1. ' AKHTAR ALI G. KAZI, J.---Appellant Muhammad son of Shah Ali Panhwar resident of Taluka and District Mirpurkhas has been convicted by Special Court Suppression of Terrorist Activities, Hyderabad. He has been sentenced to undergo R.I for six years for offence under section 5 of the Explosive Substances Act vide his judgment dated 10-1-1993. The appellant being dissatisfied with the abovesaid judgment and order of sentence has filed this appeal before this Court.
2. ' The prosecution case as stated by the complainant Manghi Khan. S.H.O. Taluka Police Station.
3. Mirpurkhas as stated by him is that on 24-4-1992 he had received a message from S.P. Mirpurkhas that a gang of Gul Hassan Panhwar dacoit was present near Dargah of Haji Pur and that he was sending other police force to him for conducting raid on the gang. Accordingly S.H.O. Town Police Station, Muhammad Qasim Ghori, Inspector Sher Khan, Muhammad Siddik Bhatti S.H.O., Mirpurkhas, Jaro Khan S.I.T.E. Police Station alongwith subordinate staff assembled at Taluka Police Station Mirpurkhas and at about 4-45 p.m entire police force left the police station in separate Mobiles after making entry No, 10 in the station diary when they reached the Dargah they parked their mobiles and surrounded the place for conducting raid which was about 3 acres. All of sudden the police party was fired upon from the side of jungle by the dacoits and in self-defence the police party also fired on the dacoits who were firing at them from the forest side. The firing continued for about 15-20 minutes and during the firing four persons from amongst the dacoits managed to run away who were identified by one A.S.I. Ramzan Ali to be Gul Hassan Panhwar, Kadir Bux Brohi, Sher Muhammad Makrani and Abdul Ghani. Khashkeli. The police however warned the remaining dacoits to surrender and as a result thereof the firing stopped and in all 8 dacoits were arrested. It is alleged by the prosecution that they secured from appellant and from one other co-accused Mir Muhammad rocket launchers. Accordingly police arrested all the 8 culprits including the present appellant Muhammad from whom they secured two 'Golas' of rocket launchers. The police prepared such Mashirnama regarding the arrest of the present appellant Muhammad and seven others and the recoveries of two 'Golas' (rocket launchers) from the present appellant and from one another co-accused Mir Muhammad. The police also secured 20 empties from the Wardat.
4. According to the police all the culprits including the present appellant had no licence for the arms secured from each of them. The accused were brought to the Police Station alongwith the recovered property and the complainant Manjhi Khan lodged the first information report on behalf of the State against the accused separately under the Arms Ordinance. It is the case of the prosecution that after recording the statements of the witnesses the police sent the 'Goias' secured from the present appellant and another accused Mir Muhammad to the expert for obtaining opinion, who opined that the recovered material were in fact rockets. The present appellant was challaned before the Court of Suppression of Terrorist Activities, Hyderabad for his trial under section 13-D of the Arms Ordinance on 13-51992.
5. ' After the challan the Special Public Prosecutor on 1-7-1992 moved an application before the Court to proceed against the appellant under section 5/6 of the Explosive Substances Act. The application of the Special Public Prosecutor was allowed by the Court and the trial Court framed the charge against the appellant on the same date under section 5/6 of the Explosive Substances Act and also recorded the plea of the appellant who pleaded not guilty on the same date.
6. ' During the trial the prosecution.Examined three witnesses before the Court, namely Sub-Inspector of Police Abdul Rehman who had examined the rocket launchers, Muhammad Siddiq, S.I.P. Who had acted as Mashir of the recoveries and the arrest of the appellant and S.H.O. Manjhi Khan who had lodged the report on behalf of the State and conducted the entire investigation and challaned the accused in the Court of Special Judge Suppression of Terrorist Activities, Hyderabad.
7. ' The statement of the appellant was recorded under section 342, Cr.P.C. Who denied the allegation levelled by the prosecution. He further stated that on 19-8-1991 they had lodged a report against the police of Taluka Police Station, Mirpurkhas regarding the misuse of their powers and frequent arrest of the innocent villagers of their community. He further stated that such case was pending before the Special Judge Anti-Corruption, Hyderabad and he was a witness in that case. He also produced certain copies of documents to show that they had complained against the police.
8. ' The appellant examined one Haji Abdul Razak in his defence and according to him the police had arrested appellant Muhammad from his house in the morning at about 10-00 a.m.
9. ' We have heard learned counsel for the appellant and also the learned counsel for the State Mr. Sarwar Khan. We have also gone through the entire evidence which has been recorded at the time of trial and also gone through the entire judgment of the learned trial Judge.
10. ' The main contention raised by the learned counsel for the appellant is that the appellant was challaned before the S.T.A. Court for offence under Arms Ordinance and not under the Explosive Substances Act. The learned counsel further contended that the Special Public Prosecutor, S.T.A.
11. Court, Hyderabad on 1-7-1992 submitted an application on behalf of the State requesting the Court to frame the charge against the appellant under section 5/6 of the Explosive Substances Act and not under section 13-D of the Arms Ordinance. According to him this application was allowed by the learned Judge on 1-7-1992 although till that stage no consent from the Government for the prosecution of the appellant under section 5/6 of the Explosive Substances Act was obtained. It is even mentioned in the application of the Special Public Prosecutor that the police was directed by the Special Public Prosecutor to obtain consent from the Home Department. Thus, it is clear that the charge framed by the Special Court Suppression of Terrorist Activities, Hyderabad was framed on 1-7-1992 at the request of Special Public Prosecutor and up to that stage there was no consent received from the Government of Sindh for prosecution of the present appellant under section 5/6 of the Explosive Substances Act. According to the section 7 of the Explosive Substances Act it is necessary to obtain the consent of the Provincial Government for the trial of any accused under the Explosive Substances Act.
12. ' The main question in this appeal is as to from what stage the trial in the criminal case starts as the word "trial" has not been defined anywhere. In a criminal case framing of a charge involves judicial decision taken by the trial Court. It forms the basis of trial and the accused has to be given notice of it to defend himself. The framing of charge by the Court thus also call for the application of mind to the facts placed on record by the prosecution on the basis of investigation or on the facts collected in an enquiry before taking decision thereon. Even section 265-D of the Cr.P.C.
13. Clearly mentions that the Court can frame a charge if after perusing the police report or as the case may be the complaint and other documents and statements filed by the prosecution the Court is of the opinion that there is a ground for proceeding with the trial of the accused, it shall frame in writing a charge against the accused. Next stage after framing of the charge in a criminal case is recording of plea of the accused and if the accused pleads guilty the Court after recording the plea may in its discretion convict him thereon. Although the word "charge" has also not been clearly defined yet it has always been meant that when the Court decides to commence the trial the accused shall appear or to be brought before it and the charge is read out in Court and explained to him so that he can defend himself thus it is clear that framing of charge means that the trial of the accused has started. It has been held in AIR 1943 Nagpur 36 that the trial begins in a case exclusively triable by a Court of Session only after the charge is framed by the committing Magistrate and according to the abovesaid judgment in a warrants case the trial begins when the accused is called upon to plead to the charge and in a summons case the trial may be said to begin when the accused is brought before the Magistrate. Although the Criminal Procedure Code has now been amended yet the principle that the trial begins in a Court after the charge is framed remains the same. The procedure applicable to the proceedings before the Court of Special Judge Suppression of Terrorist Activities is the same which is applicable to the Sessions trial.
14. The learned counsel appearing on behalf of the State Mr. Ghulam Sarwar Khan A. A.-G. Placing reliance on the above judgment has conceded that the trial of the accused starts from the stage of framing of the charge. He has further conceded that as the record shows the charge against the present appellant was framed on 1-7-1992 and the plea of the appellant was also recorded on the same date whereas the consent of the Government to try the appellant under section 5/6 of the Explosive Substances Act by the Government was given under section 7 of the Explosive Substances Act, 1908 on 25th July, 1992, as such we are of the view that the trial of the appellant under section 5/6 of the said Act by the Court commenced prior to the consent of the Government was obtained as such the proceedings were illegal, we set aside the conviction and sentence of the present appellant. However, we remand the case to the same Court for retrial of the appellant on the basis of evidence produced by the prosecution after framing proper charge. The learned counsel for the State Mr. Ghulam Sarwar has further stated that the accused could have been tried by the Special Judge S.T.A. Under the Arms Ordinance also as the weapon which was recovered from the present appellant comes within schedule of offences triable by the Court of Special Judge Suppression of Terrorist Activities. At present since the consent of the Government has also been obtained we leave it open to the trial Court to frame the charge against the appellant for the purpose of trial on the basis of the material placed before it as it deems proper.
15. ' We had disposed of this appeal by a short order on 22-9-1993 and these are the reasons for the same.