MALIK HAQ NAWAZ, J.---The appellant was booked for the offence under section 13 A.O, 3/4 Foreigners Act read with sections 6/7 ATA vide FIR No. 2/16 registered at Police Station Sust.
2. The brief facts of the case are narrated in the judgment handed down by the Trial Judge ATC No.1 Gilgit, which are reproduced as under:-- "Briefly stated the facts of the case are that the SIP Rajab Ali, SHO Police station Sust, District Hunza has registered FIR No. 07/2016, on 24.05.2016 under section 13 A.O, 3/4 Foreigners Act, and sections 6/7 of the Anti-Terrorism Act, 1997 on the murasila submitted by IP Sultan Hamid Hussain, Incharge KSF Dhee where in it has been stated that Today on 24-05-2016 at 1705 hours SIP wireless set that a taxi bearing No. HNZ-946 of driver Sajjad s/o Shams Ali r/o Garcha Sost was booked by a Chinese to Khunjerab. After return from the top, the Chinese got down from the vehicle near the Met Tower on the pretext of photography. Having waited for quite some time when the said Chinese did not return, the matter about the foreigner was reported to Koksal checkpost on which UP/HC Sharif-ud- Din, Constables Imtiaz Ali, Ibrar Hussain, Syed Rahim-ud-Din, Sharafat Hussain were sent to the Border area in the order to search the said foreigner. 1 along with ASI Murad Khan and other Police officials proceeded towards Khunjerab in Government Datson which was driven by Driver Ijlal Hussain. As soon as we reached at Zero Point barrier, UP/HC Sharif-udDin and other Police officials brought the Chinese there after arresting him for being in suspicious condition near the Khunjerab Border. During search of the bag of the said accused, four 9mm Pistols bearing No. T0620-10F00331 silver color made, in Turkey(ii)T 0620-10F00330 black color, Turkey made, (iii) BER216348 black color (silver body) made in Italy and (iv) BER 216148 black color, and four spare magazines were recovered. On inquiry about the license, the accused replied that the weapons are un-licensed.
Furthermore, 200 live rounds 9mm were recovered from 4 boxes, one passport in which the name of foreigner was written as Wang Jian Qiu Passport No. E 48997648 and Visa No. V-9163/2016, date of issue 10.04.2016 and date of arrival in Pakistan is mentioned as 13/05/2016. During further search of bag of the accused Rupees 8010 Pakistani Currency, 634 Yuan, 5 Mochin, Chinese Currency, 12 NO. small size battery, one telescope, one map in Chinese language, one LG Mobile No. CE-0168, one Nokia Mobile, 2 Nos. Compass, different cards, medicine and some articles/items of personal usage were recovered which have been taken into possession of the Police in presence of PWs.
From the looks of him, there is strong probability of involvement of accused with a terrorist group and having terrorist intentions, but due to the timely and successful operation by the Police, the accused could not succeed in his accomplishing his condemned goals. This act of the accused falls within the meaning of spreading terrorism, keeping number of unlicensed weapons and violation of the prevailing laws of the land. I have come to the Police Station along with the arrested foreigner, recovered weapons and ammunition and other articles owned by the accused.
Requested that legal action be taken against the accused."
3. After completion of the investigation, the accused was committed to judicial custody and challan of the case was submitted in Anti-Terrorism Court. The accused was supplied copies of necessary documents under section 265-(C), Cr.P.C., on 01.06.2016 and the case was fixed for framing of charge on 07.06.2016. On 07.06.2016 the charge was framed in English as well as in Chinese language, and at the time of framing of charge, the accused pleaded "guilty" and showed reluctance to produce any defense witness. A show-cause notice as per the spirit of section 265-E, Cr.P.C. was served upon the accused. The show-cause notice was also in English as well as in Chinese language, which is as under:-- "Whereas, you accused Wang Jian Qiu son of Wan Cai Yun passport No. E 48997648 resident of Chira was arrested by the local Police on 24.05.2016 at about 1705 hours at Khunjerab Top, and during search of your bag recovered 4 (four) 9mm pistols bearing No. T0620-10F00331 silver color made in Turkey(ii)T 0620-10F 00330 black color, Turkey made, (iii) BER216348 black color ( Silver body) made in Italy and (iv) BER 216148 black color, four spare magazines, 200 live cartridges of 9mm, one passport E 48997648, Rupees 8010 Pakistani currency, 634 Yuan Chinese currency, 2 No. small size battery, one telescope, one map in Chinese language, one LG Mobile No. CE-0168, one Nokia Mobile, 2 Nos. Compass, different cards, medicine and some articles/items of personal usage and you accused could not produce any valid license for the said recovered weapons, and whereas, you accused ,have pleaded guilty during framing of the charge today on 07.06.2016, therefore, you are hereby served with this notice to show cause as to why not you be convicted/punished under sections 3/14 Foreigners Act, section 13 AO and sections 6/7 of the Anti- Terrorism Act, 1997. You are directed to submit your written reply on 08.06.2016."
4. The above mentioned show-cause notice was served upon accused Wang Jian Qiu in the open Court. The accused submitted his reply to the show-cause notice on 08.06.2016, which is reproduced as under:-- "Subject: Written reply of Show-Cause Notice dated 07.06.2016 issued by this Court against the accused Wang Jian Qiu (me)
"That I understand and read the Show-Cause Notice in English and China language and 1 agreed with the show-cause notice received by me on 07.06.2016 through this Court and I request from this Hon'ble Court to take lenient view against me."
5. A separate statement of accused/appellant was also recorded which is as under:-- "STATEMENT OF WANG JIAN QIU S/O WAN CAI YUN PASSPORT NO. E 48997648 RESIDENT OF CHINA"
"Stated that I receive the show-cause notice yesterday issued by this Court in English as well as in Chinese. I read over the show-cause notice and I agree to its contents. The four 9mm pistols and 200 live rounds and other articles produced today before the Court in sealed condition and shown to me after breaking the seal, are the same which were recovered from my possession by the Police at Khunjerab Top near China Border."
6. The learned Trial Court then convicted the accused/appellant and awarded him the punishment on two Counts as per Para 18 of the Judgment, which is as under:--
18. "keeping in view the above discussions, I hold that the offences of the instant case are fully proved against the accused Wang Jian Qiu beyond any shadow of doubt. The accused was voluntarily confessed his guilt before me in the open Court in presence of his defence .counsel as well as Public Prosecutor for the State. Hence 1 convict accused Wang Jian Qiu under section 7(h) of the Anti-Terrorism Act, 1997 and sentenced him to undergo imprisonment for 5 years. Accused Wang Jian Qiu is also hereby convicted under section 13 Arms Ordinance, 1965 and sentenced him to undergo imprisonment for 4 years."
7. The learned counsel for the appellant submitted that the judgment of the trial Court is not based on any cogent evidence and the trial Court was lacking Jurisdiction as the offences of Arms Ordinance are not included in the schedule of Anti-Terrorism Act, 1997. The learned Counsel further submitted that the trial of the convict/appellant has been conducted in a hasty manner, which is against the concept of "fair trial". The learned counsel prays that the conviction being bad in the eyes of law be set aside in the interest of Justice.
8. The learned Dy. Advocate General defended the Judgment and stated that the accused has pleaded guilty in presence of his defence counsel as evident from the judgment of trial Court where the learned defence counsel only requested to the trial Court, to take a lenient view. The Dy.
Advocate General further stated that no appeal lies when the conviction is recorded on the admission of guilt.
9. We heard both the parties at a considerable length and perused the record. The learned counsel for the appellant were confronted with the provision of section 412, Cr.P.C. Wherein conviction recorded on admission of guilt cannot be challenged in appeal except about quantum of sentence. The learned counsel could not satisfy that they were not provided opportunity to defend the appellant. The learned counsel were asked to address their arguments on the quantum of sentence and were given sufficient time to satisfy if there is any illegally in awarding the sentence.
When an accused is brought before the Court and he pleads guilty under section 265-E, Cr.P.C., then Court shall record his plea and may in its discretion convict him, thereon, section 265-E, Cr.P.C. is reproduced as under:-- "The charge shall be read and explained to the accused, and he shall be asked whether he is guilty or has any defence to make.
(2) If the accused pleads guilty the Court shall record the plea. and may in its discretion convict him thereon."
10.It is clarified here that when an accused pleads guilty and convicted, he cannot challenge his conviction in an appeal except about the validity of sentence. Section 412, Cr.P.C. is relevant to clarify the D above view, which is as under:-- SECTION 412, Cr.P.C.
"No appeal in certain cases when accused pleads guilty. Notwithstanding anything hereinbefore contained where an accused person has pleaded guilty and has been convicted by a High Court, a Court of Session or Magistrate of the first Class on such plea, there shall be no appeal except as to the extent or legality of the sentence."
11. The contention of the learned counsel that the trial Court was lacking jurisdiction to try the case.
This specific stance of jurisdiction was not taken by the learned counsel in trial Court, rather as finds mentioned in Para 12 of the Judgment of trial Court, they conceded that there is no need to examine the PWs and requested for a lenient view. It is well settled principle of law that question of jurisdiction can be raised at any stage even during appeal but it must be supported legally/ factually, which has not been done in the case in hand. Further we are aware of the legal proposition that jurisdiction upon a Court cannot be vested by the consent of the parties but at the same time a party cannot be allowed to choose the fourm of his choice for trial of a particular case. Subsection (2)(i) of section 6 of ATA-1997 was inserted and the accused was found in possession of a huge quantity of Arms/ammunition at the Pak-China border. In these days, when the enemies of the country are plotting to disrupt the execution Plan of CPEC, the arrest of appellant on/near the crossing border was a highly "subversive act" if not a real terrorism in strict sense. Keeping of such a huge quantity of arms/ammunition shows his ill intention and if he would not have arrested before hand, it may have created a big dent in Pak-China relations and defame Pakistan at international level, in the present scenario; The Courts cannot sit in isolation and can take notice of changing taking place in the surroundings and approach of the Court must be dynamic and not static. The contention of jurisdiction is not valid and cannot be entertained.
12.What have been discussed as a matter of abundant caution, we set-aside the conviction recorded under section 7(h) of Anti-Terrorism Act, 1997, as he was apprehended before execution of his design, while the sentence of 4 years imprisonment recorded under section 13 Arms Ordinance, 1965 is maintained. The weapons (four pistols 9mm) four spare magazines and 200 rounds are confiscated in favor of State.
13.The above appeal is disposed off in the above term.