MUHAMMAD MUNIR KHAN, J.--- This criminal appeal arises from the judgment of learned Presiding Officer Special Courts (Suppression of Terrorist Activities) Gujranwala, whereby he on 30-6-1990 convicted Muhammad Saghir appellant under section 13 of the Arms Ordinance, 1965 and sentenced him to 7 years' R.L and a fine of Rs.10,000 in default thereof one year's R.I.
2. The charge against the appellant was of keeping unlicensed klashnikov Exh.P.1, magazine Exh.P.2, 15 bullets Exh.P.3/1-15 and 45 live cartridges Exh.P.8/1-45 on 13-2-1989. He denied the charge and claimed to be tried.
3. To prove its case, prosecution produced 3 witnesses namely Muhammad Razzaq P.W.1, Muhammad Arif, S.I. P.W.2 and Muhammad Yousaf, A.S.I., P.W.3. P.W.2 and P.W.3 stated that the klashnikov, bullets and cartridges were recovered from the appellant on 13-2-1989 for which he could not produced the licence.
4. When examined under section 342, Cr.P.C. The appellant denied the recovery of klashnikov and bullets, etc. He produced Khalid Pervez D.W.1 in defence.
5. Believing the prosecution case and disbelieving the defence, the trial Court has convicted and sentenced him as stated above.
6. After hearing the learned counsel for the parties, we feel persuaded to set aside the conviction and sentence of the appellant for lack of jurisdiction of the Special Courts to try them for the offences with which they were charged, so we need not set out the facts in detail and enter into the merits of the case.
7. Learned counsel appearing for the appellant relied on cases Muhammad Asif v. The State 1989 P Cr. L J 1310, Muhammad Aslam alias Sooba v. The State 1990 P Cr. L J 704 (D.B.) and Bakhtiar Ahmad v. The State 1991 P Cr. L J 2398 (D.B.) to contend that the three Ordinances namely Pakistan Arms (Amendment) Ordinance, 1988 (Ordinance No.XVI of 1988), Suppression of Terrorist Activities (Special Courts) (Second Amendment) Ordinance, 1988 (Ordinance XXV of 1988) by which arms such as `a Klashnikov' a `G-III' rifle or any other 'type of assault rifle', were added is paragraph `C' of the Schedule to the Suppression of Terrorist Activities (Special Courts) Act, 1975, having not beer laid before the Legislature, stood automatically repealed much before the dates of the recovery of these arms from the appellants and, as such, the trial of the appellants by the Special Courts was without jurisdiction. The learned counsel appearing for the State in these five appeals are not in a position to controvert them.
8. We have carefully attended to the submissions made by the learned counsel for the parties and have examined the aforesaid Ordinances and also Ordinance No.X of 1989, Ordinance No.1 of 1990, Ordinance XI of 1990 and Act of 1990, published in the Gazette of Pakistan on 7-11-1988, 3-9-1989, 17- 3-1990, 30-10-1990 and 16-6-1990 respectively and also the case-law cited by the learned counsel for the appellant at the time of hearing of the case. We feel persuaded to agree with the learned counsel for the appellant. Admittedly, Ordinance NoXVII of 1988 and Ordinance No.XXV of 1988 were not laid before the appropriate Legislature after four months of their publication in the Gazette of Pakistan and, as such, stood repealed after the period of four months as provided in Article 189 of the Constitution of Islamic Republic of Pakistan, 1973. Furthermore, Suppression of Terrorist Activities (Special Courts) Amendment Ordinance, 1990 (Ordinance I of 1990) was again promulgated on 17- 3-1990 and the position of the Schedule to the Act amended vide Ordinance of 1988 was carried further. Unfortunately, this Ordinance was not laid before the Legislature after four months of its promulgation. So the continuity of the Ordinance could not remain intact. Finally Suppression of Terrorist Activities (Special Courts (Amendment) Act, 1990 (Act No.V of 1990) was promulgated on 16-6-1990, in which the amendment introduced under Ordinance No.1 of 1990 was kept intact.
Be that as it may, the fact remains that on the dates of the occurrence, i.e. The dates of the recovery of the stengun/klashnikov from the appellant, neither the Ordinances, XVI, XVII and XXV were alive nor proceedings under these Ordinance which by that time were deemed to have been replaced were pending adjudication against the appellants. This being the position, the trial of the appellant on the charge of keeping unlicensed Arms such as stengun and klashnikov, which were introduced through Ordinance 1988 was corum non judice.
5. Pursuant to the above discussion; the appeal is accepted and the conviction and sentence of the appellant is set aside. The trial Court shall return the challan against the appellant to the S.H.O.
Concerned for presentation before the Illaqa Magistrate/Assistant Commissioner concerned for trial in accordance with law. The appellant who has been allowed bail by this Court shall remain on bail during his fresh trial. The appellant who is in jail will move application for bail before Illaqa Magistrate/Assistant Commissioner concerned, if so advised.