1. ALLAHDINO G. MEMON, J.---Appellant Faisal Rashid was charged and tried under section 9 read with section 13-E of the Arms Ordinance before the learned Judge Special Court 14 of (Suppression of Terrorist Activities) Karachi, who has convicted and sentenced him-to suffer R.I. For seven years.
2. However, the appellant has been given benefit of provisions of section 382-B, Cr.P.C. Vide judgment dated 5th June, 1990.
3. The brief facts giving rise to the present appeal are that on 7-10-1989 S.H.O. Nasiruddin Ansari of Police Station Jauharabad received spy information that 5 persons were hiding in bushes of under construction bridge at Yasinabad. The S.H.O. Alongwith his subordinate staff and the mashirs proceeded to Yasinabad area, where he found some armed persons hiding in the bushes. It appears that the police managed to apprehend four of the armed persons including the present accused, and on search of his person a loaded pistol bearing No.7139 was recovered from his possession. Arms were also recovered from the possession of his 3 other companions. The accused were arrested, arms and ammunition were secured from them and such mashirnamas were prepared at the place of vardat. Since the accused had no licence, the F.I.R. Was lodged. After necessary investigation the accused was sent up before the Court.
4. A formal charge was framed against the accused/appellant to which he pleaded not guilty.
5. At the trial prosecution examined Mouladad Khan Ballistic Expert P.W.1, he has produced the Ballistic Report as Exh.2/A, Mashir Nusrat Ali P.W.2, he has produced the mashirnama of arrest and recovery as Exh.3/A, SHO Muhammad Nasiruddin Ansari P.W.3, he has produced the F.I.R. As Exh.4/A.
6. After close of the prosecution case, the statement of the appellant was recorded under section 342, Cr.P.C. In which he has denied the allegations. He has examined Muhammad Kamal P.W.1 and Najam Pervaiz D.W.2 in his defence.
7. The learned Judge, Special Court, after taking into consideration the evidence produced by the prosecution and the accused/appellant, has convicted and sentenced him as described above, and the present appeal is directed against the above judgment of conviction.
8. We have heard Mr. Muhammad Rafiq Khanzada learned counsel appearing for the appellant, Mr. Salman Ansari learned counsel appearing for the State, and have gone through the R & P of the case.
9. It was contended by Mr. Muhammad Rafiq Khanzada learned counsel appearing for the appellant, that the pistol does not fall within the ambit of the expression "light or heavy automatic or semi- automatic weapons", such as Klashnikov, G-III Rifle or any other type of assault rifle, and the case of the appellant was not covered by Schedule `C' added by Act V of 1990, and therefore, the learned Judge Special Court, (Suppression of Terrorist Activities), Karachi, had no jurisdiction to try the appellant and consequently the conviction and sentence of the appellant was liable to be set aside. In this connection he hay relied upon a Division Bench decision of this Court in C.P. Nos.D-522 of 199(1 (Muhammad Rata v. Government of Pakistan and others C.P. D-686, 690, 691 etc. Of 1990.
10. Mr. Salman Ansari learned counsel appearing for the State has conceded to the above legal position.
11. We have considered the contentions and have gone through the R&P of the case. Since a legal point has been raised with regard to jurisdiction of the learned trial Judge, by the learned counsel appearing for the appellant, and the decision which we propose to pass in this appeal, it is not necessary to consider the factual aspect of the appeal in detail. Suffice to say that according to the prosecution .30 bore pistol was recovered from the appellant. In support of his contention the learned counsel appearing for the appellant has relied upon a recent unreported decision of a Division Bench of this Court in C.P.No.D-522 of 1990 Muhammad Raza v. Government of Pakistan, and number of other Petitions in which the above point was directly in issue, and the jurisdiction of the learned Judge, Special Court, was challenged on the ground that the pistol was not covered by Schedule "C" added by Act V of 1990, and therefore, the learned Judge Special Court had no jurisdiction to try the petitioner. The Division Bench after taking into consideration various books on Forensic Science regarding nature of weapon and Dictionary meanings as well as the interpretation of word "such as" used in the above amendment observed, "that in its mechanism of performance i.e. In its calibre, weight, length, muzzle, magazine, velocity, effective range and handling a pistol whether it is .32 bore or not is different and distinguishable from Klashnikov, G-III Rifle or any other type of assault Rifle, all of whom belong to a sophisticated class of Rifles." It was, therefore, further observed "that the Pistol does not fall within the class of weapons namely Klashnikov, G-III Rifle or any other type of assault Rifle."
12. We are in respectful agreement with the above decision of the Division Bench, and hold that the learned Judge (Special Court Terrorist Activities), Karachi, had no jurisdiction to try the appellant and therefore, the appeal is allowed, conviction and sentence of the appellant is set aside, and the matter is remanded to the learned District Magistrate, Karachi, having jurisdiction to either proceed with the case himself or to transfer the same to some S.D.M. Having jurisdiction for decision in accordance with law.