1993 P Cr (PLP)

MUHAMMAD MUNIR KHAN, J.

These five Criminal Appeals Nos.20 of 1991, 66 of 1991, 138 of 1991, 155 of 1991 and 171 of 1991 arise from the judgments of Presiding Officers Special Courts (Suppression of Terrorist Activities) Lahore, Faisalabad and Gujranwala, whereby they convicted the appellants namely Muhammad Walayat on 23-12-1991, Abdus Sattar on 20-1-1991, Muhammad Yousuf on 13-1-1991, Riasat Ali on 17-2-1991 and Basia Khan on 20-2-1991 under section 13 of the Arms Ordinance, 1965, on the charge of keeping with them unlicensed sten-gun/klashnikovs on 28-12-1989, 7-3-1990, 13-1-1990, 19-8-1989 and 4-1-1990, respectively, and sentenced them to various terms of imprisonment and different amounts of fine. Since common question of law relating to the jurisdiction of the Special Courts to try and convict the appellants on the charge of keeping unlicensed step-gun/Klashnikoves has arisen in these appeals, so we propose to dispose of them through this single judgment.

2. After hearing the learned counsel for the parties, we feel persuaded to set aside the convictions and sentences of the appellants for lack of jurisdiction of the Special Courts to try them for the offences with which they were charged, so we need not set out the facts in detail and enter into the merits of the case.

3. The learned counsel appearing for the appellants relied on cases of Muhammad Asif v. The State 1989 P Cr. L J 1310, Muhammad Adam alias Sooba v. The State 1990 P Cr. L J 704 (D.B.) and Bakhtiar Ahmad v. The State 1991 P Cr. L J 2398 to contend that the three Ordinances namely Pakistan Arms (Amendment) Ordinance, 1988 (Ordinance No. - XVI of 1988), Suppressions of Terrorist Activates (Special Courts) (Amendment) Ordinance, 1988 (Ordinance XVII of 1988) and Suppression of Terrorist Activities (Special Courts) (Second Amendment) Ordinance, 1988 (Ordinance XXV of 1988) by which arms such as a "klashnikov", a "G-III Rife" or any other type of assault rifle", were added in paragraph "C" of the Schedule to the Suppression of Terrorist Activities (Special Courts) Act, 1975, having not been laid before the Legislature, stood automatically repealed much before the dates of the recovery of these arms from the appellants and as such the trial of the appellants by the Special Courts was without jurisdiction. The learned counsel appearing for the State in these appeals are not in a position to controvert them.

4. We have carefully attended to the submissions made by the learned counsel for the parties and have examined the aforesaid Ordinances and also Ordinance No.X of 1989, Ordinance No.I of 1990, Ordinance No.II of 1990 and Act V of 1990, published in the Gazette of Pakistan on 7-11-1988, 3-9-1989, 17-3-1990, 3-10-1990 and 16-6-1990 respectively and also the case-law cited by the learned counsel for the appellants at the time of hearing of the case. We feel persuaded to agree with the learned counsel for the appellants. Admittedly, Ordinance No.VII of 1988 and Ordinance NO.XV of 1988 were not laid before the appropriate Legislature after four months of their publication in the Gazette of Pakistan and, as such, stood repealed after the period of four months as provided in Article 89 of the Constitution of Islamic Republic of Pakistan, 1973. Furthermore, Suppression of Terrorist Activities (Special Courts) (Amendment) Ordinance, 1990 (Ordinance I of 1990) was again promulgated on 17-3-1990 and the position of the Schedule to the Act amended vide Ordinance of 1988 was carried further. Unfortunately, this Ordinance was trot laid before the Legislature after four months of its promulgation. So, the continuity of the Ordinances could not remain intact. Finally, Suppression of Terrorist Activities (Special Court) (Amendment) Act, 1990 (Act No.V of 1990) was promulgated on 16-6-1990, in which the amendment introduced under Ordinance No.I of 1990 was kept intact. Be that as it may, the fact remains that on the dates of the occurrence, i.e. the dates of the recovery of the sten-gun/klashnikovs from the appellants, neither the Ordinances XVI, XVII and XXV were alive nor proceedings under these Ordinances, which by that time were deemed to have been replaced were pending adjudication against the appellants. This being the position, the trial of the appellants on the charges of keeping unlicensed arms such as sten-gun and klashnikov, which were introduced through Ordinance of 1988 was coram non judice.

5. Pursuant to the above discussion, all these appeals are accepted and the convictions and sentences of the appellants are set aside. The trial Courts shall return the challans against the appellants to the S.H.O. concerned for presentation before the Illaqa Magistrates/Assistant Commissioner concerned for trial in accordance with law. The appellants who have been allowed bail by this Court shall remain on bail during their fresh trial. The appellants who are in jail will move application for bail before Illaqa Magistrate/Assistant Commissioner concerned, if so advised. N.H.Q./M-1118/L?????????????????????????????????????????????????????????????????????????????? Appeals accepted