MUHAMMAD MUNIR KHAN, J.--- This Criminal Appeal No.435 of 1990 arises from the judgment of Presiding Officer, Special Court (Suppression of Terrorist Activities) Gujranwala, whereby he on 8-7- 1990 convicted Azhar Iqbal, appellant, under section 13 of the Arms Ordinance, 1965, and sentenced him to 5 years' R.I.
2. The charge against the appellant was of keeping unlicensed stengun P.1 and 10 bullets P.2/P1 to 10 on 14-2-1988. He denied the charge and claimed to be tried.
3. To prove its case, the prosecution produced three witnesses. Muhammad Azam, A.S.I., P.W.1, has prepared the formal F.I.R. Bashir Ahmad, S.I. P.W.2, and Rashid Mehmood, S.H.O. P.W.3, are the witnesses of the recovery of stengun P.1 and 10 live cartridges P.2/1-10 from the appellant. They have supported the allegations against the appellant.
4. When examined under section 342, Cr.P.C. The appellant denied the recovery of the stengun and bullets from him. He has given evidence on oath under section 340(2), Cr.P.C. In disproof of the charge against him. He produced two witnesses namely Rana Saleem Raza D.W.1 and Muhammad Naseem Butt D.W.2 in defence.
5. Believing the prosecution case and evidence produced by it and disbelieving the plea of false implication and the defence evidence, the trial Court has convicted and sentenced the appellant as stated above.
6. The learned counsel for the appellant mainly contended that the order of the conviction of the appellant on 8-7-1990 was illegal, without authority and of no legal effect inasmuch as the High Court vide its order, dated 27-2-1990 passed in Writ Petition No.910 of 1990 had stayed proceedings before the trial Court and the order was in existence on 8-7-1990. Learned counsel for the State has not controverted him and rightly so.
7. We have considered the matter carefully. And examination of the file of Writ Petition No.910 of 1.990 reveals that this Court vide its order, dated 27-2-1990 had stayed proceedings against the appellant in the trial Court and that order was very much in existence on 8-7-1990, when the trial Court convicted the appellant vide impugned judgment, so there can be no two opinions, that the order of the conviction of the appellant was/is illegal and without jurisdiction. It rather amounts to the Contempt of Court.
8. Pursuant to the above discussion the appeal is accepted. The conviction and sentence of the appellant is set aside and the case is sent back to Court for fresh proceedings in accordance with law. The appellant was the trial on bail on the date of his conviction. So he shall be released forthwith if not required to be detained in any other case.
9. Before parting with the judgment, we would direct the Presiding officer concerned to explain the reason of his non-compliance with the order, dated 27-2-1991 passed in Writ Petition No-9 10 of 1990. He will submit hip explanation within a week. When the explanation is received, it will be placed before the Division Bench of this Court for further order.
SA./A-1419/L