HAZIQUL KHAIRI, J- By this common judgment I will dispose of C.P.No.D-522/90, Mohammad Raza v/s Government of Pakistan and others, C.P.No. 686/90, Umar Daraz v/s Government of Pakistan & others, C.P.No.D- 761/90, Zulfiqar All v/s Government of Pakistan & others, C.P.No.D-690/90, Mohammad Mueen V/s Government of Pakistan & others C.P.No.D-691/90 Mohammad Amir v/s Government of Pakistan & others and C.P.No.D-692/90, Abdur Rahman v/s Government of Pakistan and others, and C.P.No.D-858 of 1990, Abdul Mannan Khattak v/s District & Sessions Judge, Karachi.
In all these petitions 30 bore pistols were recovered from the person of the petitioners who have called in question Section 13-A & B newly introduced to Pakistan-Arms Ordinance, 1965 and amendment made in Schedule 'C' to the Suppression of Terrorist Activities (Special Courts) Act, 1975, and consequently have challenged the proceedings before the Special Court constituted under the later Act.
2. The limited question for consideration before us is "whether recovery of these pistols from the person of petitioners will attract the provisions of Section 13:A & B of the Pakistan Arms Ordinance, 1965, cognizance? Whereof may be taken under Suppression of Terrorist Activities (Special Courts)
Act, 1975. It may be stated here that the said Section 13-A & B was added into Pakistan Arms Ordinance, 1965, by Pakistan Arms (Amendment) Ordinance, 1988, and amendment was also made in the Schedule to the Suppression of Terrorist Activities (Special Courts) Act, 1975, by the amending Ordinance of 1988 which may be reproduced as follows: "13-A Penalty for breach of Section 4 in respect of cannon or automatic weapon etc. Whoever sells or keeps, offers, or expose for sale, cannon, grenade, bomb, rocket or a light or heavy automatic or semi-automatic weapon, such as a kalashnikov, 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 14 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.
(a) Whoever goes armed with a cannon, grenade, bomb, rocket or a light or heavy automatic weapon such as a kalashnikov, 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 filed from such weapon, in contravention of Section 9;
(c) shall be punishable with imprisonment for a term which may extend to ten years and shall not be less than three years and fine."
"4. Amendment of Schedule, Act XV of 1975.- In the said Act. In the Schedule,--
(a) in paragraph (a), in sub-paragraph (i), after the figure, letter and comma "124 A," the figure, Jetter and comma "365 A," shall be inserted; and
(b) in paragraph (c), for the "Words "or rocket", the commas, words, letter and figure," rocket or a light or heavy automatic or semiautomatic weapon, such as a kalashnikov, G-III rifle or any other type of assault rifle" shall be substituted and shall be deemed to have been so substituted on the seventh day of November, 1988."
Mr. Gul Zaman Khan and MrA. Mujeeb Pirzada, learned counsel for the petitioners urged before us that, the reading of Section 13-A & B of the Pakistan Arms Ordinance, 1965, and the Schedule to Suppression of Terrorist Activities (Special Courts) Amendment Ordinance, 1980, will reveal that "a pistol" does not fall within the ambit of the expression "a light or heavy, automatic or semiautomatic weapon such as kalashnikov, G-III rifle or any other type of assault rifle". Therefore, a person from whom a pistol is recovered cannot be trial by the said Special Court. It was urged that in this category weapons specifically mentioned, namely, "kalashnikov, G-III rifle" or generally mentioned namely "other type of assault rifle" have been included to the exclusion of other kinds of weapons whether light or heavy, automatic or semi-automatic including pistol. According to them the expression "such as" expressly defines and restricts the preceding expression, namely, "light or heavy, the automatic or semi-automatic weapon" to kalashnikov, and would not extend to other class of weapons. In other words the expression "such as" has specific significance in the context and should be interpreted as "that is".
3. In support of his contention, learned counsel has placed reliance on a decision of a. Division Bench of this Court in M/s United Cotton Factory Hyderabad versus Ahmed Khan, PLD 1960 (West Pakistan) Karachi 774, in which it was held as follows: " It is well known principle of the construction of statutes that where general words follow particular words, the latter, i.e. The particular words, shall govern ones, defining and restricting their meaning to the same context in which the particular words are used. In other words, general words in such a situation, are to be read in sui generis with the particular words."
Next it was contended the learned counsel that where the statute is penal in nature, it must be construed very strictly and in case of any ambiguity the benefit must necessarily go to the accused person. Reference was made to Bindra's Interpretation of Statutes, 7th Edition, Page 780 as under:- "An Act entailing penal consequences should not be applied to anyone who is not brought within it in express language. It is elementary that ir, dealing with a penal provision the rule of strict construction requires that the language shall be construed so that no case shall be held to fall within it which does not fall within the reasonable interpretation of the enactment. A penal statute should not suffer from vagueness. It should clearly indicate the provision enacted by it, so that, persons affected are in a position to know the true intention. An order of a penal nature must be clear and specific in its language and must not leave anything to presumption."
It will be appropriate here to mention the views as expressed by our Supreme Court in Brig. (Retd.)
F.BAli & another vs. The State^P.L.D. 1975 S.C. 506), as under: - "The language of penal statute has to be construed strictly and no question can possibly arise in such a statute of "carrying forward any legal fiction" which is not attracted b^ the plain words of a statute ' which seriously curtails the rights of a citizen."
4. Mr Abdul Ghafoor Mangi, learned A A.G., however, maintained that the language of Section 13-A and B of the Pakistan Arms Ordinance, 1965 and the amended Schedule to the Suppression of Terrorist Activities (Special Court) Act, 1975 is plain and the expression "such as" used therein conveys the ordinary meaning attached to it. There was no cogent reason to deviate from the Golden Rule of Interpretation that words of statute should be given their ordinary meaning as was also held in Muhammad Iqbal Khan Niazi vs. Vice Chancellor, University of Punjab (P.L.D. 1979 SC 1) that: "The first and most elementary rule of Construction is that it is to be assumed that the works in a statute must be construed according to their ordinary meaning and if there is no ambiguity about the ordinary meaning of the words which have to be construed then the courts would not be justified in altering the ordinary meaning of these words by resorting to complicated cannon of construction."
While the Golden Rule enshrines on the statute book, there is no controversy that penal law should be strictly construed. Such being the cardinal rules of interpretation of statutes, let us. Proceed to examine the question before us in the light of contentions raised by the learned counsel for the parties. It would be worthwhile to consider in what context the words "weapon", "Automatic", "Semi- Automatic", "Such as" were used in the statutes in question.
5. According to Chambers 20th Century Dictionary, New Edition, "Weapon" means any instrument of offence or defence", "Automatic Firearm", is one which "reloads itself from internal magazine or be able to continue firing as long as there is pressure on the trigger."
In Foreign Ballistics in criminal Justice by Kumar 1987 Edition "Semiautomatic weapon" means partly automatic but requiring some tending by hand". (P.1178).
The meaning of "Such as" in as follows: ""Such as"-For example of the indicated or implied kind; as, a picture such as this one".
(Webster Dictionary of English Language)
"Such as",
1. For example,
2. Of the stated or implied kind or degree; similar; like.
2. A person or persons or thing or things implied or indicated.
2. One of such kind."
6. In "Illustrated guide to weapons of the modern Soviet Ground Forces" Edited by Ray Bonds, Published by Salamander Book Limited, London, reference is made to 'Kalashinkov' and 'Assault Rifle' and in Encyclopedia of world Military Power, Printed by Temple Press, First Edition, reference is made to "G-III rifle" giving details of their calibre, weight, length, velocity, effective range etc. Tracing the history of Kalashinkov it is stated; "The Soviet Army has always understood the value of sheer volume of fire, particularly if it could be produced by not very likely trained troops firing simple weapons. During World War II they had been and been impressed by the German MP.44, and as soon as the War was over they set out, assisted by captured German designers, to produce a similar weapons of their own. This let to the Automatic Kalashinkov assault rifle-the AK 47-an exceptional weapon in every respect." (Page 134).
"G-3 rifle" has been described as follows:- "Koch G-3 assault rifle is s development of the CETME design and was adopted by the West- German Bundeswehr during 1959.In many ways it has proved to be one of the most successful of all the post-war Germany Weapon designs and it is still in production not only in West Germany but in numberous other countries which have produced their own weapons under licence.
Although the makers would not like it to be said, the Heckler and Koch G-3 is the nearest that designers have come to the use and throw away rifle. Despite the cost the G-3 is a weapon designed from the outset for mass production using as much simple machinery as is possible."
(Page 252).
With regard to Assault Rifle, the following information is provided:- "The rifle is designated AKS-74 and is of 5.45 mm calibre, i.e. Slightly smaller than the (JS round, lt is a Kalashinkov design and it is clearly based upon the AKM; indeed, it may even be a simple rebarrled and * modified version of the earlier weapon. The muzzle brake is reported to be very efficient, virtually eliminating recoil, and thus leading to a very accurate weapon, even when firing automatic. The plastic magazine and hollow butt indicate major efforts to save weight which tend to be confirmed by the obvious ease with which it is carried." (Page 138).
7. According tb the writer- of "Forensic Ballistics in criminal Justice" (1987 Edition, Published by Eastern Room Company, Lucknow at page 23) "In the 1960's, the assault rifle, a light medium range weapon, with a switch allowing fully automatic fire came into prominence in the army." The "Encyclopedia of World Military Power" printed by Temple Press, First Edition contains the following characteristic of a "Snipping Rifle":- "The modern sniping, rifle is a remarkable piece of equipment that embodies all the finer points of the gun designer's, gun maker's and ammunition Specialist's skills. Although it is a very often based on an existing design it is usually manufacture to high degrees of precision to ensure that its user, the sniper secures the all-important first-round hit and the target every time." "But one thing all these rifles have in common is that they are extremely accurate and in the hands of the right man they are lethal."
Now reverting to 30 bore pistol which was recovered from the person of the accused, it must be remembered that by virtue of its mechanism and performance a pistol falls under a different head of arms. According to the New Hamlyon Encyclopedia Dictionary 1988 Edition, a pistol "is a short firearm intended to be held and fired with one hand." According to Forensic Ballistics in Criminal Justice (Page 25)" The term pistol includes all weapons that could be operated by one hand.
Revolvers are also included with this general terms of pistols but exclusively mean those weapons which have revolving chambers". As many as a dozen types of pistols are mentioned in this book, including single-shot pistols having Russian manufactured rim fire and centre fire in Calibres from 0.22 to 0.44 as target pistol to automatic and Semi-automatic pistols. W.H.B. Smith "on small Arms of the World" while dealing with automatic pistol states that an automatic pistol is actually misnamed as minimum weight of a truly automatic weapon is 8 pondes whereas a pistol for personal use cannot be permitted to go beyond 40 ounces.
8. Thus it is evident that in its mechanism and performance i.e. In its calibre, weight, length, muzzle, magazine, velocity, effective range and handling, a pistol whether it is 30 bore or not is different and distinguishable from Kalashinkov, G-III rifle or any other type of assault rifle all of whom belong to a Sophisticated class of rifles.- By their high degree of efficiency, accuracy and precision, sheer volume of fire, the user secures first round hit and target every time. Without deviating from the Goldep Rule of Interpretation whereunder among others the ordinary meaning of words "Such as" stand for "similar", "like" or "one of such kind", I am inclined to hold that these words restrict the general expression, namely, "light or heavy, automatic or semi-automatic" to the class of weapons specifically stated namely, "Kalashinkov and G-III rifle" or generally mentioned i.e. "any other type of assault rifle" to the exclusion of other weapons. In other words, the General expression will give way to the specific expression following it which In turn qualifies and redefines the former. There is no dispute that where the same statute makes general provisions and also Specific provision; the later will prevail over the former, more so when found in a penal statute. In State vs. Ziaur Rehman, P.L.D. 1973 S.C. 49, the Supreme Court of Pakistan observed: "It is a well-established rule of interpretation that where in a statute there are both general provisions as well as Special provision for meeting a particular situation, then it is the Special provisions that must be applied to that particular case or situation instead of the General provisions".
9. In the result it is held that recovery of the said pistols from the person of petitioners will not attract the provisions of Section 13-A & B of the Pakistan Arms Ordinance, 1965 and consequently the Special Courts constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975 shall have no jurisdiction to try them thereunder with no order as to costs.