MUHAMMAD ASIF vs THE STATE

Vide F.I.R. No, 109, Police Station Daud Zai, dated 22-2-1989 it is stated that a mobile police party had on earlier information signalled Motor Car No, SW.5070 to stop at Naguman Chowk Check Post but the vehicle turned towards Charsadda and was overpowered after chase and Muhammad Asif the present accused was found in possession of a Kalashnikov rifle with charger containing five rounds besides 30 grams of Charas in his pocket and accordingly a case under section 13, Arms Ordinance and Articles 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 was registered against him. He is said to have been released on bail on charge under Articles 3/4 P.O. However, he was refused bail by the learned Judge, Special Court on charge under section 13, Arms Ordinance since the prosecution had succeeded to make out a prima facie case of going armed with unlicensed Kalashnikov rifle as recovered from his possession.

2. Now under the Suppression of Terrorist Activities (Special Courts) Act, 1975 Special Court has the exclusive jurisdiction vis-a-vis the scheduled offences and that under paragraph (c) of the unamended schedule offences punishable under sections 8, 9 and 10 of the West Pakistan Arms Ordinance, 1965 if committed in respect of a handgrenade, bomb or rocket are exclusively triable by the Special Court and that any such offence committed in respect of Kalashnikov rifle would not be triable by the Special Court. Further under the unamended provisions of section 13 of the Arms Ordinance the maximum punishment in case of going armed without licence has been prescribed as 7 years' imprisonment or fine or both and in case of such offence committed in respect of Kalashnikov rifle including shall be not less than 3 years.

3. There have been lately effected amendments in the Arms Ordinance as well as Suppression of Terrorist Activities (Special Courts) Act, 1975 by Ordinances Nos. XVI and XVII of 1988 published in the Gazette of Pakistan, Extraordinary Part I, dated 13th October, 1988. Ordinance No,XVI of 1988 has subjected the provisions of section 13 A.O. To the provisions of sections 13-A and 13-B and section 13-B has further prescribed the maximum punishment in 10 years and minimum 3 years' imprisonment and fine, in case of breach of section 8 i,e, going armed without licence of weapons inter alia Kalashnikov rifle. Ordinance No, XVII of 1988 has made corresponding amendment in paragraph (C) of the Schedule also including offences punishable under sections 13-A or 13-B of the Arms Ordinance to be exclusively triable by the Special Courts constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975. However, since the said Ordinances were promulgated by the President in exercise of his powers conferred by Article 89 of the Constitution of the Islamic Republic of Pakistan, 1973 on 13-10-1988 and the same shall stand repealed at the expiration of 4 months from their promulgation if not earlier passed by the two Houses of Parliament and assented to by the President and as such the Ordinances stand repealed on or after 13-2-1989. That being the position the learned Special Court did not continue with the jurisdiction over the case at the time of commission of the offence and the impugned order passed by him on 11-3-1989. The offence committed under section 13 A.O. Shall continue to be punishable with normal sentence of maximum 7 years and minimum 3 years' imprisonment and accordingly to fall outside the purview of the prohibition contained in subsection (1) of section 497, Cr.P.C.

3. Besides accused-petitioner was apprehended in a car with another passenger and the unlicensed Kalashnikov rifle was allegedly recovered from his possession as carried by him and the recovery as such was witnessed only by police personnel although it was a case of prearranged raid.

' In the circumstances the accused petitioner is granted bail on furnishing bonds in the sum of Rs,30,000 with two sureties each in the like amount to the satisfaction of the Illaqa/Duty Magistrate.