' KHALIL-UR-REHMAN RAMDAY, J.---As is disclosed through FIR No,366 dated 28-8-1989 of Police Station Bahlik of District Faisalabad, Nusrat appellant was found in possession of a Klashnikov (Exh.P/1) alongwith forty-five bullets (Exh.P3/1-45) on 28-8-1989 at about 9-30 p.m. In the area of Chak No,429/GB falling within the jurisdiction of Police Station Bahlik. This F.I.R. Further divulged that on being questioned, the appellant could not produce any licence for keeping the weapon in question.
2. The appellant was consequently accused of the alleged commission of an offence punishable under section 13 of Ordinance XX of 1965 and since the weapon was allegedly a Klashnikov and since the trial of the same fell within the jurisdiction of the Courts constituted under the Suppression of Terrorist Activities Act, 1975, the appellant was tried by a learned Special Court under the Suppression of Terrorist Activities Act of 1975, at Faisalabad.
3. Through his impugned judgment dated 18-9-1990, the appellant was found guilty of the charge under section 13 of Ordinance XX of 1965 and was sentenced to six years' R.I. With a fine of Rs,10,000 or sufferance of one year R.I. In default of payment of this fine. The benefit of the provisions of section 382-B, Cr. P.C. Was also extended to the appellant.
4. It was, inter alia, vehemently argued by the learned counsel for the appellant that the trial held against him was a trial coram non judice as the weapon allegedly recovered from him was neither a Klashnikov nor an automatic or even a semi-automatic fire-arm and the learned Special Court had thus no jurisdiction to hold the trial against the appellant.
5. It was further submitted that an application to the effect had been presented before the learned trial. Court which was not even entertained and was returned to the appellant's counsel with certain derogatory remarks passed about him which even resulted in the passing of a resolution by the local bar with respect to the conduct of the learned trial Court.
6. It was further argued that there was nothing on record to establish that the weapon allegedly recovered from the appellant was a Klashnikov because none other than the two prosecution witnesses had so stated and these two P.Ws., namely, Hamidullah, DSP and Nazir (P.W.2) were no experts of fire-arms and their testimony thus to the effect that the weapon in question was a Klashnikov or that the same was even a fire-arm, could not be acted upon.
7. On an application made by the appellant which was not seriously opposed by the State, a Fire- Arm Expert was summoned as additional evidence. One Rashid Ahmad, an armourer of Faisalabad police was called upon to examine and to report about the weapon (Ex.P/1) which had been allegedly recovered from the possession of the appellant.
8. The said witness who claimed to be a qualified armourer from the EME Army Center at Quetta declared that the weapon in question was not a Klashnikov and further that the same was neither an automatic nor even a semi-automatic weapon. He claimed that the said fire-arm was an ordinary rifle.
9. This being so, the learned Special Court had no jurisdiction to try the offence allegedly committed by the appellant and it is accordingly, so held.
10. Consequently, this appeal is allowed and the impugned judgment together with the conviction and sentences recorded therein, against the appellant, are set aside.
11. Since the trial in question was held by a Court not competent to hold the same, therefore, there would be no bar on the appellant's trial afresh by a Court of competent jurisdiction.
12. This case together with the record shall be sent to the District Magistrate of Faisalabad for entrustment of the same to a Court of competent jurisdiction for a fresh trial in accordance with law.
13. The appellant has been in custody for 17 months and the offence alleged against him is punishable with 3 years. On an oral petition made by the learned counsel for the appellant, the appellant is admitted to bail in the sum of Rs,20,000 with two sureties each in the like amount to the satisfaction of A.C./Duty Magistrate, Faisalabad.
14. Before we part with this judgment we may add that the Courts of law are not to sit entirely unconcerned during the proceedings, like an unthinking statute. Nor is a Court holding a criminal trial expected to act only as a dummy or as a mere referee in a technical bout leaving it to the contestants to do what they like and not interfering unless the rules of the game were violated.
15. Administration of justice is primarily and essentially an obligation cast on the Courts of law constituted for the purpose. The Investigating Agency, the counsel, the parties and the witnesses before such Courts are mere instruments provided by law to the Courts for unearthing the truth and for reaching a correct and just decision. The Courts of law should not leave themselves to the mercy of the parties, the witnesses or the counsel but are required to actively participate in the proceedings to determine the truth. The powers conferred under section 540 of the Cr.P.C. And Article 161 of Qanun-e-Shahadat do not only empower the Courts to adopt such a course of action but in fact even oblige him to do the same. Reference may be made to All Nawaz Gardezi's case PLD 1962 Lahore 558.
16. In the present case no evidence had been led by the prosecution to prove that the item allegedly recovered from the appellant was a Klashnikov or an automatic or a semi-automatic weapon or even a fire arm at all. The same could well have been a toy-gun or an article not capable of being used as a firearm and thus not a fire-arm. The fact that the article in question is a fire-arm or a particular kind of a fire-arm can be proved only through the opinion of the experts. An ordinary police officer and in the present case the DSP who had allegedly recovered this gun and who had appeared at the trial to so depose, is not a qualified expert of fire-arms. Thus, his word of mouth would not ordinarily be sufficient to establish that whatever was recovered from the person of the accused was a fire-arm.
17. If the prosecution had failed to produce such kind of an expert and even if it be presumed that even the defence had not taken any objection to the same at the trial, this did not absolve the trial Court of its responsibility to unearth the truth and to do justice. Moreso, when the question went to the very root of the learned trial Court's own jurisdiction.
18. A copy of this judgment shall be sent to the learned trial Court, to the Home Secretary and the Inspector-General of Police for their information and guidance.