1992 PLP 1618 (MLD)

Sten‑gun, 9 mm with one magazine and 4 empty shells of bullets. (iii) Hamid Mohiuddin T.T. Pistol with two magazines. On the written report made by Captain Iftikharuddin a case under section 336/34, P.P.C., being Crime No.348 of 1991 was registered against the accused persons at Jamshed Quarters P.S. A separate case under section 7(1) of the Surrender of Illicit Arms Ordinance, 1991 (XX of 1991) was also registered against the applicant and others and after usual investigation they were sent up to stand trial before Special Court No.III, Suppression of Terrorist Activities, Karachi. The jurisdiction of the Special Court, Suppression of Terrorist Activities, Karachi was, however, challenged and consequently the charge‑sheet was returned to A.C.M., Court No.VlI (East) Karachi, for want of jurisdiction vide order dated 30‑1‑1992. The A.C.M. in turn sent the case to the Court of Sessions Judge (East) Karachi, under section 190(3), Cr.P.C., which was transferred to the Court of 1st Additional Sessions Judge (East) Karachi, for disposal, where the applicant moved a bail application which was, however, dismissed by an undated order for want of jurisdiction. The A.C.M. then made two references to District Magistrate (East) Karachi, for necessary action, but with no result. Consequently on 22‑2‑1992 the A.C.M. directed S.H.O. Jamshed Quarters P.S. to make necessary corrections in the charge sheet by applying proper sections. It appears that S.H.O. Jamshed Quarters P.S. amended the charge‑sheet, wherein sections 13‑D and 13‑B of the Arms Ordinance , 1965, were added; and thereafter the case was again referred to the ,,Court of Sessions Judge (East) Karachi, in terms of section 190(3), Cr.P.C. A bail application was repeated before learned Is Additional Sessions Judge (East) Karachi, which was, however, dismissed vide order, dated 30‑3‑1992, mainly for the reason that the offence with which the applicant is now charged being a `scheduled offence' was triable exclusively by the Special Court, Suppression of Terrorist Activities, Karachi. It is in these circumstances that the applicant has now approached this Court with the prayer of bail.

3. I have heard Mr. Azad Bin Haider, learned counsel for applicant and Mr. Muhammad Zubair Qureshy, learned counsel for State.

4. In order to resolve the question of existence or absence of jurisdiction it would be desirable if the entire field as emerging from the relevant laws, is taken into consideration. The wholesomeness of the provisions of all the laws involved, are required to be examined so far as it is necessary from the point of ‑view of jurisdiction, since the correct position can be arrived at from the fact as to how the totality of such provisions takes it effect or can be given effect to.

5. On 1‑10‑1878 the Arms Act, 1878, was enacted, which had replaced the Arms Act, 1841, Act XXX of 1845, Act XXVIII of 1857, Act XY‑XI of 1800, Act VI of 1865 and Act VI of 1866, which were temporary in nature and had not served the desired purpose. This Act was followed by the Explosives Act, 1884, and the Explosive Substances Act, 1908. As observed by a Division Bench of the erstwhile High Court of West Pakistan in the case of Syed Raza Kazim v. District Magistrate, Lahore and Commissioner, Lahore Division, Lahore, reported in PLD 1958 Lah. 706, "the Arms Act was enacted at a time when it was necessary to control the possession of arms, not only for reasons connected with public tranquillity and the prevention of crime, reasons which hold good even today, but also for reasons of State, which are alien to the present political context". The Arms Act, 1878, occupied the field till the year 1965, when the West Pakistan Arms Ordinance, 1965, was promulgated by which the Arms Act, 1878, was repealed partially in the following words:‑ "The Arms Act, 1878 (XI of 1878) as in force in the Province of West Pakistan, together with all enactments amending or modifying the same, except the provisions thereof relating to manufacture (including conversion), export or import of arms, ammunition and military stores, is hereby repealed."

6. Reading the provisions of the Arms Act, 1878, together with the West Pakistan Arms Ordinance, 1965, it is apparent that the basic principles of the earlier Act have been retained in the Ordinance, with only few changes. These departures were necessary because of changes of great importance which had taken place in the social, political and economic conditions of the country. After the dissolution of the Province of West Pakistan, the word "West" was. deleted from the title of this Ordinance.

7. The law and order situation deteriorated in recent past and in order to provide an incentive to the persons possessing unlicensed arms and ammunition the Surrender of Illicit Arms Ordinance, 1991, was promulgated by the President of Pakistan on 2‑7‑1991. Subsection (3) of section 1 of this Ordinance provided as follows:‑ "It shall come into force in such areas, and on such days, as the Federal Government may, by notification in the official Gazette, appoint and different days may be so appointed in respect of different areas."

8. By notification No.SRO‑647(1)/91, dated 9‑7‑1991, the Federal Government appointed the 9th day of July, 1991, to be the day on which the above Ordinance shall come into force in the whole of Pakistan except Provincially administered tribal areas of the Provinces of Balochistan and N. W.F.P. This Ordinance was promulgated in exercise of powers vested in the President of Pakistan under Article 89 of the Constitution of Islamic Republic of Pakistan, 1973. Such Ordinances stand repealed at the expiration of four months from its promulgation or, if before the expiration of that period a resolution disapproving it is passed by the Assembly, upon the passing of that resolution. Obviously, therefore, the Surrender of Illicit Arms Ordinance, 1991, stood repealed on 2‑11‑1991. Admittedly the case against the applicant under section 7(1) of the Surrender of Illicit Arms Ordinance, 1991, was registered on 2‑10‑1991, when this Ordinance was in force. Section 6 of the General Clauses Act, 1897, corresponding to section 4 of the West Pakistan General Clauses Act, 1956 as adapted in the Province of Sindh, is relevant to meet such an exigency. The Surrender of Illicit Arms Act, 1991, was then enacted on 2‑12‑1991. Subsection (3) of section 1 of this Act, however, made a departure from similar provision contained in the repealed Ordinance in the following manner:‑ "It shall come into force in such areas, and on such date, as the Federal Government may, on recommendation of the respective Provincial Governments, by notification in the official Gazette, appoint, and different dates may be so appointed in respect of different areas."

9. By virtue of section 24 of the General Clauses Act, 1897, the rules, regulations, bye‑laws, appointments, notifications etc. made or issued under the repealed Ordinance/Act are continued in force under the new law, if the new Act is re‑enacted without modification. As indicated earlier subsection (3) of section 1 of the Surrender of Illicit Arms Act, 1991, is different from the one under the Surrender of Illicit Arms Ordinance, 1991, and consequently the notification No.SRO 647(1)/91, dated 9‑7‑1991, issued under the repealed Ordinance has lost its force and validity. As a necessary corollary to this finding it is incumbent upon the Federal Government to issue notification under subsection (3) of section 1 of the Surrender of Illicit Arms Act, 1991, appointing a date for its enforcement in the Province of Sindh on the recommendation of the Government of Sindh. Both M/s. Azad Bin Haider, learned counsel for applicant and Muhammad Zubair Qureshy, learned counsel for the State have stated at the Bar that no such notification has been issued by the Federal Government on the recommendation of the Provincial Government. Resultantly, 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 subsection (3) of section 1 of the Act is issued and published in official Gazette.

10. Even otherwise the Surrender of Illicit Arms Act, 1991, by its nature is temporary. It object in main is to provide an opportunity for the surrender of illicit arms with a view to improve the law and order situation. Section 8 of the Surrender of Illicit Arms Ordinance/Act, 1991, makes the intention of the legislature clear. Section 9 of this Act further provides about launching of the campaign for the recovery of illicit arms. Obviously, therefore, the prosecution of the persons found in possession of unlicensed arms and ammunition as a result of this co‑ordinated campaign, will be justified under section 7(1) of the Surrender of Illicit Arms Act, 1991, and not otherwise. The offence of going armed with unlicensed arms and ammunition is already punishable under section 13‑D of the Arms Ordinance, 1965. The registration of F.I.R. against the applicant for the offence under section 7(1) of the Surrender of Illicit Arms Ordinance, 1991, was therefore, not called for. It may also be added that section 26 of the General Clauses Act, 1897, makes it clear that where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of these enactments, but shall not be liable to be punished twice for same offence.

11. Coming to the question of venue of trial for the offence under section 7(1) of the Surrender of Illicit Arms Act, 1991 (after it comes into force), it may be stated that sections ‑ 1(2), 5, 6 and 29, Cr.P.C. provide a complete answer. To understand this point it will be convenient to reproduce section 29, Cr.P.C., which reads as follows:‑ OFFENCES UNDER OTHER LAWS. (1) Subject to the other provisions of this Code, any offence under any other law shall, when any Court is mentioned in this behalf in such law, be tried by such Court. (2) When no Court is so mentioned, it may be tried by the High Court or subject as aforesaid by any Court constituted under this Code by which such offence is shown in the eighth column of the Second Schedule to be triable."

12. Admittedly no Court is mentioned in the Surrender of Illicit Arm. Act, 1991, where offence under section 7(1) or section 12 thereof is tried. The offence under section 7(1) is punishable with imprisonment for life and the offence under section 12 is punishable with imprisonment which may extend t ten years. According to Second Schedule both these offences are triable exclusively by Court of Session and there should be no misunderstanding about it.

13. Reverting to offence under section 13‑D of the Arms Ordinance, 1965, which could be the possible charge against the applicant it is obvious that the offence of going armed without a valid licence, if committed in respect of a light or heavy automatic or semi‑automatic weapon, like the sten‑gun is a `scheduled offence' within the meaning of paragraph (C) of the Schedule and is thus triable exclusively by the Special Court, Suppression of Terrorist Activities, Karachi. The Ist Additional Sessions Judge (East) Karachi, has, d therefore, no jurisdiction to try this case. In this view of the matter, the Court where the case is now pending is directed to send the R&P of this case to the Presiding Officer, Special Court No.111, Suppression of Terrorist Activities, Karachi, for disposal according to law.

14. Since the bail application made on behalf of applicant was not disposed of by Special Court on merits, the applicant may seek his remedy before it, if so advised. The bail application before this Court at this stage is not competent and is dismissed accordingly. N.H.Q./H‑316/K Bail application dismissed.