' It has been contended by the learned counsel for the petitioner that the petitioner was arrested in case F.I.R. No,118/89 registered on 30-3-1989 at Police Station Sadar Kamonke District Gujranwala wherein the offence under section 17/6/79 Hudood Ordinance was reported. It has been further submitted that during the investigation of the said case klashnikov was allegedly recovered from the petitioner and case F.I.R. No,151/89 was registered at Police Station Wandho on 30-4-1989.
2. The challan of case F.I.R. No,118/89 of Police Station Sadar Kamonke was submitted before the Judge, Special Court for Suppression of Terrorist Activities, Gujranwala Division where the application by the present petitioner was made for remitting the challan back to ordinary Court having the jurisdiction in the matter on the ground that the petitioner had been acquitted by the said Court in case F.I.R. No,156/89 of Police Station Saddar Kamonke registered under section 13- A/20/65, Arms Ordinance and the recovery of klashnikov from his possession was disbelieved. The said application was dismissed on 20-2-1995 by Judge, Special Court for Suppression of Terrorist Activities, Gujranwala Division. The said order has been challenged vide present writ petition.
3. Learned counsel for the petitioner contends that the recovery of klashnikov, having been disbelieved and the Court of competent jurisdiction having acquitted the petitioner from the said offence, which had made case F.I.R. No,118/89 of Police Station Saddar Kamonke triable by Judge Special Court for Suppression of Terrorist Activities, the said Court had no jurisdiction to try the case as the Schedule to Act, 1975 was no more applicable in the present case.
4. Case F.I.R. No, 156/89 was registered on 30-4-1989 under section 13-A/20/65 and in the said case an unlicensed klashnikov was got recovered by the present petitioner, as alleged. Even if the petitioner was acquitted in the said case the same was not relevant for the purposes of determining the forum for the trial of case F.I.R. No,118/89; a case of robbery which was alleged to have been committed wherein a klashnikov was alleged to have been used for the commission of the offence, is to be seen with reference to Schedule under section 2(b) of the Suppression of Terrorist Activities (Special Courts) Act, 1975. In case F.I.R. No,118/89 it was specifically alleged that a culprit, whose description was given therein, was armed with a klashnikov and he aimed at the P.Ws. With his klashnikov while making the complainant to vacate his seat and then committed the offence with the force of arms as all the accused persons were carrying Arms as described in the F.I.R. The Schedule to Act, referred supra was applicable in the case as the robbery was committed by using klashnikov for the commission of the said D offence and as such was exclusively triable by the Special Court. Section 4 of Act, 1975 reads as under:- "4. Jurisdiction of Special Court.--- (1) Notwithstanding anything contained in the Code, the scheduled offences shall be triable exclusively by the Special Court:"
5. The factum of recovery of a klashnikov at the instance of the petitioner was entirely a separate transaction. It is however, a fact that case F.I.R. No,156/89 was registered on 30-4-1989 at Police Station Kamoki under section 13-A of Ordinance No,XX of 1965. This recovery was also a corroborative piece of evidence, to be produced at the time of trial of the case for the alleged offence for committing robbery. The acquittal of the petitioner in case F.I.R. No,165/89, offence under section 13-A of Ordinance No,XX of 1965, was based on the evidence recorded during the trial of the said case wherein the charge was under section 13-A of the Ordinance supra and as such the acquittal in case has not rendered the scheduled offence to be one excluded from the Schedule of the Act supra.
6. In view of the above this writ petition has no .Force and the same is dismissed in limine.
7. Before parting with the judgment in the writ petition we are constrained, after perusal of the judgment rendered by Judge Special Court (Suppression of Terrorist Activities), Gujranwala Division, Gujranwala vide which die petitioner was given the benefit of doubt and was acquitted in case F.I.R. No, 156/89 of Police Station Sadar Kamoki under section 13-A of the Arms Ordinance XX of 1965 that judgment, dated 16-10-1990, was open to Exception.
8. The Special Judge while delivering the judgment omitted to see the Provisions of section 8 of Act of 1975, which reads as under:-- "8. Burden of proof.--- Where any person accused of having committed a scheduled offence is found to be in possession of, or to have under his control, any article or thing which is capable of being used for, or in connection with, the commission of such offence, or is apprehended, in circumstances which lead to raise a reasonable suspicion that he has committed such offence, he shall be presumed to have committed the offence unless he can prove that he had not in fact committed the offence."
9. The petitioner who was accused of having committing a Scheduled offence as reported vide case F.I.R. No,118/89 of Police Station Sadar Kamoki and was found in possession of a klashnikov which he had led to be recovered and which was capable of being used for or in connection with the commission of robbery as reported vide case F.I.R. No,118/89 mentioned above was to be presumed to have committed the offence unless he can prove that he had not in fact committed the offence. The presumption of innocence of the accused was negated under the said provisions and after the alleged recovery of klashnikov it had become rather obligatory on the part of the accused to prove his innocence. It was only thereafter that the prosecution who could be assumed to have rebutted, or not, the onus of proof laid and/or proved by the accused person.
' In view of the above, we suo motu exercise our powers under section 435, Cr.P.C. And call for the record of case F.I.R. No,156/89 under section 13-A of Arms Ordinance XX of 1965 of Police Station Saddar Kamoki, tried by Judge, Special Court (Suppression of Terrorist) Activities, Gujranwala and acquitting the petitioner on 10-6-1990, to examine the same for the purpose of satisfying ourselves as to the correctness, legality or propriety of the findings of acquittal recorded by the said Judge.