MUHAMMAD MUNIR KHAN, J.--- These two Criminal Appeals Nos.3 of 1990 filed by Lal Deeno, Muhammad Asghar, Manjhi and Ghulam Rasool and Criminal Appeal No.4 of 1990 filed by Ghulam Shabbir arise from the judgment of Presiding Officer, Special Court, constituted under Suppression of Terrorist Activities (Special Courts) Act, 1975, whereby he, on 17-6-1990, while acquitting Habibullah and Sabir, convicted the appellants under various sections of P.P.C. And section 13-A of the Arms Ordinance, 1965, and sentenced them as under:-- Lal Deeno appellant: (i)Under section 365, P.P.C. To five years' R.I. And fine of Rs.50,000 or in default thereof one year's R.I.
(ii)Under section 411, P.P.C. To three years' R.I. And a fine of Rs.50,000 or in default thereof further two years' R.I.
Muhammad Asghar, appellant Under sectors 216-A, P.P.C. To five years' R.I. And a fine of Rs.50,000 or in default thereof, one year's R.I.
Manjhi, appellant Under section 411, P.P.C. To three years' R.I. And a fine of Rs.60,000, or in default thereof, one year's R.I.
Ghulam Rasool, appellant (i)Under section 216-A, P.P.C. To five years' R.I. And a fine of Rs.50,000 or in default thereof to one year's R.I.
(ii)Under section 411, P.P.C. To two years' R.I. And a fine of Rs.30,000 or default thereof, one year's R.I.
Ghulam Shabbir appellant (i)Under section 392, P.P.C. To ten years' R.I. And a fine of Rs.80,000 or in default thereof, two years'
R.I.
(ii)Under section 411, P.P.C. To three years' R.I. And a fine of Rs.60,000 or in default thereof one year's R.I.
(i.e)Under section 13-A of the Arms Ordinance, 1965, to five years' R.I. And a fine of Rs.60,000 or in default thereof six months' R.I.
More than one sentences awarded to the appellants were directed to run concurrently. We propose to dispose of the above-mentioned appeals through this single judgment.
2. Since after hearing the learned counsel for the parties, we feel inclined t c, set aside the convictions and sentences of the appellants on account of illegality m, the trial and for want of jurisdiction of the trial Court to try and convict the appellants, under sections 216-A, 365 and 411, P.P.C. And in the same trial to try Ghulam Shabbir under section 13-A of the Arms Ordinance, 1965, on the charge of recovery of Klashnikov after more than two months of the main occurrence, we need not set out the facts in detail and enter into the merits of the case.
3. We find that the case was originally registered under section 392, P.P.C. And section 17 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, on 12-3-1990 at Police Station Kot Samaba. The appellants other than Ghulam Shabbir were arrested on 25-4-1990 and Ghulam Shabbir was arrested on 16-5-1990 by Muhammad Hussain Shah, Inspector, P.W.17. On 25-4-1990, the stolen car P.3 was recovered from Lal Deeno Driver. The stolen wrist watch P.4 was recovered from Muhammad Asghar appellant. On 3-5-1990 Manjhi appellant got recovered tape-recorder, which was removed from the car by the accused persons. On 7-5-1990, Ghulam Rasool got recovered car air---conditioner P.6, which was removed by the culprits from the stolen car. On the same day, Lal Deeno led to the recovery of stolen purse P.7 containing Rs.30,000 Exh.P.8/1-30 (stolen cash) from a house situated within the limits of Police Station Kot Samaba. On 22-5-1990, Ghulam Shabbir appellant got recovered unlicensed Klashnikov P.1. After investigation, the police submitted challan under sections 216-A, 365, 392 and 411, P.P.C. In the Special Court for Anti-terrorist Activities, Bahawalpur Division Bahawalpur. On 6-6-1990, Mr. Fakhar-ud-Din Siddiqi, Presiding officer of the said Court framed separate charges against the appellants. Manjhi, Sabir and Muhammad Asghar were charged only under section 411, P.P.C. Lal Deeno was charged under sections 365 and 411, P.P.C.
Ghulam Rasool was charged under sections 216-A and 411, P.P.C. Ghulam Shabbir was charged under sections 392 and 411, P.P.C. And under section 13-A of the Arms Ordinance, 1965. All the appellants were tried jointly and on the conclusion of the trial, they were convicted and sentenced, as stated above.
4. The entire proceedings conducted by the Presiding Officer, Special Court, from the stage of framing the charge upto the conviction of the appellants were illegal and without jurisdiction for the reasons that the offences under sections 216-A, 365 and 411, P.P.C. Are not Scheduled Offences, so before proceeding in the case, the Presiding Officer was obliged to pass an order under section 4 of the said Act, which reads as under:-- Section 4--- (1) Jurisdiction of Special Court--- Notwithstanding anything contained in the Code, the Scheduled offences shall be triable exclusively by a Special Court: Provided that this section shall not be construed to require the transfer to a Special Court of any case which may be pending in any Court immediately before the constitution of the Court: Provided further that the Government constituting a Special Court may, by notification in the official Gazette, direct that the Special Court shall have jurisdiction to try only such persons who have committed Scheduled offences as may be specified in the notification; (2)If, in the course of a trial before the Special Court, the Court is of the opinion that any of the offences which the accused is alleged to have committed is not a Scheduled offence, the Court shall record such opinion and try the accused only for such offence, if any, as is a Scheduled offence:'
5. Sections 216-A, 365 and 411, P.P.C. Were/are not Scheduled Offences. The occurrence of robbery took place on 12-3-1990. Unlicensed Klashnikov was recovered from Ghulam Shabbir appellant on 22-5-1990 i.e. After about two months and ten days from a place other than the place of the offence of robbery. So, the offences for which Ghulam Shabbir appellant was challaned, charged, tried and convicted in a joint trial, were not committed in the same transaction of the robbery. The plain reading of the language `if, in the course of a trial before the Special Court, the Court is of the opinion that any of the offences which the accused is alleged to have committed is not a Scheduled offence, the Court shall record such opinion and try the accused only for such offence, if any, as is a Scheduled offence' used in section 4 reproduced above, will show that since the offences under sections 216-A, 365 and 411, P.P.C. Which the accused/appellants were alleged to have committed, were not the Scheduled offences, therefore, the trial Court was obliged to record such opinion and try the accused only for such offences, if any, as is a Scheduled offence.
Strangely enough, the Presiding Officer unmindful of the mandatory requirement of law not only failed to record his opinion but also charged, tried and convicted the accused/appellants under sections 216-A, 365 and 411, P.P.C. Though the same were not the Scheduled offences. He also committed blunder by trying one of the appellants, namely, Ghulam Shabbir for an offence under section 13-A of the Arms Ordinance, 1965 which was not committed in the course of the same transaction. He did not stop there. He tried and convicted Ghulam Shabbir appellant for the same offence under section 13-A of the Arms Ordinance, 1965, twice. He recorded his conviction in the main robbery case and also tried him separately under section 13-A of the Arms Ordinance, 1965 and has convicted and sentenced him in that case also. This to our mind is an illegality, which cannot be cured and-resultantly vitiates the entire trial including the convictions and sentences of the appellants. We feel constrained to observe that the Presiding Officer has shown complete ignorance about the elementaries of law, which he should have known by this time.
6. Pursuant to the above discussion, the appeals are accepted. The convictions and sentences of all the appellants are set aside and the case is remanded to the trial Court for re-trial in accordance with law.
The Jail Authorities will produce the appellants before the trial Court on 19-3-1991.