1996 P Cr (PLP)

In support of his contentions, learned counsel has placed reliance on the law declared in cases of Bakhtiar Ahmad v. The State 1991 PCr.LJ 2398; Abdul Jabbar v. The State 1994 MLD 1429 and The State v. Bakhtiar Ahmad and another 1995 SCMR 59.

9. Syed Sajjad Hussain Shah, learned Assistant Advocate‑General Punjab, who has appeared on behalf of the respondents, has relied upon the contents of the F.I.R., statements of the prosecution witnesses recorded under section 161, Cr.P.C. and recovery memos prepared during the course of investigation of this case, the factum of recovery of Klashnikov, crime‑empties and ten live cartridges from the premises of Lal Haveli owned by Sheikh Rashid Ahmad, M.N.A., a co‑accused of this case, registration of a case under section 13 of Ordinance XX of ,1965 against the said co‑accused his trial, conviction and sentence under the said offence, by the learned Special Court and has contended that all the accused persons of this case are jointly responsible and are liable to be punished for commission of offence, committed by them on 20‑9‑1994 as alleged in the F.I.R. No.449 including the offence, for keeping and firing with the Klashnikov under sections 8, 9 and 13 of the West Pakistan Arms Ordinance (XX of 1965), therefore, the trial of the case in hand is to be held exclusively by the Special Court and not by an ordinary Court, as per provisions of section 4 read with section 2(b) and the Schedule to the Suppression of Terrorist Activities (Special Courts) Act, 1975 and that the petitioners as well as the other co‑accused are also alleged to have committed the offence under section 324, P.P.C. which is para materia to the provision of old section 307, P.P.C. which section does find mention in the Schedule to the Act, therefore, even if section 324, P.P.C. has not been substituted in place of section 307, P.P.C. in the Schedule, it shall be deemed to be substituted therein under section 8(1) of the General Clauses Act, 1897, hence, the said offence being a scheduled offence, even if the other offences are not scheduled, the trial is to be held by the Special Court and not by the ordinary Court, hence, the order passed by the learned Special Court is unexceptionable. In support of his contentions, he has placed reliance on the law declared in cases of Azhar Hussain and others v. Government of Punjab and others 1992 PCr.LJ 2308; Allah Din and 18 others v. The State 1994 SCMR 717 and Sher Akram v. Sher Qadir 1994 SCMR 1092.

10. We have considered the arguments addressed at the bar, have perused the record, have gone through the relevant case‑law and the statutory provisions on the subject. For the sake of ready reference relevant statutory provisions and resume of case‑law is reflected hereafter as under:‑‑ (I) Relevant statutory provisions‑ " General Clauses Act 1897 S. 8 Construction of the references to revealed enactments.‑‑‑ (1) Where this Act, or any (Central Act) or Regulation made after the commencement of this Act, repeals and re enacts, with or without modification any provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re enacted. (2) Where before the fifteenth day of August, 1947, any Act of Parliament of the United Kingdom repealed and re‑enacted, with or without modification, any provision of a former enactment, then references in any Central Act or in any Regulation or instrument to the provision so repealed shall unless a different intention appears, be construed as references to the provision so re‑enacted. (b) Pakistan Penal Code, 1860‑ Section 324:

‑ Whoever does any act with such intention or knowledge, and under such circumstances, that, if he by that act caused Qatl, he would be guilty of Qatl‑i‑Amd, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, and if hurt is caused to any person by such act, the offender shall (in addition to the imprisonment and fine as aforesaid) be liable to the punishment provided for the hurt caused: Provided that, where the punishment for the hurt is Qisas which is not executable, the offender shall be liable to Arsh and may also be punished with imprisonment of either description for a term which may extend to seven years. (c) Pakistan Penal Code, 1860

Section 307.‑‑‑ Whoever does any act with such‑ intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and, if hurt is caused to any person by such act, the offender, shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned. When any person offending under this section is under sentence of transportation for life or imprisonment for life, he may, if hurt is caused, be punished with death. (d) Schedule to the Suppression of Terrorist Activities (Special Courts) Act, 1975.‑‑ Clause (a)(ii)(a).‑‑‑ Section 302 or section 307, if committed in the course of the same transaction in which an offence specified in this paragraph or paragraphs (b) and (c) is committed, or in addition to or in combination with such offence. Clause (c), ‑‑ Any offence punishable under the Arms Act, 1878 (XI of 1878), or any offence punishable under any of the following sections of the West Pakistan Arms Ordinance, 1965 (West Pakistan `Ordinance NOXX of 1965), namely sections 8, 9 and 10, if committed in respect of a cannon, grenade, bomb, rocket; or a light or heavy automatic or semi‑automatic weapon such as Klashnikov, a G‑III rifle or any other type of assault rifle. Clause (cc). Any offence punishable under section 13‑A or section 13‑B of the Pakistan Arms Ordinance, 1965 (W.P. Ordinance NoXX of 1965)." (II) Resume of case‑law: In case of Bakhtiar Ahmad (supra), it has been held that a weapon which is not automatic or semi‑automatic and not a rifle of the kind of Klashnikov, a G‑III or other assault rifle cannot be considered to be covered by section 13‑A of the West Pakistan Arms Ordinance (XX of 1965), therefore, the offences under the Arms Ordinance in respect of rifle of .303 bore or over, musket of .410 bore or over, pistol or revolver of .441 or over or ammunition which can be fired from such rifle, musket, pistol or revolver are not scheduled arms under the Act of 1975 and as in this case mauser is not a weapon but is the name of manufacturer from Germany, therefore, the persons from whom mauser, pistol or revolvers are recovered were not triable by the Special Courts, hence, their conviction and sentence was declared to be corum non judice and was set aside. Judgment rendered in this case was challenged by the State before the Supreme Court of Pakistan in Criminal Appeals Nos.37 and 38 of 1992, which appeals have been dismissed and the judgment tendered by the High Court has been upheld for the same reasons which had found favour with the High Court. Refer case of The State v. Bakhtiar Ahmad and another 1995 SCMR 59. In case of Abdul Jabbar (supra), which is a Division Bench judgment of this Court, it has been held that in case a Special Court, is holding trial of a case where some of the offences are not scheduled, it will not have jurisdiction to hold a trial in the said case. View taken in this judgment is, however, contrary to the one, which has been taken by their Lordships of the Supreme Court of Pakistan in case of Sher Akram (supra) wherein it has been held that a Special Judge is competent to hold trial of scheduled and non‑scheduled offences, if commission thereof relates to the same occurrence. In case of Azhar Hussain (supra), a Full Bench of this Court has held that before the commencement of the trial the jurisdiction of the Special Court to take cognizance is to be determined on the basis of allegations levelled in the F.I.R., report under section 173, Cr.P.C. as well as other material collected by the prosecution inasmuch as truthfulness or otherwise of the allegations can only be determined at the time of trial after recording of evidence. At page 2311 in paragraph 8 of the judgment it has been held as under:‑‑ "There is no dispute that according to the allegations contained in the F.I.R. as also the report under section 173 of the Cr.P.C. one of the accused had allegedly used Klashnikov during the commission of the offence. That being so, the case clearly falls within the mischief of the above reproduced paras of the Schedule. The argument of the learned Counsel that as Klashnikov was not recovered and that none of the petitioners was arrested has hardly any relevance. The jurisdiction of the Court is to be determined on the basis of the allegations contained in F.I.R. and. the case set up by the prosecution. The truthfulness or otherwise of the allegations can only be determined at the time of trial after recording evidence. Moreover, mere fact that the Klashnikov had not been recovered can hardly justify the conclusion that it was not at all used." In cast of Allah Din (supra), it has been held that the question of jurisdiction of the Special Court can be determined on the basis of F.I.R. and other material produced by the prosecution at the time of presentation of the challan and the Court on the basis of such material has to decide whether cognizance is to be taken or not. At page 719 in paragraph 6 of the report, it has been held as under:‑‑ "We are in agreement with view expressed in the reported judgment mentioned above, and further observe that question of jurisdiction can be determined on the basis of F.I.R. and other material which is produced by the prosecution at the time of presentation of the challan. On the basis of that material the Court has to decide whether cognizance is to be taken or not. In the instant case incident is seen by six eye‑witnesses and on our query whether eye witnesses have supported the allegation in F.I.R. about use of Klashnikov like weapon, learned counsel for the petitioners replied in the affirmative. In the circumstances material available with prosecution in this case is sufficient to justify invocation of jurisdiction by the Special Court. Other contentions raised by the learned counsel for the petitioners as mentioned above, can be properly appreciated only when evidence is recorded in the trial Court and witnesses are cross‑examined. When that stage comes, the law will take its own course and it is open to the parties to take steps as are permitted by the law. For the present we are of the view that no flaw or legal infirmity is pointed out in the judgment of the High Court warranting interference. Leave is refused and the petition big devoid of merits, is hereby dismissed." In case of Sher Akram (supra), wherein an accused person 3was charged for having committed offence under section 302, P.P.C. and under section 13 of Ordinance XX of 1965 as well as section 5 of the Explosive Substances Act (XI of 1908) and was convicted and sentenced by the Special Court constituted under Act XV of 1975, on all the three counts and the said conviction and sentence was challenged by him before the Peshawar High Court in appeal, which was accepted are the case was remanded for de novo trial to three forums, the remand order passed by the High Court was challenged before the Honourable Supreme Court of Pakistan in re: Criminal Appeal No.107 of 1993, which was accepted and it has been held by their Lordships that as per provisions of section 4(2) of Act XV of 1975, if the accused person is charged with more than one offences and one of the same is not a scheduled offence, the Court can hold a trial of that offence as well as a scheduled offence after recording its opinion in respect thereto. In case of State of Bihar v. G.N. Ojha AIR 1963 Pat. 303, which is a Full Bench judgment, where the question of reference in Act "A" to the provision in Act "B", which had been repealed and re‑enacted as Act "C", had arisen it has been held that where the Act repealed has been re‑enacted with or without modification, as had been done in the Indian Mines Act, reference to the prior Act has been held to referable to the subsequent Act, according to section 8 of the General Clauses Act. Therefore, the Act of 1.952 which took the place of Act, 1923 is held to be applicable the such a case. Similar view has been rendered by the Supreme Court of India in case State of U.P. v. M.P. Singh AIR 196,0 SC 569; Moradliwaj v. Bhudar Das AIR 1955 All. 353 at page 358 and National Sewing Thread Ca. Ltd. Chidambaram v. James Chandwich & Brothers Ltd. AIR 1953 SC 357, which judgments have been relied upon by their Lordships, for taking the aforementioned view. In case of Ram Rosad Ramnarain v. Bejoy Kumar Sadhukhan AIR 1966 Cal. 488, in which case section 30 of Calcutta City Civil Courts Act, 1953 provided that the period of limitation shall be as provided under the Indian Limitation Act, 1908 and subsequently, Indian Limitation Act, 1908 was repealed and re‑enacted by Limitation Act of 1963 but corresponding amendment was not made in section 30 of the Act of 1953, a question arose as to whether the words Limitation Act, 1963 can be read as having been substituted for Limitation Act, .1908? It has been held that by virtue. of the provisions of section 8(1) of the General Clauses Act, automatically the word "Limitation Act, 1963" shall be deemed to have been substituted in place of Indian Limitation Act, 1908 in section 30 of the Act of 1953. In paragraphs 12 to 17 of the report, it has been held as under:‑‑ "(12) As to the second of the above two submissions of Mr. Sengupta, it will probably be enough to refer to section 8(1) of the Indian General Clauses Act, which is in these terms: Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals and re‑enacts, with or without modification, any provision of a former enactment, then references in any other enactment, or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re‑enacted. There can be no doubt that the new Limitation Act, 1963, is a re- enactment of the old, with certain modifications, upon a repeal of the same. It is thus a case of repeal and re‑enactment with modification and the section directly applies to substitute it in place of the old Act in all incorporating statutes by reference or otherwise (Vide in this connection State of Uttar Pradesh v. M.P. Singh, AIR 1960 SC 569; see also Hindustan Journals Ltd. v. Dinesh Awasthi Ramswaroop Awasthi, AIR 1957 Madh B 125; Radhakishan Ramnath v. State 61 Bom. LR 711; Moosa Kazimi v. K.M. Sheriff 72 Mad LW 483; AIR 1959 Mad. 542 and Raj Kishan Jain v. Tulsi Dass AIR 1959 Punj 291). (13) Even apart from the section, the principle, underlying it (which is of general application and is to be found also in section 38(1) of the English Interpretation Act) applies with the same or a similar effect (Vide National Sewing Trading Co. Ltd. v. James Chadwick & Bros., Ltd. AIR 1953 SC 357). The section and its underlying principle applies to all cases of repeal and re‑enactment with or without modification and such cases should not be confused with but should be kept distinct from cases of mere repeal or addition of a new provision, which fell for consideration in Secy. of State for India in Council v. Hindustan Cooperative Insurance Society, Ltd. 58 Ind. App. 259, AIR 1931 PC 149. To such a case, obviously the above section or principle had no application and no wonder that their Lordships did not refer to the same‑There was also a further element in that case in that it related inter alia to an amendment, which ruled out, on its proper construction, any application of the above principle. In these circumstances, their Lordships held that the added section 26(2) in 1921 to the old Land Acquisition Act of 1894 could not be attracted to the Calcutta Improvement Act, in which the said Land Acquisition Act of 1894 had been incorporated by reference with certain modifications. That case, therefore, is clearly distinguishable from the present and does not, in any way, militate against the view that, on the above statutory provision (section 8(1) of the Indian General Clauses Act) and its underlying principle, the new Limitation Act will apply to Civil Courts Act and should be deemed to be substituted in place of the old in section 8(2)(b) of the same. Mr. Sengupta's submission to the contrary is, accordingly, rejected. (14) One word here on our recent decision in Naraindas Daulatram Kripalini v. New India Assurance Co. Ltd. (1965) 69 Cal. WN 313 which also is plainly distinguishable and has no manner of application to the instant case. Therein an amendment, made to the old statute (The West Bengal Premises Rent Control (Temporary Provisions) Act, 1960) by or through the referring statute (The City Civil Courts Act), the new statute (The West Bengal Premises Tenancy Act, 1956) was sought to be read or substituted, for which course no authority could be found either in statute or principle or judicial decision. There, further, as found by us, the relevant terms of the new statute in question would have militated against its substitution in place of the old in the referring or amending statute. (15) Thus, both principle and authority (58 Ind. App. 259: AIR 1931 PC 14) (supra) would have been opposed to the reading or substitution of the new statute in place of the old in the referring statute there and, accordingly, the argument in that behalf was rejected. We may add also that the exception or reservation clause "unless a different intention appears" in the otherwise relevant section 10 of the Bengal General Clauses Act, corresponding to the above section 8(1) of the Indian General Clauses Act, would have in the above context, apart from anything else been sufficient to rule out the application of the said section or its underlying principle in the said case and to lead to the same result or conclusion. (16) The position thus is clear and becomes fully established that, to the instant appeal, the new Limitation Act would apply. Under this new Act, it was urged by Mr. Sengupta that the present case would be covered by section 30 of the same and would thus be protected there being no question that, if the said section applied, the appeal before us would be well within time, it having been filed within ninety days from the coming into operation of the new Limitation Act and also within limitation under the old Act as computed thereunder, and thus within time under the section, whichever of the said two periods be earlier: This argument seems to be sound. Whatever be the meaning of the expression `the period of limitation' in the first part of the section (section 30) under the definition section 2(j), there can be no doubt that the other or later expression `period of limitation prescribed by the Indian Limitation Act, 1908', used in the said section (section 30), means the period prescribed by the said Act, that is, as computed thereunder in the light of section 3 thereof or, in other words, sections 4 to 25 (inclusive), as mentioned therein. (17) Apart from authorities (Vide, in this connection Naganna v. Krishnamurthi, ILR 55 Mad. 286; AIR 1932 Mad. 139 at p.141; Dhanni Mistry v. Bengal Nagpur Rly. Co. Ltd. AIR 1934 Pat. 367 at p.368; ILR 13 Pat. 632 at pp.635‑6 and Chheda v. Baldeo, AIR 1949 All. 764 at p.766 citing and relying on'inter cilia the Privy Council decision in Maqbul Ahmad v. Pratap Narain Singh, 62 Ind. App. 80 at p.82 AIR 1935 PC 85 at p.87; see also Thimnianath Bhat v. Advanthaya, AIR 1940 Mad. 908 and Bhiwani Cloth Mills, Ltd. v. Parmeshari Das, AIR 1947 Lah. 168 at p.171, this new statute itself gives the clue to the above connotation in its next section 31 where the same expression `period of limitation prescribed under the Indian Limitation Act, 1908' is used and which obviously and necessarily, carries the above meaning. Indeed, the statute, in section 31, contains its own dictionary on the point although the definition of section (section 2(j) may not directly cover it. This interpretation is also aided by the definition of `prescribed period' in the said section 26) of the new Act and by the well‑known principle. that where the language of a law of limitation is ambiguous it should be construed strictly against barring rights, that is, in favour of .he right to proceed." 11. On the basis of allegations levelled in the F.I.R. and armed with the evidence/material collected during the course of investigation of this ease which has been taken note of in the earlier part of this judgment, the prosecution intends to prosecute the petitioners alongwith their co‑accused for the alleged commission of the offences, as mentioned in the F.I.R. of this case as well as the offences which may fall under the provisions of sections 8, 9 and 13 of Ordinance XX of 1.965 and hence has put in an incomplete challan in the special Court concerned. It is" now well‑established a legal proposition, that at this stage, in order to determine the question of jurisdiction of the Special Court, reliance shall have to be placed on the contents of the F.I.R., the material collected by the prosecution and the report under section 173. Cr.P.C. assuming the same to be correct as truthfulness or otherwise of the same has to be determined during Vic course of trial. Law declared in this behalf in cases of Azhar Hussain and Allah Din (supra) by a full Bench of this Court and honourable Supreme Court of Pakistan is applicable to this case on all fours. Case of Bakhtiar Ahmad (supra) cited by the learned counsel for the petitioners is distinguishable and is rather not relevant to the controversy in question arid, therefore, is of no avail to the learned counsel for the petitioners. Contents of the F.1.R. as well as other material on the present record clearly show that the trial is to take place for commission of offences including the offences under sections 324, P.P.C. and sections a, 9 and 13 of Ordinance XX of 1965 read with section 109 P:P.C., which are scheduled offences as per provision of clauses (c) and (cc) of the Schedule to the Act. Offences under sections 324 and 307, P.P.C. prior to the amendment in the Pakistan Penal Code vide Criminal Law (Second Amendment) Ordinance, VII of 1990, were distinct and independent in terms of their constituents as well as the sentence provided for commission therefor. As per provisions of section 4 of the Ordinance referred to above, for the first time in the year, 1990 provisions of sections 299 to 338 of the Pakistan Penal Code were substituted, as a result whereof, the offence under section 324, P.P.C. was modified by merger with offence under section 307, P.P.C. and a consolidated offence in a modified form, as section 324 was substituted in the Pakistan Penal Code. It was prior to the aforementioned substitution, that the offence under section 307, P.P.C., as it originally stood, had been made as a part of the Schedule to the Suppression of Terrorist Activities (Special Courts) Act, 1975. As per provisions of section 8(1) of the General Clauses Act, which provides that if in a piece of legislation some provisions of other law are to be read by reference to that law, then in case of subsequent amendment/modification/substitution of the said provision of that law, the same shall be deemed to have been substituted in the first enactment and shall form part thereof in 'the amended/substituted form, without there being necessity of making of a formal amendment therein, unless different intention appears in a particular case, which is not in the case in hand from as substituted provisions of section 324 and old section 307, P.P.C. are para materia. Therefore, keeping in view the afore‑mentioned principle as contained under section 8 of the General Clauses Act, section 324 shall be deemed and read as a part of the Schedule to the Act of 1975. Above taken view is also supported by the law declared in cases of G.N Ojha and Ram Rosad Ramnarain (supra), which are applicable to the case in hand on all fours. The result, hence, is that in the case in hand the, petitioners as well as their co accused are to face trial for alleged commission of scheduled and non scheduled offences alleged to have been committed during the course of same occurrence. 12. As regards the scheduled offences, there is no cavil with the proposition that the same are to be exclusively tried by the Special Court as per provisions of section 4 read with section 2(b) and Schedule to the Act of 1975, whereas the non‑scheduled offence, which are alleged to have been committed during the course of the same occurrence, can also be tried by the Special Court by recording of his opinion for taking cognizance thereof as held in case of Sher Akram (supra). Case of Abdul. Jabbar (supra) cited by the learned counsel for the petitioners wherein a contrary view has been taken, although is a Division Bench judgment, yet, the law declared therein being contrary to the one laid down by their lordships of the Supreme Court of Pakistan .in case of Sher Akram (supra) cannot be considered to be a good law, as‑such, we ‑proceed to dissent therefrom and hold that in the case in hand all the offences, for which .the trial is to be held, are triable by the learned Special Court, wherein an incomplete challan, has already been submitted. Therefore, the order passed by the learned Special Court is unexceptionable and, hence, is upheld. 13. Resultantly, we see no force irk this writ petition, hence, the same is dismissed with no order as to costs. N.H.Q./M‑2560/L Petition dismissed.