MUHAMMAD MUNIR KHAN, J.--- These seven Criminal Appeals Nos.678 of 1990, 680 of 1990, 471 of 1990, 460 of 1990, 363 of 1990, 528 of 1990 and 679 of 1990 arise from the judgments of Presiding Officer, Special Courts (Suppression of Terrorist Activities) Gujranwala, Sargodha, Lahore and Faisalabad, whereby they convicted the appellants namely Ashiq Hussain Shah on 29-7-1990, Muhammad Riaz on 19-5-1990, Ahmad Sher on 11-7-1990, Muhammad Amil on 25-7-1990, Khan Muhammad on 19-5-1990, Bashir Ahmad alias Nazir Ahmad on 16-8-1990 and Nasir Ahmad on 19- 6-1990 under section 13 of the Arms Ordinance, 1965, on the charge of keeping with them unlicensed sten-gun/klashnikov and bullets on 21-12-1989, 31-5-1989, 7-4-1989, 25-10-1989, 9-2- 1990, 4-7-1987 and 16-12-1988, respectively, and sentenced them to various terms of imprisonment and different amount of fine.
Since common question of law relating to the jurisdiction of the Special Courts to try and convict the appellants on the charge of keeping unlicensed klashnikov and sten-gun has arisen in these appeals, so we propose to dispose of them, through this single judgment.
2. After hearing the learned counsel for the parties, we feel persuaded to set aside the conviction and sentences of the appellants for lack of jurisdiction of the Special Courts to try them for the offences with which they were charged, so we need not set out the facts in detail and enter into the merits of the case.
3. The learned counsel appearing for the appellants relied on cases Muhammad Asif v. The State 1989 P Cr. L J 1310, Muhammad Aslam alias Sooba v. The State 1990 P Cr. L J 704 (D.B.) and Bakhtiar Ahmad v. The State PLJ 1991 Crl. Cases (Lahore) 187 (D.B.) to contend that the three Ordinances namely Pakistan Arms (Amendment) Ordinance, 1988 (Ordinance No.XVI of 1988), Suppression of Terrorist Activities (Special Courts) (Amendment) Ordinance, 1988 (Ordinance XVII of 1988) and Suppression of Terrorist Activities (Special Courts) (Second Amendment) Ordinance, 1988 (Ordinance XXV of 1988) by which arms such as a "Klashnikov", a "G-II Rifle" or any other type of assault rifle, were added in paragraph `C' of the Schedule to the Suppression of Terrorist Activities (Special Courts) Act, 1975, having not been laid before the Legislature, stood automatically repealed much before the dates of the recovery of these arms from the appellants and as such the trial of the appellants by the Special Courts was without jurisdiction. The learned counsel appearing for the State in these appeals are not in a position to controvert them.
4. We have carefully attended to the submissions made by the learned counsel for the parties and have examined the aforesaid Ordinances and also Ordinance No.X of 1989, Ordinance No.1 of 1990, Ordinance No.XI of 1990 and Act V of 1990, published in the Gazette of Pakistan on 7-11-1988, 3-9- 1989, 17-3-1990, 3-10-1990 and 16-6-1990 respectively and also the case-law cited by the learned counsel for the appellants at the time of hearing of the case. We feel persuaded to agree with the learned counsel for the appellants. Admittedly, Ordinance NOXVII of 1988 and Ordinance NOXXV of 1988 were not laid before the appropriate Legislature after four months of their publication in the Gazette of Pakistan and, as such, stood repealed after the period of four months as provided in Article 189 of the Constitution of Islamic Republic of Pakistan 1973. Furthermore, Suppression of Terrorist Activities (Special Courts) (Amendment) Ordinance; 1990 (Ordinance I of 1990) was again promulgated on 17-3-1990 and the position of the Schedule to the Act amended vide Ordinance of 1988 was carried further. Unfortunately, this Ordinance was not laid before the Legislature after four months of its promulgation. So the continuity of the Ordinance could not remain intact. Finally, Suppression of Terrorist Activities (Special Courts) Amendment) Act 1990 (Act No.V of 1990) was promulgated on 16-6-1990, in which the amendment introduced under Ordinance No.1 of 1990 was kept intact.
Be that as it may, the fact remains that on the dates of the occurrence, i.e. The dates of the recovery of the sten-gun/klashnikov from the appellants, neither the Ordinances XVI, XVII and XXV were alive nor proceedings under these Ordinances, which by that time were deemed to have been replaced were pending adjudication against the appellants. This being the position, the trial of the appellants on the charges of keeping unlicensed arms such as sten-gun and klashnikov, which were introduced through Ordinances of 1988 was corum non judice.
5. Pursuant to the above discussion, all these appeals are accepted and the convictions and sentences of the appellants are set aside. The trial Courts shall return the challans against the appellants to the S.H.O. Concerned for presentation before the Illaqa Magistrate/Assistant Commissioner concerned for trial in accordance with law. The appellants who have been allowed bail by this Court shall remain on bail during their fresh trial. The appellants who are in jail will move application for bail before Illaqa Magistrate/Assistant Commissioner concerned, if so advised.