1. ' This criminal appeal is preferred by the appellant being aggrieved with the judgment dated. 11-9- 2001 passed in Sessions Case No,90 of 2001 State v. Azam whereby the appellant was convicted under section 7(c) of the Surrender of Illicit Arms Act, 1991 and thereby he was sentenced to suffer R.I. For four years by extending the benefit of section 382-B, Cr.P.C. By the trial Court. The appellant has challenged his conviction by filing the present appeal against the said judgment.
2. ' The said appeal was admitted on 18-9-2001 and by consent of the learned counsel for the respective parties is being disposed of finality.
3. ' The brief facts as depicted in the F.I.R. Are that on 26-7-2001 the complainant S.H.O. Alongwith his subordinate staff left the Police Station vide Entry No,28 at about 0-00 hours (12 night) for patrolling various places at about 1-35 a.m. On 27-7-2001 when the police party arranged for Nakabandi at Old Railway Crossing. At about 1-45 a.m. One person arrived, the police party challenged the culprits who tried to run away but he was apprehended and he disposed his name to be Azam. The complainant conducted the search of the accused/appellant in presence of H.C. Munawaruddin and P.C. Nazir Ahmed the police party recovered one pistol with magazine containing six bullets in working condition. The accused/appellant was enquired about licence to which he failed to produce the same. The appellant was arrested after effecting the recovery and mashirnama was prepared in presence of the mashirs and the appellant/accused and the case property were brought at the Police Station and the F.I.R. Registered on behalf of the State.
4. ' After due investigation of the case, the challan of the case was submitted in the Court of Sessions Judge, Naushahro Feroze and the same was transferred in the Court of Additional Sessions Judge, Naushahro Feroze of disposal according to law.
5. ' The trial Court proceeded with the case and examined complainant Liaquat Ali Abbasi Exh.7 and H.C. Munawaruddin Exh.5., and the prosecution closed its side. The mashirnama of arrest and recovery was also exhibited as Exh.6 and Entry of arrival at Police Station as Exh.10. F.I.R., was produced as Exh.9. The statement of, the appellant was recorded by the trial Court under section 342, Cr.P.C. And the accused denied the allegation of the prosecution and pleaded his innocent and further alleged that he has been falsely implicated in this case due to enmity with the police as he was arrested by the police and huge illegal amount was demanded which he failed to pay therefore, he has been booked in this case. However, the appellant did not examine himself on oath nor he examined any witness in his defence. Consequently the trial Court convicted the appellant as stated above.
6. ' The learned counsel for the appellant has urged that the impugned judgment of the learned trial Court is against the law, facts; natural justice, equity and it does not inspire confidence and without examining the legal position. The trial of the accused/applicant has been conducted in hasty manner. The learned counsel for the applicant has also raised the venue of the trial before the learned 1st Additional Sessions Judge, Naushahro Feroze. The learned counsel for the appellant has relied upon the decision passed in Criminal Bail Application No, S-561 of 2001 in the case of Shaman v. State passed by High Court of Sindh Circuit Court, Larkana, where 10 bail applications were moved in an offence under section 7(c) of the Surrender of Illicit Arms Act, 1991 and the Hon'ble Court had observed that the Sessions Court has no jurisdiction to try these matters and the orders passed by the trial Court were set aside with the observations that the applicants may apply for bail by filing fresh bail applications before the respective trial Courts for seeking the relief as the offence under which the applicants were tried are not triable by the Court of Sessions. It will be advantageous to reproduce the relevant sections 1, 4 and 6(c) of the Surrender of Illicit Arms Act, 1991 as under:-- "Section 1 Short title, extent and commencement.--(1) This Act may be called the Surrender of Illicit Arms Act, 1991.
(2) It extends to the whole of Pakistan.
(3) It shall come into force in such area and on such date as the Federal Government may, on recommendation of the respective Provincial Government, by Notification in the official Gazette appoint; and different date may be so appointed in respect of different areas."
7. ' Section 4. Surrender of illicit arms.--(1) All persons in possession of control of any illicit arms shall surrender, such arms within such time as is notified by the Federal Government to the Deputy Commissioner, Assistant Commissioner or officer-in-charge of a police station within whose jurisdiction such persons ordinarily reside or to such other authority as may be specified by. The Federal Government by Notification in the official Gazette.
8. ' Section 6. Publicity for surrender of illicit arms.--(1) The Federal Government and the Provincial Government shall give vide publicity to the provisions of this Act on the media including television, radio, National and Regional Press Urdu, English and Regional languages or by any other mode as may be prescribed.
(2) There shall be publicity displayed a countdown of every expired day of the period allowed for surrender of illicit arms under this Act and number of days left for such surrender. Section 7.
9. Punishments.--(1) Whoever contravenes the provisions of section 4 or section 5 or fails to surrender illicit arms shall."
(a) ..
(b) .
(c) in respect of illicit arms defined in sub clause (v) of clause (a) of section 2, be punished with imprisonment for a term which may extend to fourteen years but shall not be less than three years, having regard to the antecedents of the accused.
10. (2)
(3) ..
11. ' In view of the promulgation of the above Act further steps were taken to promulgate the notification under subsection (3) of section 1 enforcing the Act in a Province on the specific date and consequently the Ministry of Interior and Narcotics Control (Interior Division) issued the Notification on 15th June, 2001. The relevant notification is also produced as under:- "MINISTRY OF INTERIOR AND NARCOTICS CONTROL (Interior Division)
12. ' Notification ' Islamabad, the 15th June, 2001. S.R.O. 108 (KE), 2001.
13. ' In exercise of the powers conferred by subsection (3) of section of the Surrender of Illicit Arms Act, 1991 (XXI of 1991) the Federal Government on the recommendation of the respective Provincial Government, is pleased to appoint the dates specified in column (3) of the table below to be the dates on which the said Act shall come into force in the areas specified in column (2) thereof.
14. TABLE 270 THE GAZETTE OF PAKISTAN, EXTRA.
15. ' S.No,Area Dates on which Act XXII of 1991 shall come into force ' The whole of Province of Sindh 29th June, 2001.
16. AMIR KHAN WAZIR Section Officer (Arms):"
17. ' By issuing such notification in respect of this Act, the Federal Government is required to issue Notification under section 4 of the Act by specifying the time and the authority on which before whom the illicit arms are to be surrendered and in view of such Act under section 6 wide publicity of the ingredients of the notification under section 4 is to be made by the Federal Government and if the above required is not made by the competent Authority then the provisions of section 7(c) of the Act cannot be invoked.
18. ' The surrender of Illicit Arms Act, 1991 is a dormant piece of legislation and it will come into force only after a notification in terms of section 4 of Surrender of Illicit Arms Act, 1991 is issued and published in official Gazette then the provision of section 7(c) of the said Act can be invoked. The relevant Paras. 6 and 7 of the order, dated 19-9-2001 passed by the Circuit Bench is reproduced as under:-- "6. Learned counsel appearing for the State informed the Court that they had by letter, dated 14th of September, 2001 to the Secretary Law, Province of Sindh ascertained about the notification under section 4 and he orally informed them that no such notification is available with his department.
19. Only enquiry, my learned brother Fakir Muhammad Khokhar, J. The Secretary of Law, Ministry of Justice, Government of Pakistan, Islamabad also confirmed the non-issuance of notification under section 4 of the Act.
7. The sum up is that in the absence of a notification under section 4 and wide publicity as envisaged in section 6 no case under section 7 of the Act can be registered against the applicants.
20. It appears that the Government functionaries treated the Notification No:108 (KE) 2001, dated 15th June, 2001 issued under section 1 (3) of the Act as a notification under section 4 and registered cases under, 7(c) with effect from 20th June, 2001. The maximum sentence under section 7(c) is 14 years, therefore; the challans were submitted by the police in the Court of Sessions."
21. ' The learned State Counsel has conceded the legal position and submits that the judgment passed by the trial Court be set aside and the case be remanded to the Court having jurisdiction as the above mentioned in the F.I.R. Will fall under the provisions of Arms Ordinance, 1965 and prosecution has wrongly applied section 7(c) of the Surrender of Illicit Arms Act, 1991.
22. ' In view of the legal position placed by the learned counsel and supported by the State Counsel and there is judgment of the Circuit Bench, dated 19-9-2001 that trial under section 7(c) of the Act cannot be held by the Sessions Court as no notification under section 4 of the said Act was issued by the competent Authority and the trial has become coram non judice before the learned Additional Sessions Judge.
23. ' The Hon'ble Supreme Appellate Court has already held in the case of Sh. Muhammad Qaiser v. The State reported in 1994 PCr.LJ 88. Concluding para. Is reproduced as under:- "2. There is nothing on the record to show that the illicit arm and ammunition recovered from the appellant were the same which he had failed to surrender during the period notified .By the Government under section 4 of the said Act. It was the necessary ingredient of section 7 and since it was not proved, the conviction and sentence of the appellant are not sustainable. His appeal, is therefore, accepted, his conviction and sentence are set aside and he is acquitted. He should be set at liberty if not required in any other case."
24. ' There is another case of Hon'ble apex Court of Hakeem Inayatullah v. State reported in 1993 PCr.LJ 1010 (S.A.C). The relevant para. Is reproduced as under:- "2. The appeal can be accepted on the short ground that no evidence was led by the prosecution to prove that the gun recovered from the possession of the appellant was the same which he had in possession and had failed to surrender on or before 31-7-1991, the date specified by the Government for the surrender of illicit arms. This was a condition precedent for his conviction and it was not satisfied."
25. ' There is another authority in case of Hussain Ahmed v. The State reported in 1992 M LD 1618.
26. In view of the dicta laid down in the above authorities, I am of the view that in absence of notification as required to be pronounced by the competent Authority under section 4 of the said Act and the trial before the learned Additional Sessions Judge was without lawful authority and the F.I.R. Registered against the appellant be treated as registered under the provisions of Arms Ordinance, 1965 and the appellant is to be tried by the Court having jurisdiction as the Sessions Court has no jurisdiction to try these matters. Therefore, the sentence and conviction, awarded by the trial Court are set aside. The Additional Sessions Judge, Naushahro Feroze is required to forward this case to the Court having jurisdiction where applicant may apply for bail for filing fresh bail application, therefore, the appeal is allowed. The appellant may approach the trial Court for further adjudication of the case. The R&P of the case be returned forthwith, C.M.A. 1728 of 2001 stands disposed of as the whole appeal stands disposed.