BILAL HUSSAIN vs THE STATE

ORDER

' This is an application under section 561-A, Cr.P.C. The prosecution case is that the petitioner and his co-accused were reported against by Muhammad Ali under section 148/307/365/149, P.P.C. On the allegations that on 30-1-1991 they while armed with automatic weapons such as sten-gun and Kalashnikov resorted to firing and kidnapped Dilnawaz Jaffari and Jawad. As a result of the firing made by the accused Aamar Malik P.W. Was injured.

2. After investigation the challan was submitted in the Special Court for Suppression of Terrorist Activities, Lahore. The petitioner moved an application under section 249-A, Cr.P.C. For their acquittal on the ground that since no firearm or empty had been recovered, the case was not triable by the Special Court. The learned Judge, Special Court dismissed the application on 2-3- 1991 on the ground that perusal of the F.I.R. Showed that Kalashnikov was alleged to have been used in the commission of the offence. According to him the application was premature. Hence this petition.

3. It is stated that the offence under section 307, P.P.C. Is not triable by the Special Court because no Kalashnikov was recovered from the petitioner.

' The amended schedule to the Suppression of Terrorist Activities Act, 1975 provides that offence under section 307, P.P.C. Shall be triable by the Special Court if committed in the course of same transaction in which an offence specified in paragraphs (B C) is committed or in combination with such offence. Paragraph C is as follows:-- "Any offence punishable under the Arms Act, 1878 (XI of 1878), or any offence punishable under any of the following sections of the West Pakistan Arms Ordinance, 1965 (West Pakistan Ordinance No,XX of 1965), namely, sections 8, 9 and 10, if committed in respect of a cannon, grenade, bomb or rocket or a light or heavy automatic or semi-automatic weapon such as a Kalashnikov, a G-III rifle or any other type of assault rifle."

' Section 8 of the West Pakistan Arms Ordinance, 1965 provides that no person shall go armed with any arms except under a licence and to the extent and in the manner as permitted thereby. This contravention is punishable under section 13. It is triable by the Special Court if committed in respect of Kalashnikov, A G-III rifle or any other type of assault rifle.

4. In the present case there is an allegation against the petitioner of going armed with an unlicensed Kalashnikov for the commission of an offence under section 307, P.P.C. The intention of the law-maker does not appear to be that a case would be triable by the Special Court only if there was recovery of Kalashnikov or automatic weapon alleged to have been used in the occurrence.

Section 8 of the West Pakistan Arms Ordinance, 1965 imposes a prohibition on going armed without licence. This offence, if committed, in combination with an offence under section 307, P.P.C. Is triable exclusively by the Special Court under section 4 of Act, 15 of 1975.

' In this view of the matter no exception can be taken to the trial of the case by the Special Court. In consequence the petition is dismissed.