1. ' SALEEM AKHTAR, J.--This appeal arises from the judgment passed by the Special Court (Suppression of Terrorist Activities) Karachi, whereby the appellant has been convicted under section 13B(b) of the Pakistan Arms Ordinance 1965 and sentenced to four years' rigorous imprisonment and a fine of Rs,1,000 and in default of payment to suffer further R.I. For six months.
2. The facts are that on 27-10-1988 a police party was patrolling near Wahaj Memorial Hospital when it received information that two persons armed with fire-arms were moving about in the area. The police party apprehended the appellant and from a cloth bag which he was holding recovered a sten gun which was loaded with magazine containing four live rounds of sten gun. The recovery was made in the presence of Ghulam Sarwar and Muhammad Iqbal at about 5-30 p.m. And the F.I.R. Was lodged by the SIP Bahadur Ali at Jauharabad Police Station at about 18.55 hrs. The investigating officer obtained the finger-prints of the appellant which were sent alongwith the sten gun to the Finger Print Expert Abdul Rauf who confirmed that the finger-prints found on the sten gun are the prints of left thumb impression of the appellant. After completing the investigation the case was challaned before the Court on 7-11-1988. The learned trial Court convicted the appellant by judgment, dated 17-1-1989. In appeal filed by the appellant the case was remanded with the direction that the accused may be asked specific question with regard to his willingness to examine himself as his own witness under section 340(2), Cr.P.C. And if he is willing to do so then his evidence may be recorded accordingly. However, in case he declines then the matter may be reheard on the basis of evidence already recorded. The learned trial Court complying with the direction of the High Court has passed the impugned judgment. It may be mentioned that the appellant had refused to give any statement on oath.
3. ' The prosecution had examined four witnesses. S.I. Bahadur Ali P.W.2 was incharge of special investigation team of the Central District. On 27-10-1988 while on patrol duty alongwith police party at about 5-30 P.M. On receiving information they apprehended the appellant and another person in presence of two mashirs at Yasinabad Chowrangi. The appellant was carrying a bag which contained sten gun loaded with magazine containing four live cartridges. A mashirnama was prepared (Exh.3A) which was signed by Ghulam Sarwar and Muhammad Iqbal, the mashirs. The sten gun was put in cloth bag and sealed and sent to the police station. He then came and lodged the F.I.R. And obtained the finger-prints of the appellant. In cross-examination he stated that he picked up the mashirs from the locality on the spot who were found there. P.W.3 Muhammad Iqbal who was a mashir for the recovery has stated that after visiting his friend in the hospital while he was coming out at about 5-00 p.m. a police officer called him near Yasinabad Chowrangi where two persons including the appellant were arrested. From the cloth bag in possession of the appellant sten gun with four live cartridges in the magazine were recovered. A mashirnama was prepared and the gun was sealed in the bag. He resided 5 to 7 miles away from Wahaj Hospital. He also confirmed that the other mashir had also signed the mashirnama. The prosecution, however, examined only one mashir. Abdul Rauf P.W.4 who is a Finger Print Expert testified that the finger- print of the appellant on Exh.3D was identical with the finger print on the transparency lifted from the sten gun and such certificate was issued by him (Exh.3D-1). The appellant in his statement under section 342, Cr.P.C. Denied that the sten gun or the magazine were recovered from his possession. He stated that the police had taken his finger and thumb-impression on Exh.3-D. He further stated that he was arrested on 1710-1988 and not on 27-10-1988 and nothing was recovered from him. One Muhammad Rafiq was examined as a defence witness who stated that the appellant was known to him for 7/8 years. On 27-10-1988 at about 9 o'clock in the morning he saw the appellant being taken away on a scooter by two policemen. In cross-examination he stated that it was by chance that he happened to go on a panshop on the day of incident. He is a resident of New Karachi and Federal 'B' Area is 8/9 miles away from New Karachi. One Naeem Ahmad was examined as a Court witness. He is an Inspector in Police and stated that he' had examined the sten gun in this case and found that it contained a finger-print. He had lifted that finger-print and prepared a transparency Exh.3D-2/A. Then the transparency and the sten gun were handed over to DSP Abdul Rauf who examined the finger-print and transparency. Mr. Dewan Bashir Ahmad the learned counsel for the appellant contended that recovery of gun has not been proved. He contended that mashir for recovery is not a person of the locality and that although the Councillor of the area was available and many other persons of the locality could be obtained as mashir the police has chosen a stranger. The mashir is not a resident of the locality but his presence has been explained by the prosecution. The appellant was apprehended near a bus stop and the police had to pick up somebody as mashir. They came across Muhammad Iqbal. Except the fact that he is not a resident of the locality no other infirmity can be found in his statement. The arrest was made near a bus-stop where people frequently move about. The witness was not procured or brought by the police to witness the recovery. In such circumstances strict compliance with section 103 Cr.P.C.
4. Cannot be made a ground for rejecting the statement of a respectable Mashir. Reference can be made to Abdur Rashid v. The State PLD 1975 Kar.
92. In view of the above discussion the evidence of the Mashir cannot be rejected. P.W.2 had recovered the sten gun with four live cartridges in the magazine, he sealed those articles in the bag which were taken to police station and forwarded to the Finger Print Expert. Abdul Rauf and Naeem Ahmad proved that the finger-print on the sten gun were similar to the finger-print of the appellant. All these facts have been proved and lead to the conclusion that the prosecution has established that the sten gun with four magazines was recovered from the possession of the appellant. There is nothing to suggest that the appellant had any enmity with the investigating officer or any other prosecution witness. In defence a witness was examined, but he has hardly improved the case of the appellant. He is a chance witness and has contradicted the statement of the accused who stated that he was arrested on 17-10-1989.
5. ' Mr. Dewan Bashir Ahmad contended that the judgment dated 31-7-1989 is without jurisdiction. In order to appreciate his contention it is necessary to refer to certain legislative provisions. On 13-10- 1988 by Ordinance XVI of 1988 Pakistan Arms (Amendment) Ordinance, 1988, section 13B was added which reads as follows:-- "13-B. Penalty for breach of section 8 or section 9 in respect of cannon or automatic weapon, etc.-- Whoever,--
(a) goes armed with a cannon, grenade, bomb, rocket or a light or heavy automatic weapon, such as a Klashnikov, a G-III rifle or any other type of assault rifle, in contravention of the provisions of section 8; or
(b) has in his possession or under his control any of the arms or weapons referred to in clause (a), or ammunition which can be fired from such weapon, in contravention of section 9; ' shall be punishable with imprisonment for a term which may extend to ten years and shall not be less than three years and fine."
6. Simultaneously by Ordinance XVII of 1988 Suppression of Terrorist Activities (Special Court)
7. Amendment Ordinance 1988, the Suppression of Terrorist Activities (Special Court) Act 1975 was amended and in the schedule to the said Act after paragraph (c) the following new paragraph was added:--
(cc) Any offence punishable under section 13A or section 13B of the Pakistan Arms Ordinance 1965, West Pakistan Ordinance No,XX of 1965."
8. ' The effect of these amendments was that if a person goes armed with a cannon, a grenade, bomb, rocket or a light or heavy automatic weapon like Klashnikov, G-III rifle or any other assault rifle in contravention of section 8 and has in his possession or under his control such arms in contravention of section 9 then he shall be punishable with imprisonment for ten years and not less than 3 years and fine. Further the Special Court has been authorised to try such cases.
9. ' The learned counsel for the appellant contended that as both the Ordinances were not enacted as an Act by the Parliament and lapsed with the expiry of four months, the Court did not have the jurisdiction to impose any penalty under it.
10. ' The petitioner was arrested on 27-10-1988, the first judgment was pronounced on 17-1-1989 but it was set aside by the judgment of the High Court, dated 17-6-1989 and case was remanded for rehearing. In pursuance thereof the case was reheard and decided on 31-7-1987. The learned counsel's main contention is that as the Ordinance expired on 12-2-1989 the Court did not have the jurisdiction to proceed and decide the case. The judgment was first pronounced on 17-1-1989 during the currency of the Ordinance but the proceedings from remand to re-hearing and passing of the impugned judgment were held after the repeal of the Ordinance. Therefore, it has to be considered whether the proceedings had terminated at the time when Ordinance was repealed by efflux of time. As the case was pending in appeal the proceedings had not terminated. By appellate order the case was remanded and therefore, the proceedings continued and shall be deemed to have remained pending. Therefore, the proceedings taken by the learned trial Court after the remand shall be saved by the provisions of Article 264 of the Constitution. The learned counsel for the appellant contended that Article 264 will not apply as the Ordinance has not been repealed but it has expired. In this regard reference can be made to Article 89 clause 2 (a) (i) which provides that 'the Ordinance shall be laid before the National Assembly and shall stand repealed at the expiration of four months from its promulgation or if before the expiry of it upon passing of that Resolution'. Therefore, under the Constitution by efflux of time the Ordinance stands repealed. The same terminology has been used in Article 264 which provides that repeal shall not except as otherwise provided by the Constitution affect any legal proceedings which may be continued as if the law had not been repealed. The learned counsel has referred to PLD 1960 Lah.
11. 236, AIR 1953 SC 301 and AIR 1931 SC 669 where it has been held that upon expiry of the Ordinance in the absence of any other provision the proceedings ipso facto terminate. These judgments will not apply to the present case as the Constitution itself provides a saving clause for pending proceedings. For these reasons the appeal is dismissed. The learned trial Court has already given the benefit of section 382-B, Cr.P.C. Which shall he applied while computing the period of sentence.