1992 P Cr (PLP)

MUHAMMAD MUNIR KHAN, J.‑‑‑ These five Criminal Appeals Nos.162 of 1991, 93 of 1991, 374 of 1990, 406 of 1991 and 217 of 1991 arise from the judgments of Presiding Officers, Special Courts (Suppression of Terrorist Activities), Gujranwala, Sahiwal, Gujranwala, Faisalabad and Lahore, whereby, they convicted the appellants namely Muhammad Mansha on 10‑12‑1991, Ahmad Khan on 30‑1‑1991, Noor Muhammad on 13‑6‑1990, Nazir Ahmad on 31‑3‑1991 and Safdar Ali on 20‑2‑1991 under section 13 of the Arms Ordinance, 1965 on the charge of keeping with them unlicensed stengsn/Klashnikov and bullets on 17‑11‑1989, 28‑12‑1989, 8‑10‑1989, 19‑11 1989 and 7‑10‑1989; respectively, and sentenced them to various terms of imprisonments 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 Klashnikov and stengun 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 Muhammad Asif v. The State 1989 P Cr. L J 1310, Muhammad Aslam alias Sooba v. The State 1990 P Cr. L J 704 (D.B.) and Bakhtiar Ahmad. v. The State 1991 P Cr. LJ 2398 to contend that the three Ordinances namely Pakistan Arms (Amendment) Ordinance, 1988 (Ordinance NOXVI of 1988), Suppression of Terrorist Activities (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 rifle 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of Terrorist Activities (Special Courts) Act, 1975, having not been laid before the Legislature, stood automatically repealed much before the dates of the recovery of these arms from the appellants and as such, the trial of the appellants by the Special Courts was without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 five 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 Ordinance and also Ordinance No.X of 1989, Ordinance No.I of 1990, Ordinance XI of 1990 and Act V of 1990, published in the Gazette of Pakistan on 7‑11‑1988, 3‑9‑1989, 17‑3‑1990, 30‑10‑1990 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 NoXVII of 1988 and Ordinance NOXXV 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 189 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 not 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 Courts) (Amendment) Act 1990 (Act No.V of 1990) was promulgated on 16‑6‑1990, in which the amendment introduced under Ordinance No.l of 1990 was kept intact. Be that as it may, the fact remains that on the dates of the occurrence, i.e. the date of the recovery of the stengun/Klashnikov 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 repealed 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 Ordinances, 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 Ilaqa Magistrate/Assistant Commissioners 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 Commissioners concerned, if so advised. SA./M‑95/L Appeal accepted.