' The present appeal is directed against the judgment, dated -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.
' 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 co.Npleting the investigation, the appellant was challaned in the Court.
' 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.
' I have heard the appellant in person, Assistant Advocate-General and with his assistance perused the record of this case very carefully.
' The appellant has stated that he has been involved in this case under the directions of Wadero Altaf Hussain; that he was arrested from Balcrani; 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.
' 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.
' I have given due consideration to the arguments and have gone through the evidence available on the record.
' 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.
' 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.
' 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:--- "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".
' 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) ----------------------------------------------------------------- (0 --------------------------------------------------------------------
(g) -----------------------------------------------------------------
(h) -----------------------------------------------------------------
(i) ,. ' shall be punished with imprisonment for a term which may extend to (seven) 7 years, or with fine or with both; (Proviso ***) (Explanation ***)
' "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."
"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 be imprisonment for a term which is not less then three years."
' 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."
' 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.
' A perusal of second schedule, in respect of "offences against other laws" attached to the Cr.P.C.
Shows that if punishment of such offence is for three years and upwards but does not exceed seven yeats 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.
' 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.
' 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:--- "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)."
' 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.
' 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.
' 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 prosecutions 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.
' 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.
Appeal dismissed.
2004 P Cr, L J 371 [Federal Shariat Court] Before Ch. Ejaz Yousaf, C.J., Dr. Fida Muhammad Khan and Saeed-ur-Rehman Farrukh, JJ MUHAMMAD ARSHAD NASEEM---Appellant versus THE STATE---Respondent Criminal Appeal No, 71/I of 2003, decided on 28th October, 2003.
(a) Offence of Qazf (Enforcement of Hadd) Ordinance (VIII of 1979)--- ----S.7---Appreciation of evidence---Application wherein the allegation regarding Zina was levelled against the complainant was not exhibited at the trial and a photostat copy of the same produced before the Magistrate at inquiry stage could not have formed a basis for conviction of the accused---Trial Court.Had charged the accused under S.3 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979, which merely contained definition of "Qazf" and did not provide for penal consequences, whereas the offence of Qazf was punishable under S.7 of the said, Ordinance, therefore, Trial Court notwithstanding the fact that the complaint itself was filed under S.3 of the said Ordinance ought to have charged the accused under its S.7, if it had decided to proceed against him---Trial in the case, thus, had not been conducted in the proper manner---Impugned judgment was consequently set aside and the case was remanded to the Trial Court for its decision afresh in accordance with law. [pp. 375, 376] A, C, E & F Abdul Qayyum v. Muhammad Rafique 2001 SCM R 1651; Muhammad Azam v. Muhammad Iqbal and another PLD 1984 SC 192; Fazal Muhammad v. Mst. Chohara and others 1992 SCM R 2182; Bishwanath v. Sachhidanand AIR 1971' SC 1949; Om Prakash v. Unit Trust of India and others AIR 1983 Born. 1 and Rajwati Devi v. Joint Director.
Consolidation, Government of Bihar, Patna and others AIR 1989 Pat. 66 ref.
(b) Qanun-e-Shahadat (10 of 1984)--- ----Arts. 2(c)(ii), 72, 73 & 75---Documentary evidence, proof of---Although documents not formally admitted in evidence and available on Court's record or elsewhere may, for the purpose of elucidation of certain facts, be looked into, yet the same by no stretch of imagination can be termed or regarded as "evidence" unless proved and exhibited at the trial in accordance. With law- --Since documents do not prove themselves and truth of the contents of the documents cannot be proved by merely producing the same for inspection of the Court within the purview of Art.2(c)
(ii) of the Qanun-e-Shahadat, 1984, the document upon which a party relies must at first be placed before the Court and then be got proved by calling the witness or witnesses. [p. 375] B Abdul Qayyum v. Muhammad Rafique 2001 SCM R 1651; Muhammad Azam v. Muhammad Iqbal and another PLD 1984 SC 192; Fazal Muhammad v. Mst. Chohara and others 1992 SCM R 2182; Bishwanath v. Sachhidanand AIR 1971 SC 1949; Om Prakash v. Unit Trust of India and others AIR 1983 Born. 1 and Rajwati Devi v. Joint Director, Consolidation, Government of Bihar, Patna and others AIR 1989 Pat. 66 ref.
(c) Criminal Procedure Code (V of 1898)--S. 237---Person charged with one offence can be convicted of another-Section 237, Cr.P.C. Is an exception to the general rule that no person can be convicted for an offence for which he is not charged:- Section 237, Cr.P.C., therefore, must be construed strictly and be applied in those cases only where either the offences allegedly committed are cognate or it is doubtful as to what offence is made out of the act or acts allegedly committed by the accused. [p. 376] D Mehdi Khan Chohan for Appellant. Chaudhary Abdul Aziz for the Complainant.
Muhammad Sharif Janjua for the State. Date of hearing: 28th October, 2003.
' CH. EJAZ YOUSAF, C.J.--- This appeal is directed against the judgment, dated 25-5-1998, passed by the learned Additional Sessions Judge, Kharian whereby appellant Muhammad Arshad Naseem son of Rauldo Khan was convicted under section 7 of the Offence of Qazf (Enforcement of Hadd)
Ordinance, 1979 (hereinafter referred to as "the Ordinance") and sentenced to eighty stripes.
2. Facts lie in a small compass. Complaint was filed by one. Munawar Hussain son of Nawab Hussain in the Court of Sessions Judge, Gujrat wherein, it was alleged that the present appellant had moved an application for contempt in the Court of District and Sessions Judge, Gujrat which was though dismissed vide order, dated 22-5-1993 for non-prosecution yet, since certain allegations were levelled therein, inter alia, that the complainant had committed adultery/Zinc with the lady, namely, Mst. Arshad, therefore, his guilt be brought home by initiating proceeding under the law. After getting the matter inquired through Senior Civil Judge/Magistrate Section 30, Gujrat, within the purview of section 202,' Cr.P.C. The learned Sessions Judge summoned and charged-the appellant under section 3 of "the Ordinance" to which he pleaded not .Guilty and claimed trial.
3. At the trial, the complainant in order to prove the charge and substantiate the allegation levelled against the appellant produced only two witnesses namely, Riaz Ahmad and Tosawar Hussain besides examining himself as P.W.2. Thereafter, statement of the appellant under section 342, Cr.P.C. Was recorded. In his above statement the appellant denied the charge and pleaded innocence. He, however, got examined four witnesses in his defence and also appeared himself as his own witness in terms of section 340(2), Cr.P.C.
4. After hearing arguments of the learned counsel for the parties the learned trial Judge convicted the appellant and sentenced him to the punishment as mentioned in the opening pars hereof.
5. We have heard Mr. Mehdi Khan Chohan, Advocate, learned counsel for the appellant, Ch. Abdul Aziz, Advocate, learned counsel for the complainant, Mr. Muhammad Sharif Janjua, Advocate, learned counsel for the State and have also perused the entire record with their assistance.
6. Mr. Mehdi Khan Chohan, Advocate, learned counsel for the appellant has, at the very outset, submitted that since application dated 13-5-1993 wherein, allegation regarding Zina was allegedly levelled against the complainant, was neither exhibited, at the trial, nor was it proved in accordance with law and only a photostat copy thereof was produced before the Magistrate at inquiry stage which by no stretch of imagination can be termed as evidence, therefore, the appellant could not have been convicted for the offence, for want of proof. It is further his grievance that since the appellant was charged under section 3 of "the Ordinance", which merely lays down definition of "Qazf" and does not provide for penal consequences, therefore, he could not have been convicted and sentenced to undergo punishment of Hadd under section 7 of "the Ordinance". He has maintained that since the omissions/defects, referred to hereinabove, had greatly prejudiced the appellant in his defence, therefore, the impugned judgment may be set aside and the case be remanded to the learned trial Judge for its decision afresh.
7. Ch. Abdul Aziz, Advocate, learned counsel for the complainant though initially tried to canvass that since a copy of the application formed part of inquiry report, therefore, it was rightly taken into account by the learned trial Judge and that though the appellant was not formally charged under section 7 of "the Ordinance" yet, he, being aware of the nature of the accusation, could have been convicted for the offence, but then candidly conceded and submitted that since the application, in question, was not produced or proved on record and the charge as framed, was also not proper, therefore, he would have no objection to remand of the case. However, submitted that this being an old matter the learned trial Judge be directed to dispose the same of, expeditiously.
8. We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also perused the available record with their assistance. Admittedly, the application wherein, the allegation regarding Zina was levelled against the complainant was not exhibited, at the trial whereas, legally, the person relying on a document is under obligation to prove the same. Article 72 of the Qanun-e-Shahadat Order, 1984 (hereinafter referred to as "the Order" lays down that contents of documents may be proved either by primary or by secondary evidence whereas, Article 73 of "the Order" provides that 'primary 'evidence' means the document itself produced for inspection of the Court and it is the requirement of Article 75 of "the Order" that the document must be proved except in the cases in which secondary evidence may be given.
' Having regard to the above provisions, it may be noted here that though documents not formally admitted in evidence, and available on Court's record or elsewhere even, may, for the purpose of elucidation of certain facts, be looked into yet, the same, by no stretch of imagination, can be termed or regarded as "evidence" unless proved and exhibited, at the trial, in accordance with law.
Further, since documents do not prove themselves and truth of the contents of the documents cannot be proved by merely producing the same for inspection of the Court within the purview of Article 2(c)(ii) of the Qanun-e-Shahadat Order, 1984, therefore, the document upon which a party places its reliance must, at first, be placed before the Court and then be got proved by calling a witness/witnesses. In this view, we are fortified by the following reported judgments:-
(i) Abdul Qayyum v. Muhammad Rafique 2002 SCJ 300; (ii) Muhammad Azam v. Muhammad Iqbal and another PLD 1984 SC 192; (iii) Fazal Muhammad v. Mst. Chohara and others 1992 SCM R 2182;
(iv) Bishwanath v. Sachhidanand AIR 1971 SC 1949; (v) Om Prakash v. Unit Trust of India and others AIR 1983 Born. 1; and (vi) Rajwati Devi v. Joint Director Consolidation, Government of Bihar, Patna and others AIR 1989 Patna.
66.
' Thus, the application in question, a photostat copy whereof only, as per record, was produced before the Magistrate at inquiry stage could not have formed basis for conviction of the appellant.
9. Adverting to the next contention of the learned counsel for the appellant that since the appellant was charged under section 3 of "the Ordinance", therefore, he could not have been convicted and punished under section 7 thereof, it may be pointed out here that legally every charge must contain the specific name of offence and the law and section of the law against which the offence is said to have been committed or if no specific name is given to the offence by the law which has created it, then so much of the definition of the offence which may give notice to the accused of the matter with which he is charged and shall also contain such particulars as to the manner, time and place of the alleged offence and also the person against whom or the thing (if any) in respect whereof it was committed which may be necessary for the purpose aforesaid. Sections 221 to 223 of the Criminal Procedure Code are explicit, in this regard. It may further be noted here that every person accused of an offence or offences is required to be charged distinctly and separately for each and every offence and though as per section 237, Cr.P.C. a person charged with one offence can be convicted for another yet, application thereof is limited to the cases covered by section 236, Cr.P.C. Only. It would also be worthwhile to mention here that section 237, Cr.P.C. Is an exception to the general rule that, no person can be convicted for an offence for which, he is not charged, therefore, it must be construed strictly and be applied in those cases only where, D either the offences allegedly committed are cognate or it is doubtful as to what offence is made out of the act or acts allegedly committed by the accused.
' Since section 3 of "the Ordinance" merely contains definition of "Qazf" and does not provide for penal consequences whereas, the offence of Qazf is punishable under section 7 thereof therefore, the E learned trial Judge, notwithstanding the fact that the complaint itself was filed under section 3 of "the Ordinance", ought to have charged the appellant under section 7 of "the Ordinance" if he had decided to proceed against him.
10. Since both the learned counsel for the parties, have agreed to remand of the case and we are also convinced that trial, in the instant case, has not been conducted in the proper manner, therefore, the impugned judgment, dated 25-5-1998, passed by the learned Additional Sessions Judge, Kharian is set aside and the case is remanded to the learned trial Judge for its decision afresh, in accordance with law, within a period of six months from the receipt hereof.
' The appellant is on bail, the same shall remain intact till he is summoned by the trial Judge whereafter it shall be the discretion of the trial Court to grant him the concession or otherwise.