MUHAMMAD AMIR MALIK, J.--- Najam-ul-Hassan, Bakhtiar Ahmad and Abdul Rehman's were convicted under section 13 of the Arms Ordinance 1965 by Special Courts constituted under the Suppression of Terrorist Activities (Special Courts) Act, .1975, and sentenced to various terms of imprisonment. They have appealed against their conviction and sentence. Since a common question of law has been raised, it is proposed to dispose of the appeals by a single judgment.
2. According to the prosecution case Najam-ul-Hassan, Bakhtiar Ahmad and Abdul Rehman's had respectively led to the recovery/were found in possession of .32 bore automatic Mauser, .30 bore (magazine) Mauser and .30 bore automatic Mauser.
3. Learned counsel for the appellants contended that the weapons/arms recovered from the appellants did not fall under paragraph (c) or (cc) of the Schedule to the Act of 1975. Thus, according to them, the Courts constituted under the Act were coram non judice. Contrary view was canvassed by the learned Additional Advocate-General.
4. To appreciate the contentions raised, broad features and provisions of the Pakistan Arms Ordinance, 1965 need be reviewed.
5. West Pakistan Arms Ordinance, 1965 (XX of 1965) was promulgated by the Governor of West Pakistan in exercise of powers conferred on him under Article 79 of the Constitution of 1962, to replace the Arms Act, 1878 in the Province of West Pakistan. Arms Act, 1878 was a Central Act and adopted in Pakistan as such after independence. The Ordinance of 1965 being a Provincial law was applicable to the Province of West Pakistan except the Tribal Areas. However, it was enacted as a Central Statute vide West Pakistan Arms (Amendment) Act, 1974 (Act No.XXXVIII of 1974).
Section 3(1) of the Ordinance of 1965 in clause (b) defines arms as under:--- (b)`arms' includes--- (i)cannon; (ii)fire-arms of all types, such as light and heavy automatic and semi--automatic weapons, rifles, carbines, muskets, shotguns (whether single or double-barrelled), revolvers, pistols and appliances the object of which is the silencing of fire-arms; .
(i.e) ...............................................................
(iv) ...............................................................
And cannon is defined as: (c)`cannon' includes --- (i)all types of artillery mortars, machine and sub-machine guns; (ii)
(i.e)
(iv)revolvers or pistols over .46 inch bore; (v)
(vi)projectors, guided missiles and dischargers for grenades, rockets, bombs and gas or smoke containers;
(vii) ...............................................................
(viii) ...............................................................
(ix)
6. Sections 4, 5, 8, 9, 10 and 11 relate to the offences under the Ordinance while punishment therefor is catered in section 13. No person is to sell or keep, offer or expose for sale any arms, ammunition etc. Or undertake the repairs thereof except under a licence and in the manner and to the extent permitted thereby. (section 4).
No one can transport any arms or ammunition over the whole or any part of Pakistan or a Province except under a licence (section 5). No person is to go armed except under a licence and to the extent and in the manner permitted thereunder (section 8). Whoever has in his possession or under his control any arms or ammunition except under a licence is liable under section 9.
7.Section 13 reads:--- "13.--- Penalty for breach of sections 4. 5. 8 to 11; Whoever commits any of the following offences namely:--- (a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i) shall be punished with imprisonment for a term which may extend to seven years or with fine or with both: 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, rifle of .303 bore or over, musket .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.
8. The Arms Ordinance 1965 was amended vide Pakistan Arms (Amendment) Ordinance 1988 (Ordinance No.XVI of 1988). Amended section 13 came to have the following form:-- "13.--- Penalty for breach of sections 4, 5, 8 to 11: Subject to the provisions of section 13-A and 13-B, whoever commits any of the following offences, namely:---
(a) ...............................................................
(b)------------------------------------------------.
(c) ...............................................................
(d) .............................................................
(e)
(f) ...............................................................
(g) ...............................................................
(h)
(i)............................................................... shall be punished with imprisonment for a term which may extend to seven years or with fine, or with both: Provided that the punishment for an offence committed in respect of Any rifle of .303 bore or over, musket of .410 bore or over, pistol or revolver of .441 or over or ammunition which can be fired from such musket, pistol or revolver, shall be imprisonment for a term which is not less than three years."
9. Sections 13-A and 13-B were also added by the Amending Ordinance and for facility of reference are reproduced as under:-- "13-A.--- Penalty for breach of section 4 in respect of cannon or automatic weapon, etc.--- Whoever sells; or keeps, offers or exposes for sale, a cannon, grenade, bomb, rocket or light or heavy automatic or semi-automatic weapon, such as a Klashnikov, a G-III rifle or any other type of assault rifle, or ammunition which can be fired from such weapon, in contravention of the provisions of section 4, shall be punishable with imprisonment for a term which may extend to fourteen years and shall not be less than seven years, fine and forfeiture of property."
"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."
10. The offences under the Arms Ordinance being punishable with imprisonment extending up to seven years at the most were triable by Courts of ordinary Magistrates under the Code of Criminal Procedure, 1898. To check the crimes relating to arms and the terrorist activities in the country, the Suppression of Terrorist Activities (Special Courts) Act, 1975 was brought on the Statute Book. The offences with respect to particular types of weapons were made exclusively triable by the Courts constituted under the Act. Section 4 of the Act provided that "Notwithstanding any thing contained in the Code (Code of Criminal Procedure) the scheduled offences shall be triable exclusively by a Special Court." Paragraph (c) of the Schedule to the original Act is to the following effect:--- (c)Any offence punishable under the Arms Act, 1878 (XI of 1878), or any offence punishable under any of the following sections of the West Pakistan Arms Ordinance, 1965 (West Pakistan Ordinance NO.XX of 1965), namely, sections 8, 9 and 10, if committed in respect of a cannon, grenade, bomb or rocket."
11. Suppression of Terrorist Activities (Special Courts) Act, 1975 was amended by Suppression of Terrorist Activities (Special Courts) (Amendment) Ordinance, 1988 (Ordinance No.XVII of 1988) and Suppression of Terrorist Activities (Special Courts) (Second Amendment) Ordinance 1988 (Ordinance No.XXV of 1988). The scope of paragraph (c) of the Schedule to the Act was enlarged under Ordinance No.XVII. With the enlargement paragraph (c) would read as under:--- "(c)Any offence punishable under the Arms Act, 1878 (XI of 1878), or any offence punishable under any of the following sections of the West Pakistan Arms Ordinance, 1965 (West Pakistan Ordinance (No.XX of 1965), namely, sections 8, 9 and 10, if committed in respect of a cannon, grenade, bomb, rocket or a light or heavy automatic or semi-automatic weapon, such as a klashnikov, a G-III rifle or any other type of assault rifle."
12. Ordinance NOXVII of 1988 added paragraph (cc) to the Schedule. It is to the effect:-- "(cc) Any offence punishable under section 13-A or section 13-B of the Pakistan Arms Ordinance, 1965 (West Pakistan Ordinance No. XX of 1965):---
13. The two Ordinances, amending the Suppression of Terrorist Activities (Special Courts) Act, 1975, of 1988 seem not to have been laid before the appropriate Legislature and so stand repealed after the period of four months as provided in Article 89 of the Constitution of the Islamic Republic of Pakistan, 1973. However, Suppression of Terrorist Activities (Special Courts) (Amendment)
Ordinance, 1990 (Ordinance No.1 of 1990) was again promulgated and the position of the Schedule to the Act, amended vide Ordinance of 1988 was carried forward. This Ordinance has now been replaced by the Suppression of Terrorist Activities (Special Courts) (Amendment) Act, 1990 (Act No. V of 1990) and keeps the amendment introduced under Ordinance No.1 of 1990 intact.
14. From the analysis and details of the Arms Ordinance, 1965 and the Suppression of Terrorist Activities (Special Courts) Act, 1975 with all the amendments vide the amending Ordinances etc., as discussed above, we can well --appreciate the categories of arms for which different forums for trial have been provided with different sentences, while previously all the offences under the Arms Ordinance with respect to all types of weapons as defined in section 3 of the Ordinance of 1965 were made punishable under section 13 ibid and were triable by the Courts of Magistrates under the Code of Criminal Procedure. The first category is of: "any rifle of 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", for which imprisonment for a term upto.7 years and not less than three years is provided under section 13 of the Arms Ordinance. And the second category is of: "a cannon, grenades, bomb, rocket or light or heavy automatic or semi-automatic weapon such as Klashnikov, a G-111 rifle or any other type of assault rifle or ammunition which can be fired from such weapon (vide section 13-A)". For the offence under section 4 with respect to this latter category of Arms the punishment prescribed is `imprisonment for a term which may extend to 14 years and shall not be less than seven years, fine and forfeiture of property' (section 13-A) and with respect to offences under sections 8 and 9, the penalty is imprisonment for a term which may extend to 10 years but not less than 3 years and fine (section 13-B).
15. Learned Additional Advocate-General drew the attention of the Court to the fact that the words `automatic or semi-automatic weapon in section 13-A were followed by the words `such as Klashnikov, a G-III rifle or any other type of assault rifle' to build up the argument that the words `such as' were illustrative and not exhaustive and referred to any type of `automatic or semi- automatic' weapon. The Mauser, according to him, are automatic or semi-automatic pistol/or revolver and thus would also be covered under section 13-A. The offences with respect to these would, therefore, fall in paragraph (c) to the Schedule of Act of 1975 and thus exclusively triable by the Courts constituted under the Act. Of course words `such as' are illustrative but while visualizing other weapons/arms of the category of Klashnikov, a G-III rifle or any other type of assault rifle, the principle of ejusdem generic is to be kept in view. A weapon which is not automatic or semi- automatic and not a rifle of the kind of Klashnikov, a G-III or other assault rifle cannot be considered to be covered by section 13-A. Had the intention of the Legislature been to bring all automatic or semi-automatic weapons under its purview then its portion `whoever sells or keeps, offers or exposes for sale a cannon, grenade, bomb, rocket or light or heavy automatic or semi- automatic weapon,' would have sufficed with no need to continue with the words `such as Klashnikov, a G-III rifle or any other type of assault rifle'. And finally `a revolver or a pistol' could well have also been added in the section to make it all comprehensive.
16. Wisdom in categorising .The weapons, as discussed above, is even otherwise understandable.
For offences with respect to weapons of first category the punishment is upto seven years and not less than three years (which can be awarded by a Magistrate exercising the powers under section 30 of the Code), while the grave offence (under section 4) has been made punishable with imprisonment upto 14 years and not less than seven years with fine and forfeiture of property; and for somewhat milder offences (under sections 8 and 9) the punishment is imprisonment upto 10 years and not less than three years and fine. The latter type of offences are covered by paragraphs
(c) and (cc) to the Schedule of the Act of 1975 and thus triable by the Courts constituted under the Act, to be presided over by a person who is or has been a Judge of the High Court or is qualified to be appointed as such.
17. The upshot is that the offences under the Arms Ordinance in respect of rifle of .303 bore or over, musket of .410 bore or over, pistol or revolver of .441 or over or ammunition which can be fired from such rifle musket pistol or revolver are not scheduled offences under the Act (of 1975). We may also point out and observe that Mauser as such is not a weapon but is the name of the manufacturer (from Germany) of pistols and revolvers. The trials of the appellants before the learned Judge Special Courts being coram non judice the appeals must succeed. The conviction and sentence passed upon the appellants are, therefore, set aside. They may be released forthwith, if not required to be detained in any other case. The State would be well within its rights to submit challans in the competent Courts (of the Magistrates) for their trials in accordance with law.