' QAZI MUHAMMAD FAROOQ, J.---On 18-10-1994 at about 4-30 p.m. a police party, headed by Fazal Muhammad Khan, S.H.O., Police Station Ouch, while performing special duty at Chakdara bridge stopped a Pick-up No, DR 4741 coming from Timergara and during the ensuing search, conducted on suspicion, recovered from its secret cavities five Klashnikovs, nine Chargers, 870 Cartridges of 7.62 bore and 3400 Cartridges of 3.3 bore. The arms and ammunition together with the vehicle were taken into possession and the driver of the vehicle namely Bakht Modin and two others named Wali Khan and Zahiruddin, who were occupying the front seat, were arrested. A Murasila was despatched to Police Station Ouch on the basis whereof a case was registered under section 19, Arms Act, section 5 Explosives Act read with Rules 109 Explosives Rules, 1940 and section 188, P.P.C.
2. The accused nominated in the F.I.R. Were tried by the learned Special Court, Dir at Samarbagh, constituted under the Suppression of Terrorist Activities Special Courts Act, 1975. The prosecution in order to prove its case, examined two witnesses Badshah Zamin F.C. No,927 P.W.1, one of the recovery witnesses, and Fazal Muhammad Khan, S.H.O., P.W.
2. When examined under section 342, Cr.P.C. Wali Khan and Zahiruddin denied the prosecution allegations and professed innocence but Bakht Modin confessed his guilt in most unequivocal and pronounced terms and exonerated his co-accused by taking the stance that being ordinary passengers they were innocent.
3. The learned trial Court placing implicit reliance on the statement of Bakht Modin under section 342, Cr.P.C. Acquitted Wali Khan and Zahiruddin, vide judgment dated 18-12-1995, and convicted and sentenced Bakht Modin as under:---
(i) 3 years' R.I. And a fine of Rs,2,000 or three months' further S.I. In default under section 19 of the Arms Act, 1878.
(ii) A fine of Rs,1,000 or one month S.I. In default under section 5 of the Explosives Act read with Rule 109, Explosives Rules, 1940.
(iii) A fine of Rs,500 under section 188, P.P.C.
4. The benefit of section 382-B, Cr.P.C. Was extended to the convict and the case property including Pick-up No, DR 4741 was confiscated to the State. Simultaneously, the convict was released on probation on furnishing a bond in the sum of Rs, one lac with two sureties to the satisfaction of the Probation Officer. Feeling aggrieved the convict has filed this appeal and along with it has submitted an application Criminal Miscellaneous No,21/96 to the effect that the Pick-up be returned to him against a bond. ?. The appellant was essentially convicted and sentenced on the basis of the plea of guilty contained in his statement under section 342, Cr.P.C., which is fully augmented by the prosecution evidence, therefore, in view of the provisions of section 412, Cr.P.C. The scope of this appeal is restricted to the extent or legality of the sentence.
6. The learned counsel for the appellant did not question the extent of sentence but assailed its legality on the following grounds:---
(i) Section 19 of the Arms Act, 1878 stood repealed by the Pakistan Arms Ordinance, 1965.
(ii) The offence under section 5 of the Explosives Act, 1884 and Rule 109 of the Explosives Rules, 1940 was not a scheduled offence within the contemplation of the Suppression of Terrorist Activities (Special Courts) Act, 1975.
(iii) The concerned public servant whose order had been violated had not made a report in writing as required under section 195 (1)(a), Cr.P.C., therefore, the learned trial Court was not competent to take cognizance of the offence under section 188, Cr.P.C. Reliance was placed on Jan Muhammad and 5 others v. The State 1995 M LD 1803.
7. The learned counsel representing the State, on the other hand, opposed the contentions in regard to the Explosives Act, 1884 and section 188, P.P.C. Rather half-heartedly. However, he contended with vehemence that the sentence awarded under section 19 of the Arms Act, 1878 was legal as the said Act was in force in the Malakand Division in its entirety and the provisions of the Arms Ordinance, 1965 were inapplicable as it had not so far been extended to the area.
8. The last two contentions raised by the learned counsel for the appellant have substance. The offence under section 5 of the Explosives Act, 1884 read with Rule 109 of the Explosive Rules, 1940 is indeed not a scheduled offence within the meanings of the Suppression of Terrorist Activities (Special Courts) Act, 1975 and the learned trial Court was not competent to take cognizance of the offence under section 188, P.P.C. For want of a complaint in writing of the public servant concerned as required under section 195 (1)(a), Cr.P.C. Which is worded thus:--- "(1) No Court shall take cognizance.---(a) of any offence punishable under sections 172 to 188 of the Pakistan Penal Code, except on the complaint in writing of the public servant concerned, or of some other public servant to whom he is subordinate."
' The sentences of fine awarded for these offences thus cannot be called legal and as such are liable to be set aside. However, the first and the main contention is devoid of substance
9. The Arms Act, 1878 was extended to the whole of Pakistan by, the Central Laws (Statute Reforms)
Ordinance, 1960, Subsequently, it was made applicable to the Tribal Areas by the Tribal Areas (Application of Acts) Regulation, 1965 which was promulgated on 10-9-1965 by the President of Pakistan in exercise of powers conferred by Article 223 of the 1962 Constitution which provided that the President may, with respect to any matter within the legislative competence of the Central Legislature, make Regulations for a Tribal Area. During those days the former States of Dir, Swat and Chitral had not been merged with Pakistan but were categorised as the. Tribal Areas of the Province of West Pakistan in the definition of "Tribal Areas" contained in Article 242 of the 1962 Constitution. The Arms Act, 1878 thus became operative in these furrier States by virtue of the Tribal Areas (Application of Acts) Regulation, 1965. Thereafter, on 15-8-1969 Dir, Chitral and Swat (Administration) Regulation, 1969 was promulgated by the Governor of the then West Pakistan as a result of which the administration of all the three States was taken over by the Governor and the functions of the Rulers were to be exercised by Officers appointed by the Provincial Government.
The existing laws and Regulations were protected by section 7 of the Regulation which reads as follows:--- "Continuance of laws.---Subject to this Regulation, all laws, including Regulations, Orders, Rules, Notifications and Customs having the force of law, with respect to any matter within the legislative competence of the Provincial Legislature, as were in force in the specified territories or any part thereof, immediately before the commencement of this Regulation shall, so far as applicable, continue in force, until altered, repealed or amended by the competent authority."
' The Arms Act, 1878 thus remained in the field in the erstwhile States of Dir, Chitral and Swat which are now included in the Malakand Division. It is true that the Arms Act, 1878 was partially repealed by section 29 of the Arms Ordinance, 1965, which was promulgated before the Tribal Areas (Application of Acts) Regulation, 1965, but the repealing provision is meaningless vis-a-vis the Provincially Administered Tribal Area namely Malakand Division in view of subsection (2) of section 1 which provides in explicit terms that the Ordinance extends to the whole of Pakistan except the Tribal Areas. Besides, it has not so far been extended to the Malakand Division. In this backdrop there is no difficulty in holding that the Arms Act, 1878 is in force in the Malakand Division in its pristine form.
10. It will be pertinent to point out that the question of partial repeal of the Arms Act, 1878 by section 29 of the Arms Ordinance, 1965, raised by the learned counsel for the appellant, was also agitated in Writ Petition No,373 of 1994 decided on 6-3-1996 and was resolved in the following, terms:--- "The foregoing discussion leads us to conclude that the Arms Act, 1878 in its entirety, unaffected and un amended by the Arms Ordinance is in force in the areas that formed part of the Tribal Areas as defined under Article 242 of 1962 Constitution which includes the District of Swat."
11. On facts and circumstances of the case the appellant was rightly convicted and sentenced under section 19 of the Arms Act, 1878 and the case property including the Pick-up, which was used for the commission of an offence, was also correctly confiscated to the State.
For the foregoing reason this appeal is partly accepted and while the conviction and sentence of the appellant under section 5 of the Explosives Act, 1884 read with Rule 109 of the Explosives Rules, 1940 and section 188, P.P.C. Are set aside his conviction and sentence under section 19 of the Arms Act, 1878 and confiscation of the case property, including Pick-up No, DR 4741, to the State are upheld. Criminal Miscellaneous No,21/96 stands dismissed.