A.M.TIWANA, J.- The appellants alongwith five others were accused in case: FIR No. 118, dated 6.3.1990 at Police Station Model Town, Lahore registered under sections 395/398/109 PPC. 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 398 and 395 PPC. Thus where under section 395 PPC they were sentenced to ten years R1 and a fine of Rs.10,000/- each or in default to suffer undergo six months R1 each, under section 398 PPC they were sentenced to seven years R1 each.
Their substantive sentences were directed to run consecutively. Mst. Nooran was however, acquitted on benefit of doubt.
2. 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 Courts) Act, 1975 is that the firearm allegedly used by the appellants and their co-accused in committing dacoity were a pistol 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.
3. Prosecution evidence shows that some of the accused at the time of committing the dacoity on 6.3.1991 were armed with firearms 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 'Mauzer'.
4. The learned Assistant-Advocate General with reference to the recent authorities reported as 1991 P.Cr.LJ. 780 and 1991 P.Cr.LJ. 2398 concedes that the case was not triable by the Special Court, rather, it was triable by an ordinary court.
5. 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.