1994 PLP 1092 (SCMR)

MANZOOR HUSSAIN SIAL, J.‑‑‑Sher Akram, appellant herein, who is brother of Sher Afgan deceased by leave of this Court assailed the judgment dated 21‑10‑1992 of the Peshawar High Court passed in Criminal Appeal No. 21 of 1991 filed by Sher Qadir respondent.

2. The facts in brief giving rise to this appeal are that, the appellant lodged F.I.R., at Police Station City Bannu, through a "Marasla", to the effect that on 21‑12‑1989, the complainant, alongwith his brother Sher Afgan had gone to Bazar to purchase medicines and after purchasing the same were. passing near Chowk Mir Jani Bungalow, Sher Qadir respondent fired at Sher Afgan with his pistol. The shot hit him and he fell down. The assailant had in his hand something like "bomb" to evade his apprehension and started running towards Milad Park but was captured by the Police. A hand‑grenade and two live cartridges were recovered from him Sher Afgan succumbed to the injuries in the hospital.

3. The Special Judge. Bannu, tried the offender under section 302, P.P.C. read with section 5 of the Explosive Substances Act, 1908 and under section 13 of the Arms Ordinance. On 7‑12‑1991, the learned trial Judge found him guilty and convicted him for offence under section 302, P.P.C. and sentenced him to death and fine of Rs.30,

000. Similarly for offence under section 5 of the Explosive Substances Act he was convicted and sentenced to 7 years' R.I. whereas for the offence under section 13 of Arms Ordinance he was convicted and sentenced to two years' R.I.

4. On appeal, the learned Judges of the Peshawar High Court found that offence under section 13 of the Arms Ordinance was not a scheduled offence under the Suppression of Terrorist Activities (Special Courts) Act, 1975 (hereinafter referred to as "the Act") therefore, the learned trial Judge had no jurisdiction to try the same. The provisions of section 4 (2) of the Act of 1975, were interpreted in a manner, that where an accused allegedly committed an offence not included in the schedule the trial Judge would record hiss opinion and would not try the same. In support of that view reliance was placed on Muhammad Shafiq v. The State 1982 PCr. LJ 268.

5. By the impugned judgment the Peshawar High Court, remanded the case for de novo, trial in three forums, of Special Court for trial under Explosive Substances Act, Court of Sessions Judge, for trial under section 302, P.P.C. and in the Court of Magistrate for trial, under the Arms Ordinance.

6. Leave to appeal, was granted by this Court on 21‑4‑1993, to examine whether remand order was in accordance with law and met the ends of justice or, whether the defects pointed out in the impugned judgment were procedural in nature, not justifying the remand:

7. Learned counsel for the appellant pointed out (which is not controverted by the opposite side) that vide Ordinance I of 1987 a new sub- para. (11‑a) was added to the Schedule and offences under section 302, P.P.C. or section 307, P.P.C. were included in the Schedule provided those were committed in the course of the same in this paragraph or paragraphs (b) and (c) is committed or in addition to or in combination with, such offence. The assailant in this case had a pistol, with which he fired at the victim, he had the grenade in, his hand to avoid his apprehension, in the course of the same transaction the offences were committed in combination with each other and clearly constituted scheduled offences triable by the Special Judge. Admittedly only offence under section 13 of the Arms Ordinance, was not a scheduled offence.

8. Before adverting to the interpretation of the provision of section 4 of the Act, it would be useful to reproduce under, the hereunder the relevant portion thereof:‑‑

4. Jurisdiction of Special Court.

(1) Notwithstanding anything contained in the Code, the scheduled offences shall be triable exclusively by a Special Court: (2) If, in the course of a trial before the Special Court, the Court is of opinion that any of the offences which the accused is alleged to have committed is not a scheduled, offence, the Court, shall record such opinion and try the accused only for such offence; if any as is a scheduled offence." In our view subsection (2) creates an exception to subsection (1) of section 4 and provides that if the accused is charged with more than one offences, and one of the same is not a scheduled offence, it is necessary for the Court to record its opinion in respect thereto, and try the offence as if it was scheduled offence. The words "as is scheduled offence" clearly signify that non‑scheduled offence is to tried as scheduled offence. It appears, that the legislature visualised the situation, where the accused commits scheduled and non scheduled offences in the same transaction, the trial of one offence before one. forum may prejudice the trial in the other case before another forum.

9. In the instant case, the offence under the Arms Ordinance, though not a scheduled offence was committed, in the course of the same transaction no prejudice was caused to the accused. It was imperative for the trial judge to have recorded his opinion, in regard thereto before entering upon the trial and taking cognizance of the offence. Nevertheless the omission being procedural as curable and did not render the trial as illegal.

10. For, the foregoing reasons the impugned judgment dated 21-10-1992, of the High Court remanding the case to three forums is set aside and this appeal accepted. Resultantly the appeal filed by .the respondent in the High Court shall be reheard' arid' decided on merits N.H.Q./S‑853/S Order accordingly