan in the Court of competent jurisdiction for his trial in accordance with law.

N.H.Q./S‑701/L ???????????????????????????????????????????????????????????????????????????????? Appeal accepted.