1992 P Cr (PLP)

SAJJAD AHMAD SIPRA, J.‑‑‑ The present appeal has been preferred against the judgment, dated 26‑9‑1991, whereby Ch. Ghulam Sarwar, Judge, Special Court No.IV Suppression of Terrorist Activities Lahore Division convicted the appellant under section 13 of the Arms Ordinance. 1965, and sentenced him to 2 years' R.I. and a fine of Rs.1,000 or in default to undergo further R.I. for one yeas.

2. The case against the appellant was that on 6‑2‑1991, on receipt of secret information, Ghulam Hussain Inspector, alongwith Nazir Ahmad A.S.I. and others at 3‑45 p.m. raided Diyal Singh College Hostel and found Liaqat Hayat accused present in Room No.5. On his personal search he recovered a mouzer/.30 bore pistol consisting of 5 bullets. On further search of that room, 80 bullets of Klashnikov were recovered from underneath the bed, lying in that room, which he took into possession vide memo. Exh.P.C. As he failed to produce a valid licence for keeping these incriminating articles in his possession, complaint, Exh.P.B., was drafted and sent to the police for the registration of a case against him. He also prepared the challan to submit in the Court.

3. At the trial, the accused was charged for offence under section 13 of the Arms Ordinance, 1965 but he pleaded not guilty. In his statement under section 342, Cr.P.C. professing his innocence, he claimed to have been falsely involved in the case at the instigation of Abid Chaudhry Group, he being of Arshad Chaudhry Group. To support his plea that room No.5 of Diyal Singh College Hostel, Lahore, was never allotted to him, he produced Abdul Hamid, a Chaukidar of that Hostel, in his defence, as D.W.1.

4. We have heard the learned counsel for the appellant and the State and perused the record with their assistance.

5. It was contended on behalf of the appellant that as a non‑prohibited bore pistol was alleged to have been recovered from his possession, therefore, his trial by the Special Court, constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975, was without jurisdiction. In this respect, it was pointed out, that he was charged as follows:‑‑‑ "That on 6‑2‑1991 you were found in possession of one pistol .30 bore, 80 bullets of klashnikov rifles and 5 bullets of said pistol while you were present in Room No.5 of Diyal Singh Hostel, Lahore. You could not produce any valid licence for keeping the same."

6. We have noted that the charge was in respect of the pistol .30 bore and not of a prohibited bore and furthermore that the fire‑arm in question was produced in the Court on 2‑12‑1991 in pursuance to the order passed in Criminal Miscellaneous No.1 of 1991, and the Court had duly noted in its order of the said date as follows:‑‑ "The weapon has been produced. 1t has the inscription of a `Mouzer Made in China'. It is a single‑shot pistol, having no automatic device."

7. Therefore, the contentions of the learned counsel for the appellant that the alleged recovery of pistol was not that of a prohibited bore and as such was not covered under the provisions of the scheduled offences exclusively triable by the Special Court, constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975, and as such the learned trial Court had no jurisdiction to try the appellant in pursuance to the pistol allegedly recovered from the appellant. In addition thereto, we have also noted, as pointed out by the learned counsel for the appellant, that there is no evidence whatsoever on the record to prove that the room wherefrom 80 bullets of klashnikov rifle had been recovered, was allotted to the appellant or was in his possession or that the recovery of the said bullets had taken place on the pointing out of the appellant. In fact, the case of the prosecution was that the said 80 bullets of klashnikov rifle were recovered on the search of room No.5 of Diyal Singh College Hostel. Therefore, the appellant cannot be charged with the illegal possession of the said 80 bullets.

8. The contentions raised on behalf of the appellant, stated above, could not be refuted on behalf of the State.

9. Therefore, in pursuance to the above discussion, we allow the present appeal and set aside the impugned judgment. Resultantly, the appellant stands acquitted of the offence charged. He shall be released forthwith, if not required to be detained in any other case. N.H.Q./L‑9/L? Appeal allowed.