ABDUL MAJEED TIWANA, J.--- Mehr Khan appellant was tried by Special Court No.II, Suppression of Terrorist Activities, Sargodha, on a charge, under section 13 of the Arms Ordinance, 1965, for having been found in possession of an unlicensed Klashnikov alongwith a large number of live cartridges and also on a charge under section 4(b) of the Explosive Substances Act, 1908 for having been .Found in possession of a hand-grenade when on 9-9-1990 at about 3 p.m., he, after the police encounter taking place in Mohallah Yaro-Khel of Mianwali Town, surrendered to the police alongwith these weapons and ammunition.
2. On the conclusion of the trial he was convicted under section 13 of the Arms Ordinance, 1965 and sentenced to seven years' R.I. And a fine of Rs.20,000 or in default of its payment to further undergo one year R.I. He was also convicted under section 4-B of the Explosive Substances Act, 1908 and was sentenced to 14 years' R.I. And his entire property was confiscated to the State. Both these sentences were, however, directed to run concurrently and he was also given the benefit of section 382-B, Cr.P.C. Feeling aggrieved he filed the appeal.
3. Against the conviction and sentence of -the appellant the objections of his learned counsel were based more on technical grounds than on merits.
4. With reference to certain Ordinances repeatedly issued, amending the schedule to the Suppression of Terrorist Activities (Special Courts) Act, 1975, the learned counsel submitted that on 9-9-1990, when the offence was a allegedly committed by the appellant, the trial Court had no power to try him-- for the possession of Klashnikov and its ammunition and as such his conviction and sentence under section 13 of the Arms Ordinance, 1965, was without lawful authority. In this connection he referred to Ordinance No.1 of 1990, which was promulgated on 17-3-1990 and expired on 16-7-1990 on account of its having not been placed before Parliament for approval; Ordinance V of 1990 which was promulgated on 16-6-1990 and lapsed for the same reason on 15-10-1990; and Ordinance X of 1990 which was promulgated on 31-10-1990 and expired for the same reason on 1- 3-1991. There seems to be no Substance in this contention of the learned counsel because, the offence which was committed on 9-9-1990, was committed during the domain of Ordinance V. Of A 1990 which, as per his own showing, had remained in force since 16-6-1990 to 15-10-1990. Its subsequent expiry, therefore, did not adversely affect the jurisdiction of the trial Court which it had one acquired on account of the offence having been committed during the continuance of the said Ordinance.
5. The next contention of the learned counsel was that under section 7 of Explosive Substances Act, 1988, the consent of the Provincial Government for the prosecution of the appellant was a condition precedent but no such consent was obtained. This argument was also fallacious. The sanction for appellant's prosecution accorded by the Commissioner, Sargodha Division; who had the authority to do so in terms of amended section 7, being an officer so authorised by the Provincial Government, is available on the record.
6. Another objection of the learned counsel was that the offence under section 13 of the Arms Ordinance, `1965 and the offence under section 4-B of the Explosive Substances Act, 1908 being distinct offences under two separate enactments could not be tried jointly in terms of the provisions of sections 233 and 234, Cr.P.C. In this connection he, by way of analogy, referred to an p authority interpreting the provisions of section 161, P.P.C. And section 5 of Suppression of Corruption Act, 1947. This argument is also without force. Section 235(2), Cr.P.C. Is very clear on this point.
Offences punishable under two different enactments but committed during the same transaction are triable in the same trial. Supreme Court's authority known as (sic) supports this view.
7. Lastly, it was urged that the provisions of section 103, Cr.P.C. Were mandatory and the same were not complied with in this case as no person from the locality was associated with the search and recovery proceedings. In this connection he quoted Sultan and others v. The State 1987 SCMR 1177 and Feroze v. The State 1991 P Cr. L J 1777. This contention of the learned counsel is also without substance. As it appears from the prosecution evidence, there had been an encounter of the police with the appellant and his companion, in' which a heavy police force had participated and eventually the appellant had surrendered before the police alongwith the klashnikov (P.1) and 110 live cartridges (P-1/1-10, P-3/1-21, P-4/1-21 and P-5/1-44) which were seized vide E recovery memo (Exh.PA.) besides hand-grenade (P.6), which was seized vide recovery memo. (Exh.P.B.). In these circumstances it was not a case of ordinary recovery with which the police could easily associate members of public. It was certainly an extraordinary situation and no member of the public, out of the risk to his life during the course of encounter and even thereafter at the hands of reckless people like the appellant, could dare participate and become witness of recovery.
8. In view of the above, no fault can be found with the conviction of the appellant. However, his sentence under the Explosive Substances Act, 1908 is reduced from 14 years to 10 years and the order of the trial Court regarding the confiscation of his entire property is set aside. In addition thereto, his sentence in this case is directed to run concurrently with his sentence in the case giving rise to Appeal No. Criminal Appeal No. 443 of 1991 which is also being disposed of alongwith this appeal. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.