1. ALLAHDINO MEMON, J. -- The appellant was charged and tried under section 13-E of the Arms Ordinance, before the learned Judge, Special Court (Suppression of Terrorist Activities) Karachi, in Case No.64 of 1990, who has convicted and sentenced him to suffer R.I. For three years. However, he has been given benefit of section 382-B, Cr.P.C. Vide judgment dated 12th August, 1990. The brief facts giving rise to the present appeal are that on the night between 1st and 2nd May, 1990, Inspector Muhammad Usman of Jamshed Police Station was on patrol duty alongwith his subordinate staff. At about 12-30 a.m. They saw two persons standing near the bus-stop near the Mubarik Masjid, who on seeing the police party tried to hide themselves in street which takes off from Martin Road. Due to suspicion the police detained and searched the said persons in presence of Mashirs and .30 bore pistol loaded with six rounds was recovered from the appellant for which he had no licence. He was arrested and the pistol was seized under Mashirnama. Thereafter, the S.H.0. Went to the police station and lodged report.
2. After necessary investigation, the appellant/accused was sent up before the Court. A formal charge was framed against him, to which he pleaded not guilty.
3. At the trial prosecution examined Mouladad Khan, Ballistic Expert P.W.1., he has produced his report as Exh.2-A, Mashir Sher Ali P.W.2, he has produced the Mashirnama of recovery of Exh.3-A, Inspector Muhammad Usman, he has produced his F.I.R. As Exh.4-A.
4. After close of the prosecution case the statement of the appellant was recorded in which he has denied the allegations. He has further stated that he was arrested by the police near Mubarik Masjid on the night of incident but nothing was recovered from him. He also examined his brother Syed Saghir Ahmed and one Shahid Ali in his defence. However, he did not examine himself on oath as envisaged by section 340(2), Cr.P.C.
5. The learned trial Judge, while taking into consideration, the evidence produced by the prosecution and the defence has convicted the appellant as described above. The present appeal is directed against the above judgment of conviction.
6. We have heard Mr. Shamshad Alam Lari, learned counsel appearing for the appellant, Mr. Shaukat H. Zubedi, learned AA: G. Appearing for the State, and have gone through the R&P of this case.
7. It was contended by Mr. Shamshad Alain Lari, learned counsel appearing for the appellant that the pistol does not fall within the ambit of the expression of `light or heavy automatic or semi- automatic weapon, such as Klashnikov, G-111 rifle or any other type of assault rifle', therefore, the case of the appellant was not covered by Schedule `C' added by Act V of 1990 and the learned Special Judge (Suppression of Terrorist Activities), Karachi, had no jurisdiction to try the appellant, and consequently the conviction and sentence was liable to be set aside. In this connection he has relied upon a Division Bench decision of this Court in C.P. No.D-522 of 1990 Muhammad Raza v.
8. Government of Pakistan and others C.P. Nos.D-686, 690 and 691 etc. Of 1990.
9. Mr. Shaukat H. Zubedi, learned A.A: G. Appearing for the State has conceded to the above legal position and has contended that in view of the above legal position the conviction and sentence of the appellant may be set aside, and the matter may be remanded back to the Court, having jurisdiction for deciding the same in accordance with law.
10. We have considered the contentions and have gone through the R&P of the case. Since a legal point has been raised with regard to jurisdiction of the learned trial Judge by the learned counsel appearing for the appellant, and in view of the decision which we propose to pass in this appeal, it is not necessary to consider the factual aspect of the appeal in detail. Suffice to say that according to the prosecution .30 bore pistol was recovered from the appellant. In support of his contention, the learned counsel for the appellant has relied upon a recent unreported decision of a Division Bench of this Court in Muhammad Raza v. Government of Pakistan C.P. No.D-522 of 1990 and number of other petitions in which the above point was directly in issue, and the jurisdiction of the learned Judge, Special Court, was challenged on the ground that the pistols were not covered by Schedule `C' added by Act V of 1990 and, therefore, the learned Judge, Special Court had no jurisdiction to try the petitioners. The Division Bench after taking into consideration various books on Forensic Science regarding nature of weapons and Dictionary meanings as well as the interpretation of words `such as' used in the, above amendment observed, `that in its mechanism of performance i.e. In its calibre, weight, length muzzle, magazine velocity, effective range and handling, a pistol whether it is .32 bore or not is different and distinguishable from Klashnikov G-III rifle, or any other type of assault rifle. All of whom belong to a sophisticated class `of rifle'. "It was, therefore, further observed, `that the pistols do not fall within the class of weapons namely Klashnikov, G-1I rifle or any other type of assault rifle".
11. We are in respectful agreement with the above decision of the Division Bench, and hold that the learned Judge, Special Court (Terrorist Activities) had no jurisdiction to try the appellant and, therefore, the appeal is allowed, conviction and sentence of the appellant is set aside, and the matter is remanded back to the learned District Magistrate, Karachi, having jurisdiction C to either proceed with the case himself or to transfer the same to some S.D.M. Having jurisdiction for decision in accordance with law. 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.