1. ALLAH DINO G.. MEMON, J.--- Appellant Muhammad Arshad Mughal was charged and tried under section 13-D of the Arms Ordinance, before the learned Judge, Special Court, Suppression of Terrorist Activities, at Hyderabad. Who has convicted and sentenced him to suffer R.I. For 2-1/2 years, and to pay fine of Rs.1,000 or in default of payment of fine to undergo further R.I. For six months vide judgment dated 30-4-1990.
2. The brief facts giving rise to the present appeal are that on 5-4-1989, S.I.P. Muhammad Akbar Rajput and his staff were on patrol duty, and when they reached Naseer Canal from Mir Wah Road, they noticed that a person on seeing the police party was trying to hide himself in the jungle towards north of the road and, therefore, he was ordered to stop but he started running. The members of the police party surrounded and apprehended him. On inquiry, the said person gave his name as Arshad son of Abdul Hafeez Caste Mughal, resident of 542, Tando Allahyar. His body was searched in presence of Mashirs L.N.C. Muhammad Yaqoob and L.N.C. Abdul Majid, and a loaded mouser was recovered from the left side fold of his Shalwar. On demand, he could not produce licence and, therefore, he was arrested and mouser was seized, and such Mashirnama was prepared in presence of above Mashirs. The complainant then brought the accused and Mashirs to the peace station and lodged his report.
3. After necessary investigation, the accused was sent up before the learned Judge, Special Court, at Hyderabad.
4. At the trial prosecution examined H.C. Muhammad Saqoob, he has produced the Mashirnama of arrest and seizure of mouser as Exh.3/1, S.I.P., Muhammad Akber Rajput P.W.2, he has produced the F.I.R. As Exh.4/1.
5. After close of the prosecution case, the statement of the accused was recorded under section 342, Cr.P.C. In which he has denied the allegations. He has further stated that he had gone to college to- appear in examination from there he was taken away by police and implicated in this case. The mouser has been foisted on him. He also examine We Muhammad Shahid D.W.1 in his defence After taking into consideration;"` the evidence produced by the prosecution and the accused, the learned Judge was pleased to convict the appellant as described above and the present appeal is directed against the above judgment of conviction.
6. We have heard the learned counsel Mr. Shamim Ahmad, appearing for the appellant, Mr. A.
7. Ghafoor Mangi, learned A.A.-G. For the State, and have gone through the R&P of the case.
8. It was contended by Mr. Shamim Ahmed, learned counsel appearing for the appellant, that the pistol does not fall within the ambit of expression of light or heavy automatic or semi-automatic weapons such as Kalashnikov, G-111 rifle or any other type of assault rifle, and, therefore, the case of the appellant was not covered by Schedule `C' added by Act V of 1990. Therefore, the learned Judge Special Court, Suppression of Terrorist Activities, Hyderabad, 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 reliance has been placed on Division Bench Decision of this Court in Muhammad Raza v. The Government,, of Sindh and on QX. No.D-522, C.P. No&,686, 690, 691 etc. Of 1990.
9. Mr. Abdul Ghafoor Mangi learned AA: G. Appearing for the State has conceded to the legal position and has contended that in view of the above position, the conviction and sentence of the appellant may be set aside, and the matter may be remanded back to the Court having jurisdiction for deciding the same in accordance with law.
10. We have considered the contentions and have gone through the RX 's of the case. Since the legal point has been raised with regard to jurisdiction of the learned Judge, Special Court 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 mouser pistol was recovered from the appellant. In support of his contentions, the learned counsel for appellant has relied upon a recent unreported decision of a Division Bench of this Court in Muhammad Raza v. The Government of Pakistan C.P. No.D-522 of 1990 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 pistols were 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 weapons 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 Kalashnikov, G-111 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 pistols do not fall within the class of weapons, namely Kalashnikov, G-111 Rifle or any other type of assault rifle'
11. We are in respectful agreement with the above decision of the Division Bench, and hold' that the learned Judge, Special Court, Terrorist Activities, Hyderabad, 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 back to the learned District Magistrate, Hyderabad, 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.