1. ' S. DEEDAR HUSSAIN SHAH, J.---The above criminal appeals and the reference for confirmation of death sentence arise out of one and the same judgment and, therefore, the same are being disposed of by this single judgment.
2. ' The facts of the prosecution case are that on 3-4-1995 complainant Ghulam Nabi lodged report with Police Station Pir-jo-goth being Crime No,18 of 1995 for offence punishable under section 17/4 of Offences Against Property (Enforcement of Hudood) Ordinance, 1997. According to complainant he along with his brother Ghulam Rasool and Muhammad Pathan were going to Pir-jo-goth on bicycles. When they reached at the link road at about 9-30 p.m. Near the house of Shahzado Phulpoto, they saw five persons standing with guns. Out of them two were standing on the eastern side of the road and the rest were on the road P.W. Pathan flashed the torch light on them and identified them as Daud, Sikandar and Sadar alias Sadroo whereas remaining two culprits were unknown whose faces were clearly seen by the complainant. According to prosecution case the culprits standing on the road, stopped their cycles. Daud alias Daoo and Sikandar pointed their guns at them. Accused Sikandar took out Rs,200 from pocket of complainant and also removed his watch. Accused Daud grappled with Ghulam Rasool in order to rob him whereupon Ghulam Rasool held barrel of gun of Daud and caught him as well. Daud raised cries where after accused Sadar fired at Ghulam Rasool by keeping his gun on his chest. Thereafter, accused decamped towards westert side. On the cries and gunshot reports persons standing at nearby places, namely, Ghous Bux and Allah Bux who were on rotation of water, came there. They also identified the above culprits. Subsequently Ghulam Rasool expired due to injuries. Police after registration of F.I.R., started investigation and after finalisation of the same, submitted charge-sheet before the Court of Special Judge S.T.A. Sukkur Division Khairpur against the appellants and co-accused Sikandar to face the trial.
3. ' The learned Special Judge S.T.A. Khairpur framed charge for offence punishable under section 396 read with 149, P.P.C., to which the accused pleaded not guilty and claimed to be tried.
4. ' During the trial legal objections were raised before the Trial Court that it lacked jurisdiction to try the case and such an application, dated 31-1-1996 was filed before the Court. Instead of deciding that application and passing orders thereon, the Trial Court commenced the further proceedings and examined complainant Ghulam Nabi, P.W. Muhammad Pathan, P.W. Ghous Bux, P.W. Wahid Bux, S.H.O. Nazar Hussain Shah, Dr. Abdul Ghaffar, Tapedar Kadir Bux. P.W. Manzoor Hussain, P.W.
5. Sadoro and P.W. Iqbal Ahmed.
6. ' Appellants were examined under section 342, Cr.P.C., wherein they claimed to be innocent and further claimed to have been falsely implicated in the case. They did not examine themselves in disproof of the prosecution allegations and also led no defence.
7. ' The learned Trial Court after hearing parties to the conclusion of the trial found the appellants guilty for offence punishable under section 396 read with section 149, P.P.C., and sentenced them to death. Learned Trial Court also imposed a fine of Rs,50,000 on each of the appellants out of which half was to go to heirs of the deceased and the remaining half was ordered to be credited in the Government treasury. The learned Trial Court however acquitted accused Sikandar vide same judgment, dated 21st of May, 1996. Being aggrieved and dissatisfied appellants preferred these appeals. The Trial Court has also sent references for confirmation of death sentence.
8. ' At the very outset of his arguments Mr. Ali Aslam Jafri stressed that learned Trial Court while framing the charge under section 396, P.P.C., did not take into consideration that under the Schedule provided under section 2(b) of the Act, the offence under section 396, P.P.C., is triable by the Special Court only if a cannon, grenade, bomb rocket or an arm of prohibited bore is used for, or any public property is stolen, destroyed or damaged in the commission of such offence whereas in the present case it is admitted position in the F.I.R., 161 and 164, Cr.P.C., statements that the culprits were all armed with guns. The gun is not a weapon which can bring the case within the ambit of clause (a)(iii) of the Schedule to the Act. According to Mr. Jafri recovery of Kalashnikov from one of the accused after about 3 months of the occurrence would not empower the Special Court to try the case and punish the accused accordingly. He urges that the complainant and P.Ws. At later stage changed their mind and set up new story of some of the accused being armed with Kalashnikovs to see that the accused are tried by the Special Court S.T.A. It was also contended that even otherwise the point of jurisdiction was to be determined by the Trial Court itself but when an application to that effect was moved by the defence, it was unfair for the lower Court to commence with the Trial Court without passing orders on the application. On that premises he termed the trial s coram non judice.
9. ' Mr. Sher Muhammad Shar learned A.A.-G. And Mr. Nasrullah Siddiqui learned counsel for the complainant do not dispute the correctness of the facts stated by learned counsel for appellants and they also, after going through the material available before the Court raised no objection to the acceptance of appeals and setting side of judgment, conviction and sentence awarded by the Trial Court. They further submitted that the case be remanded to Court of ordinary jurisdiction for retrial according to law.
10. ' We have gone through the material placed with the case. Admittedly in the F.I.R., sections 161 and 164, Cr.P.C., statements, it is consistently mentioned that the culprits carried guns at the time of occurrence and no firearm mentioned in the schedule to the Act was carried by any of the accused. In order to appreciate the crucial point of jurisdiction, we feel that it would be advantageous to quote the relevant column of the Schedule annexed to the Act which reads as under:- "(a) Any offence punishable under any of the following sections of the Pakistan Penal Code (Act XLV of 1860), namely sections 392, 393, 394, 395, 396, 397, 398 and 399, if a cannon, grenade, bomb, rocket or an arm of a prohibited bore is used for, or any public property is stolen, destroyed or damaged, the commission of the offence."
11. ' In this case, none of the weapons of the description specified above is used in the commission of the offence. The guns allegedly carried by the accused are also not covered by the term 'prohibited bore'. According to the deposition of Investigating Officer Nazar Hussain Shah, he arrested the accused three months after occurrence and at that time one of the appellants, namely, Sadar had a Kalashnikov and bullets which were recovered from him. Accused Badshah had rifle, Sikandar an Daud had guns and Roshan was having a revolver. The recovery of one. Kalaslmikov from appellant Sadar may render him liable to prosecution under appropriate provisions of law but does not nullify the earlier consistent version of the prosecution witnesses that at the time of commission of this offence, he was armed with a gun. We feel that the Trial Court has not given due consideration to the provisions of the Act and the Schedule and has fallen into error by assuming the jurisdiction. The complainant and P. Ws. Changed their earlier version regarding the weapons carried by the accused, as they thought that through this special forum they will be able to prove their case.
12. The learned A.A.-G. And the counsel for complainant both have raised no objection if the appeals are accepted and the case is remanded for fresh trial.
13. ' For the above reasons we accept the appeals, set aside the convictions and sentences awarded to the appellants. The references for confirmation of death sentence are declined. The case is remanded back to the learned Sessions Judge Khairpur who shall try it himself in accordance with law.