1. ' ABDUL RAHIM KAZI, J.---This appeal has been filed challenging the conviction passed and sentence awarded by Special Court (STA) Larkana/Sukkur at Shikarpur in Criminal Case No, 63/1993 under section 13(d), Arms Ordinance whereby the appellant was sentenced to undergo RI for 7 years and to pay a fine of Rs,5,000 or in default in payment of fine to suffer further RI for six months.
2. ' Briefly the facts of the case are that on 28-4-1993 S.H.O of Mouladad Police Station had lodged F.I.R. No,37 of 1993 at the said Police Station to the effect that on the said date he along with other Police force and members of the law enforcing agency had left the Police Station in their respective official vehicles for investigation of Case Crime No, 18/1993 and to arrest accused Mitho in that case from Village Sohno Khan Jakhrani. When they reached outside the said village at 5-30 a.m. They saw two persons emerging from their house and running towards northern side. They were surrounded and arrested by the police party. One of the accused is said to have been armed with a Klashnikov who disclosed his name as Allah Rakhio while the present appellant disclosing his name had surrendered a single-barrel gun along with 17 live cartridges and loose rounds of Klashnikov rifle. The police after arresting the accused and making usual investigation sent up the case for trial before the above said Special Court. The cases against the two culprits were tried separately.
3. ' As regards the present appellant a charge under section 13(d) of Arms Ordinance was framed to which the appellant pleaded not guilty and claimed trial.
4. ' The prosecution examined P.W. Ghulam Rasool who is A.S.I. And a Mashir of arrest and recovery.
5. The other witness examined by the prosecution is Nisar Ahmed S.H.O., Mouladad Police Station and also the complainant. The prosecution then closed its side. The statement of accused was recorded. Accused also examined D.W. Gul Bahar his brother. The trial Court after hearing the arguments was pleased to pass the judgment convicting and sentencing the appellant as stated above.
6. ' We have heard Mr. Azizullah K. Shaikh learned counsel for the appellant and Mr. Suleman Habibullah learned counsel appearing for the State.
7. ' Mr. Azizullah has assailed the judgment on various grounds. The first contention raised by the counsel is that the Special Court had no jurisdiction to try this case as the allegation against the present appellant is only that recovery of a single-barrel gun and cartridges of Klashnikov. He has further argued that the prosecution did not make any attempt to associate any private witness to act as Mashir. Lastly, the learned counsel has submitted that even the gun foisted on the present appellant was a licensed gun of his brother Gul Bahar.
8. ' Mr. Suleman Habibullah has opposed the above submissions of Mr. Shaikh and has submitted that F.I.R under section 13 (a) of Arms Ordinance was registered with regard to the present appellant and co-accused Allah Rakhio who were armed with Klashnikov. However, he was not able to answer as to why the two accused were tried separately and in such circumstance, as to how the Special Court will have the jurisdiction to try a case under section 13(d) which on the face of it would not fall within the definition of a scheduled offence. In these circumstances, it would be pertinent to reproduce clause "c" of the Schedule to the Suppression of Terrorist Activities (Special Courts) Act hereinafter referred to as the Act, as under:-- "(c) Any offence punishable under the Arms Act, 1878 (XI of 1878), or any offence punishable under any of the following sections for the West Pakistan Arms Ordinance, 1965 (West Pakistan Arms Ordinance No XX of 1965) namely sections 8, 9 and 10 if committed in respect of a cannon, grenade, bomb or rocket or a light or heavy automatic or semi-automatic weapon such as Klashnikov a G-III rifle or any other type of assault rifle."
9. The above definition will show that only those offences can be tried by the Special Court where such offence falls under sections 8, 9 and 10 of the Pakistan Arms Ordinance, 1965 if committed in respect of a cannon, grenade, bomb or rocket or a light or heavy automatic or semi-automatic weapon such as Klashnikov, G-III rifle or any other type of assault rifle. Certainly, a single-barrel gun or cartridges of a Klashnikov rifle would not fall under any of the above arms mentioned in this clause. Definition of arms is given in section 3 of the West Pakistan Arms Ordinance, 1965; clause A defines ammunition while clause B defines arms. A single-barrel gun and cartridges of course come within such definition but as discussed above, the same would not come within the definition of the weapons mentioned in clause "c" to the Schedule of the Act. In these circumstances we are of the view that this case is on different footing than the case of co-accused Allah Rakhio and had to be tried by an ordinary Court of a First Class Magistrate and not the Special Court constituted under the Act.
10. As regards the second point urged by the learned counsel for the appellant it may be observed that the present appellant as well as co-accused were arrested from village Sohno Khan Jakhrani at 5-30 in the morning on 28-4-1993. In this part of the province 5-30 a.m. Is Fajr prayers time and obviously there would be people moving about going to or returning from the mosque and any of them could have been associated as a witness or Mashir for the purpose of arrest or recovery of the weapon from the accused but no such efforts appear to have been made by the investigation authorities the S.H.O who was leading the police party states in his cross-examination that he had not informed anybody but had proceeded to arrest accused Mitho Khan. This itself goes to show that no effort was made by him to associate a private person in the case. No doubt a police officer can also be a competent witness and his evidence can be relied upon but it is established law that investigating or prosecuting agency has to make efforts to associate a private person to act as Mashir or witness and only if no such private person can be available than the I C evidence of a police officer can be taken into consideration. Reliance may be placed on the case of Yar Muhammad v. The State (1992 SCM R 96). In this view of the matter we have no hesitation to observe that the provisions of section 103, Cr.P.C. Have not been complied with in the strict sense thereof.
11. The third point urged by the learned counsel for the petitioner is that the gun allegedly recovered from the appellant is a licensed weapon of his brother who was subsequently examined as defence witness and had produced the licence. Even if it is held to be a licensed gun then also the possession of the said gun by the appellant would not absolve him from the alleged charge However, in view of our observations and findings on the first two points we accept this appeal, set aside the conviction and sentence awarded by the trial Court. The appellant shall be set at liberty if not required in any other case