ABDUL MAJID TIWANA, J.--- The appellants alongwith five others were accused in case: F.I.R. No.118, dated 6-3-1990 at Police Station Model Town, Lahore registered under section 395/398/109, P.P.C.
Out of them, two co-accused, namely, Sarfraz and Tipu were allegedly killed in police encounter and the remaining five accused, including the two appellants herein, were sent up for trial to the Special Court at Lahore, constituted under the Suppression of Terrorist Activities (Special Courts)
Act, 1975. During the trial it transpired' that Sarfraz and Tipu accused were killed in police encounter.
On the conclusion of the trial, vide judgment, dated 3-11-1990, the appellants and their two co- accused, namely, Muhammad Sohail alias Pappu and Muhammad Anwar, who have not preferred appeal against their conviction, were convicted under sections 395 and 398, P:P.C. Thus, where under section 395, P.P.C. They were sentenced to ten years R.I. And a fine of Rs.10,000 each or in default to undergo six months R.I. Each, under section 398,, P.P.C. They were sentenced to seven years R.I. Each. Their substantive sentences were directed to run consecutively. Mst. Nooran was, however, acquitted on benefit of doubt.
3. The main point urged by the learned counsel for the appellants with reference to the entries of the Schedule appended to the Suppression of Terrorist Activities (Special Court) Act, 1975 is that the fire-arms allegedly used by the appellants and their co-accused in committing dacoity were a pistols and two carbines, one of which at the trial was described as a `Mouzar' and as such the Special Court constituted under the Act had no jurisdiction to try the appellants and their co- accused.
4. Prosecution evidence shows that some of the accused at the time of committing the dacoity on 6-3-1991 were armed with fire-arms of unspecified kind. On 12-3-1990, when some of the accused were apprehended by the police, from their possession a revolver and two carbines were recovered. The revolver was later during trial described as the `Mouzer'.
5. The learned Assistant Advocate-General with reference to the recent authorities reported as 1991 P Cr. L J 780 and 1991 P Cr. L J 2398 concedes that the case was not triable by the Special Court, rather, it was triable by an ordinary Court.
6. This being so, we accept the appeal, set aside the conviction and sentence not only of the appellants but also of the two co-accused namely Muhammad Sohail alias Pappu and Muhammad Anwar, who have not, preferred appeal, and direct that they shall be retried in accordance with law by a Court of competent jurisdiction. However, the order of acquittal regarding Mst. Nooran co-accused shall remain intact. The appellants and their co--accused, who have not filed appeal, shall till the conclusion of the fresh trial, be treated as under-trials and shall stay in the judicial lock-up until they are bailed out by the Court concerned or otherwise acquitted.