ROSHAN ALI Versus THE STATE

1. The present appeal is directed against the judgment, dated 1-2-2003 passed by the learned Sessions Judge, Larkana in Sessions Case No 422 of 2002 by which the learned Judge had convicted the appellant under section 13-D of West Pakistan Arms Ordinance, 1965 (hereinafter referred to as Ordinance 1965) and sentenced him to suffer R.I. for five years with benefit of section 382-B, Cr.P.C.

2. The facts giving rise to the present-appeal are that on 8-9-2002, the complainant S.H.O. Ghulam Nabi of Police Station, Ketty Mumtaz conducted Nakabandi at Burira Patan. At about sunset time a person was seen coming armed with Klashnikov. He was asked to surrender but he tried to escape. He was apprehended. On enquiries that person disclosed his name as Roshan Ali, the present appellant. The complainant secured Klashnikov from his possession which was loaded with 12 live bullets. The complainant inquired about the licence of Klashnikov but the appellant was not possessing the same. Hence he was arrested and such Mashirnama was prepared in presence of HC Imdad Ali, A.S.I. Nasir Ahmed. The appellant and the property, were brought to the police station where the complainant lodged the F.I.R. After completing the investigation, the appellant was challaned in the Court.

3. On 5-11-2002 a charge under section 13-D of Ordinance 1965 was framed against the appellant but he pleaded not guilty. In support of the case, the prosecution examined P.W.1, A.S.I. Nisar Ahmed and complainant S.H.O. Ghulam Nabi Korai, who gave the same details of the incident as mentioned above. The appellant in his statement recorded under section 342, Cr.P.C. denied all the allegations of the prosecution but claimed to be innocent. He did not examine himself on oath or lead any evidence in his defence. After considering the material-available on record, the learned trial Judge convicted the appellant as mentioned above under the impugned judgment. The appellant was dissatisfied with the said judgment therefore he has preferred the appeal.

4. I have heard the appellant in person, Assistant Advocate- General and with his assistance perused the record of this case very carefully.

5. The appellant has stated that he has been involved in, this case under the directions of Wadero Altaf Hussain; that he was arrested from Bahrani; that nothing was secured from his possession; that he is neither criminal nor has any connection with criminals but he is innocent and law abiding person and has been falsely involved in this case.

6. On the other hand learned Assistant Advocate-General has stated that the case is based upon the ocular testimony of two witnesses who have fully supported the prosecution case and implicated the present appellant, therefore, the prosecution have proved the case against the appellant.

7. I have given due consideration to the arguments and have gone through the evidence available on the record.

8. The appeal was also admitted to consider a question; whether Sessions Court had jurisdiction to try the case after the repeal of Suppression of Terrorist Activity Act, 1975? (S.T.A. Act). On this point learned Assistant Advocate-General has stated that after the repeal of S.T.A, Act the Sessions Court has jurisdiction to try the case involving klashnikov and its ammunitions in view of section 14-A of Ordinance, 1965.

9. The cases of recovery of klashnikov and its ammunitions were scheduled offences of S.T.A. Act, therefore, they were being tried by the Special Judge, S.T.A. The said Act has been repealed vide Ordinance XXXIX of 2001 promulgated on 14-8-2001. As such after the repeal of said Act we will fall back upon Cr.P.C. and Ordinance 1965.

10. The jurisdiction of the Courts to try cases under Ordinance, 1965 has been given under section 14-A of Ordinance 1965. The said section reads as under:---

11. "14-A. Certain offences triable by Magistrate .--- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898), an offence punishable under section 13 or section 14 shall unless it has been committed in respect of any of the arms, ammunition or military stores referred to in the proviso to the said section 13, be triable by a Magistrate of the first class".

12. A perusal of said section reveals that cases of all kinds of arms and ammunition punishable under section 13 and 14 of the Ordinance 1965 are triable by the Courts of Magistrate except the cases involving arms and ammunitions mentioned in proviso to section 13 of Ordinance 1965. There ` are two provisos to section 13 which are as under:---

13. Penalty for breach of sections 4, 5, 8 to 11 ---(Subject to section 13-A; whoever) commits any of the following offences, namely:---

(a) ----------------------------------------------------------------------

(b) ----------------------------------------------------------------------

(c) ----------------------------------------------------------------------

(d) Goes armed in contravention of the provision of section 8;

(e) ----------------------------------------------------------------------

(f) ----------------------------------------------------------------------

(g) ----------------------------------------------------------------------

(h) ----------------------------------------------------------------------

(i) ---------------------------------------------------------------------- shall be punished with imprisonment for a term which may extend to (seven) 7 years, or with fine or with both;

13. (Proviso *****)

14. (Explanation *)

15. "Provided that the punishment for an offence committed in respect of any;

(a) cannon, grenade, bomb or rocket; or

(b) light or heavy automatic weapon, rife of 303 bore or over, musket of 410 bore or over or pistol or revolver of 441 bore or over or ammunition which can be fired from such weapon, rifle musket, pistol or revolver, shall be imprisonment for a term which is not less than three years."

16. "Provided that the punishment for an offence committed in respect of any rifle or 303 bore or over, musket of 410 bore or over, pistol or revolver of 441 bore or over or ammunition which can be fired from such musket pistol or revolver, shall lie imprisonment for a term which is not less then three years."

17. A perusal of above provisions reveals that apart from other kinds of arms and ammunitions, automatic, semi automatic weapons and their ammunitions are covered by the above provisos. As such the cases of arms and ammunitions mentioned in the provisos to section 13 of Ordinance 1965 are not triable by the Magistrates as the same have been specifically excluded from their jurisdiction. No Court has been mentioned in the Ordinance, 1965 for trial of such cases, as such we will fall back upon Cr.P.C. Section 29, Cr.P.C. deals with the trial of cases of offence under other laws. It reads as under:

29. Offences under other laws. --- (1) Subject to the other provisions of this Code, any offence under any other law shall when any Court is mentioned in this behalf in such law, be tried by such Court.

(2) When no Court is so mentioned, it may be tried by the High Court or subject 'to as aforesaid by any Court constituted under this Code by which such offences shown in the eighth column of the second schedule to be triable [.] colon subs. By full stop, by Ordinance XXXVII of 2001 w. e. f. 14-8-2001.

18. From the perusal of subsection (1) of section 29, Cr.P.C. it is clear that if a Court is nominated in the other laws to try cases, then that Court alone has jurisdiction to try such cases, but it, has been made subject to the other provisions of the Cr.P.C. Whereas subsection (2) reveals that if no Court is mentioned in the other laws to try cases, then such cases may be tried by the High Court or subject to other provisions of Cr.P.C. by any Court constituted under the Cr.P.C. by which such offences have been shown triable in the eighth column of the second schedule attached to the Cr.P.C.

19. A perusal of second schedule, in respect of "offences against other laws" attached to the Cr.P.C. shows that if C punishment of such offence is for three years and upwards but does not exceed seven years etc. then it is triable by the First Class Magistrate. If the offence is punishable with death, imprisonment of life, or imprisonment exceeding seven years etc. then it will be triable by the Court of Session.

20. In the Ordinance 1965, no Court has been mentioned for the trial of cases involving arms and ammunitions mentioned in the provisos to section 13 of the Ordinance 1965. The sentence under section 13 of Ordinance, 1965 is seven years. As such by virtue of above mentioned second schedule of Cr.P.C. the said offence is triable by the Magistrate of First Class and Court of Session has no jurisdiction to try such, offence as its punishment does not exceed seven years. But section 14-A of Ordinance, 1965 specifically bars the jurisdiction of Magistrate to try such cases. Thus there is conflict between Cr.P.C. and Ordinance, 1965 on the above subject. Section 14-A Ordinance, 1965 starts with "Notwithstanding anything contained-in the Code of Criminal Procedure, 1898 (Act V of 1885)". These words are very significant which means that the provisions of section 14-A of Ordinance, 1965, will override the provisions of Cr.P.C. on the above subject, as such section 29(2) of Cr.P.C. is of no help to determine the above question. Furthermore it is well settled principle of law that when there is conflict-between general and special law then the provisions of special law would prevail. It is pointed out that Cr.P.C. is a general law whereas Ordinance, 1965 is a special enactment. Thus the provisions of section 14-A of the Ordinance, 1965 would prevail upon the provisions of section 29(2), Cr.P.C. Under section 14-A of Ordinance, 1965 a bar has been created upon the Magistrate to try such cases, therefore, such bar will continue to operate. Hence the Magistrate has no jurisdiction to try such cases.

21. Apart from above position, a perusal of section 29, Cr.P.C. shows that its both subsections have been made subject to the other provisions of Cr.P.C. Therefore, we have to take benefit from the other provisions of Cr.P.C. For the purpose of deciding the question in hand. Sections 6 and 31 Cr.P.C. are relevant which are as under:---

22. "6. Classes of Criminal Courts and Magistrates:

(1) Besides the High Courts and the Courts constituted under any law other than this Code for the time being in force, there shall be two classes of Criminal Courts in Pakistan, namely:

(i) Courts of Session;

(ii) Courts of Magistrate.

(2) There shall be the following classes of Magistrate, namely:

(i) Magistrate of the first class.

(ii) Magistrate of the second class; and

(iii) Magistrates of the third class.

31. Sentences which High Courts and Sessions Judges may pass .---(1) A High Court may pass any sentence authorized by law.

(2) A Sessions Judge or Additional Sessions Judge may pass any "sentence authorized by law; but any sentence of death passed by any such Judge shall be subject to confirmation by the High Court.

(3) An Assistant Sessions Judge may pass any sentence authorized by law except a sentence of death or of (imprisonment for a term exceeding seven years)."

23. A bare reading of section 6 reveals that apart from High Court and Courts constituted under other laws there are only two Courts viz. Courts of Session and Courts of Magistrate. No Court has been created under Ordinance, 1965 to try the cases of arms and ammunitions mentioned in the provisos to section 13 of Ordinance, 1965. Under section 14-A of the Ordinance, 1965 the Court of Magistrate is barred from trying such cases, as such we are left with only one Court i.e. Court of Session. The said Court is competent to pass the sentence mentioned under section 13 of Ordinance, 1965 in view of section 31, Cr.P.C. Thus the Court of Session has jurisdiction to try such cases.

24. In the present case klashnikov and its ammunitions were secured. The K.K. is an automatic weapon which falls under the proviso to section 13 of Ordinance, 1965, therefore, the Court of Session had jurisdiction to try the case. The above question is answered that Court of Session had jurisdiction to try the case.

25. On merits of the case, the case of prosecution is based upon the evidence of two witnesses viz. Mashir A.S.-I. Nisar Ahmed and complainant S.H.O. Ghulam Nabi Korai. They have categorically stated that on 8-9-2002 during Nakabandi the present appellant was found coming armed, with klashnikov. He was apprehended and from his possession klashnikov containing 12 live bullets were secured. The appellant could not produce the licence, therefore, he was arrested under the Mashirnama. There are no contradictions, discrepancies or omissions in the evidence. The witnesses were cross-examined but nothing came on record to discredit their evidence. I also do not find any reason to disbelieve the evidence of two witnesses. As such the prosecution have proved the case against the appellant. The appellant has not taken any defence in his statement recorded under section 342, Cr.P.C. nor led any evidence.

26. After considering the material available on record. I am of the considered view that the prosecution have proved the case against the appellant. As such the appellant was rightly convicted by the trial Court. The appeal is dismissed.

27. H.B.T./R-104/R Appeal dismissed.