THE STATE vs BAKHTIAR AHMAD

1. ' MUHAMMAD RAFIQ TARAR, J.---The above two appeals are being disposed of through this judgment. These are directed against the judgment of the learned Division Bench of the Lahore High Court dated 24-11-1990 whereby appeals of the respondents against their conviction under section 13 of the West Pakistan Arms Ordinance, 1965 recorded by the Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975 were allowed holding the trial before the Special Court to be coram non judice with the observation that the State "would be well within its rights to submit challans in the competent Courts (of the Magistrates) for their trials in accordance with law". The leave grant order reads as under:-- "Leave to appeal has been sought to seek interpretation of the words and expression 'automatic or semi-automatic weapon' such as Kalashinikov, G-3 rifle or any other type of assent rifle used in the Suppression of Terrorist Activities (Special Courts Act). 1975 as amended.

2. ' According to learned Advocate-General the words automatic and semi-automatic weapon signify any weapon which is automatic or semi-automatic. The High Court did not agree with this argument. It has been observed in the impugned judgment as follows:-- ' 'We may also point out and observe that mauser as such is not a weapon but is the name of the manufacturer (from Germany) of the pistols and revolvers'.

3. ' Earlier it was observed as follows:-- "Learned Additional Advocate-General drew the attention of the Court to the fact that the words 'automatic or semi-automatic weapon' in section 13-A were followed by the words 'such as klashinikov, a G-III rifle or any other type of assault rifle' to build up the argument that the words 'such as' were illustrative and not exhaustive and referred to any type of 'automatic or semi- automatic' weapon. The Mauser, according to him, are automatic or semiautomatic pistol or revolver and thus would also be covered under section 13-A. The offences with respect to these would, therefore, fall in paragraph (c) to the Schedule of Act of 1975 and thus exclusively triable by the Courts constituted under the Act. Of course words 'such as' are illustrative but while visualizing other weapons/arms of the category of kalashinikov, a G-III rifle or any other type of assault rifle, the principle of ejusdem generis is to be kept in view. A weapon which is not automatic or semi- automatic and not a rifle of the kind of Klashinikov, a G-III or other assault rifle cannot be considered to be covered by section 13-A. Had the intention of the Legislature been to bring all automatic or sime-automatic weapons under its preview then its portion 'Whoever sells or keeps, offers or exposes for sale a cannon, grenade, bomb, rocket or light or heavy automatic or semi- automatic weapon, 'would have sufficed with no need to continue with the words 'such as Klashinikov, a G-III rifle or any other type of assault rifle'. And finally a revolver or a pistol could well have also been added in the section to make it all comprehensive.'

4. ' Ultimately it was held that the subject-matter in this case was tried in a wrong forum. Accordingly, 'the trials of the appellants before the learned Judge Special Courts being coram non judice the appeals must succeed'. However, it was left open to the State to submit the challan in the competent Court.

5. ' The learned Advocate-General has contended that the language used in the Statute is indicative of the fact that the capacity of the weapon automatic or semi-automatic and its type no doubt are to be kept in mind but its shape and structure such as the examples given in the Statute will also have to be kept in mind in order to see the awe and terror intended to be created by its user as well as felt by the victim. The weapons shown in Court show that while 3 Mauser pistols automatic/semi-automatic are 11 inches long each (from the hammer to the end of the barrel) the M.P-5 automatic rifle has similar 15 inches length and that of A.U.G. Similar rifle is 13 inches. Thus, all the three types being automatic (except that the latter are called rifles and the former pistols) their use and effect, prima facie, can be considered as similar. Thus, he argued that the small pistols even if automatic and semi-automatic, although going up to the length of 7 inches, one of which was seen, could be treated as ordinary pistols and excluded for the present purpose: but, the Mauser pistols in question, while being automatic and semi-automatic, are also such as the rifles mentioned in the Statute.

6. ' The questions raised require examination. Leave to appeal is granted in both the petitions.

7. ' Bailable warrants shall issue for the appearance of the respondents/acquitted accused. The appeal shall be heard at Lahore as an emergent matter on account of the public importance of the questions involved with regard to the scope of the jurisdiction of a Court."

8. ' The weapon recovered from Najam-ul-Hassan respondent was .32 bore pistol and that from Bakhtiar Ahmed respondent was .30 bore pistol both described in the F.I.Rs, as Mausers.

2. The learned Advocate-General has not been able to persuade us to agree with the submission that the fire-arms recovered from the respondents fall within the category of weapons mentioned in paragraph (c) of the Schedule to the Suppression of Terrorist Activities (Special Courts) Act, 1975 as amended. It was rightly observed by the High Court that "Masuer as such is not a weapon but is the name of the manufacturer (from Germany) of the pistols and revolvers". Masuer pistol is a type of automatic pistol made by Mauser of Germany (Gupta's Ballistic Fire-Arms and Jurisprudence referred). The weapons allegedly recovered in these cases were not the product of Mauser but were a local production. According to the F.I.R. The word 'Pak Made' was inscribed on the body of the fire-arm recovered from Najam-ul-Hassan respondent and 'Made in Pakistan' on the barrel of the weapon recovered from Bakhtiar Ahmed respondent.

9. ' After hearing the learned Advocate-General we do not feel persuaded to interfere with the finding that the pistols allegedly recovered from the respondents did not fall within the category of the weapons necessitating trial exclusively by the Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975. Consequently both the appeals are dismissed.