' Younus Khan petitioner is a convict in a case under the Pakistan Arms Ordinance, 1965. He was tried by Assistant Commissioner/Magistrate 1st Class, Attock, for having been found in possession of an unlicensed sten-gun and two carbines with 100 live cartridges, when he was searched on suspicion at Attock Railway St:.Tion on 23-9-1987 by a police party. Vide his order, dated 23-11-1989, he convicted him under section 13 of the said Ordinance and. Sentenced him to three years' R.I. And a fine of Rs,10,000 or in default to undergo one year's S.I. His appeal was dismissed by the learned Additional Sessions Judge, Attock, by his order dated 7-2-1990. Hence this revision.
2. On the last date of hearing the learned counsel for the petitioner was asked to check up the relevant provisions of the Suppression of Terrorist Activities (Special Courts) Act, 1975, as I had doubts about the competency of the learned Magistrate to try this case.
3. After going through the provisions of the said Act, the learned counsel concedes that the case was not triable by the Assistant Commissioner/Magistrate 1st Class, Attock, so far as the sten-gun was concerned because by virtue of amending Ordinance XVII of 1988, the Schedule appended to the said Act was amended and a person having been found in possession of an unlicensed automatic weapon like sten-gun was to be tried by a Special Court established under that Act and not by a Magistrate.
4. Learned State counsel has, however, pointed out that the offence, for which the petitioner was convicted, was committed on 22-9-1987 and even his trial commenced under the old law and contained in section 13 of the Pakistan Arms Ordinance, 1965 and it is doubtful if he can be retried by a Special Court constituted under the said Act.
5. This is true that at the time of commission of the alleged offence section 13 of the Pakistan Arms Ordinance, 1965, was applicable and he was challenged thereunder. He could be tried by a Magistrate 1st Class for the possession of two unlicensed carbines along with one hundred cartridges as also for the possession of unlicensed sten-gun because section 13 ibid took care of both kinds of arms, non-automatic as 'the carbines were, and automatic as the sten-gun was.
However, during the pendency of the case the Pakistan Arms Ordinance, 1965 was amended by the Ordinance XVI of 1988, and the Suppression of Terrorist Activities (Special Courts) Act, 1975 was amended by Ordinance XVII of 1988. As a result of the former amendment, section 13 of Pakistan Arms Ordinance, 1965 was amended and sections 13-A and 13-B were added, and by the latter amendment, besides the substitution of section 5, addition of section 5-A, and amendment of section 7 of the Suppression of Terrorist Activities (Special Courts) Act, 1975, in the Schedule appended thereto, paragraph (cc) was added so as to make the offences under the newly-added sections 13-A and 13-B of the Pakistan Arms Ordinance, 1965, triable by the Special Court established under this Act. Since newly-added sections 13-A and 13-B in the Pakistan Arms Ordinance, 1965 created new offences it was obviously a substantive law having no retrospective effect but the addition of paragraph (cc) to the Schedule of Suppression of Terrorist Activities (Special Courts) Act, 1975, which made the newly-created offences triable by the Special Court, was a procedural law having retrospective effect.
6. As a necessary consequence of the aforesaid amendments, the offence allegedly committed by the petitioner, in respect of the sten-gun, which is a light automatic weapon, and its ammunition, became exclusively tribal by a Special Court set up under the 1975 Act, while the offence in respect of two carbines and their ammunition remained tribal by the Magistrate of the 1st Class. In other words, the learned Magistrate, who was trying the petitioner for the possession of both kinds of weapons and had the jurisdiction to do so, ceased to have jurisdiction to try him so far as the offence related to the sten-gun and its ammunition w,e,f, 13th of October, 1988, the day when the above-mentioned amending Ordinances came into force. He, however, continued to have jurisdiction to try him for the offence so far as it related to the carbines and their ammunition. But despite having ceased to have jurisdiction in respect of the stengun and its ammunition, he continued to try him and from that day onward the trial became illegal and without lawful authority. Therefore, his conviction and sentence is not sustainable at law.
7. In view of the above, the revision is accepted, the conviction and sentence of the petitioner recorded by the learned Magistrate and affirmed by the learned Additional Sessions Judge, Attock, are set aside, and he is directed to be retried:--
(a) by the Special Court at Rawalpindi set up under the said Act for an offence in respect of sten- gun and its ammunition punishable under section 13-A or 13-B of the Pakistan Arms Ordinance, 1965; and
(b) by the Magistrate 1st Class concerned at Attock for an offence in respect of two carbines and their ammunition punishable under section 13 of Pakistan Arms Ordinance, 1965.
8. The learned Special Court, in case of the conviction of the petitioner shall take care that his sentence does not exceed the maximum sentence provided in the old law i,e, section 13 of the Pakistan Arms Ordinance, 1965 as applicable to him prior to the promulgation of the amending Ordinance conferring jurisdiction on him.
9. The concerned police shall split the challan into two portions and submit fresh challans to the Courts concerned as indicated above.
10. As a result of the setting aside of the conviction and sentence of the petitioner and his consequent retrial, he is released on bail:--
(i) subject to his furnishing bail bonds in the sum of Rs,30,000 with two local sureties each in the like amount to the satisfaction of the learned Special Court at Rawalpindi; and sureties each in the like