P L D 1991 Karachi 266 (PLP)

SYED ABDUR REHMAN, J: ‑‑This appeal is directed against the judgment of the Judge Special Court Suppression of Terrorist Activities Hyderabad, dated 12‑12‑1990 whereby appellant Muhammad Aslam was convicted under section 13(d) of the Arms Ordinance and sentenced to suffer R.I. for three years. It is alleged that on 24‑7‑1989 at 9.00 a.m. S.I.P. Sultan Rajar of Phuleli Police Station, Hyderabad alongwith his subordinate staff while on patrol came to Tank No.2 and near the Hotel of Umer they came across the appellant who on seeing them tried to run away. The police party surrounded and apprehended the appellant. On his personal search a T.T. Mouser pistol of 30 bore and four magazines one of which was loaded with seven bullets were recovered from the fold of his Shalwar. Usual mashirnama was prepared in presence of mashirs A.S.I. Zahoor Khan and A.5.1 Muneer Ahmad. The appellant could not produce any licence for the arm and therefore, F.I.R. was lodged by the S.I.P. Usual investigation were conducted and the appellant was challaned before the Special Court of Terrorist activities . A charge was framed against the appellant under section 13(d), Arms Ordinance to which he pleaded not guilty and claimed to be tried. In his statement under section 342, Cr.P.C. the appellant has alleged that he was arrested from the hotel and the pistol and the ammunition has been foisted upon him. He has not examined himself on oath although such opportunity was given to him. He has examined D.W. Haji in his defence. From the side of prosecution S.H.O. Sultan Rajar and Mashir A.S.I. Zahoor Khan were examined. The learned Trial Court believed the evidence of the prosecution witnesses and disbelieved that of the defence witness and found the accused guilty as shown above. Mr. Qurban Ali Chohan who has appeared for the appellant has contended that the offence of 13(d) of the Arms Ordinance which is punishable under section 8 thereof is scheduled offence only if it is committed in respect of, inter alia, a light or heavy arm or semi‑automatic weapon such as Klashnikov, a G‑III rifle or any other type of assault rifle. He pointed out that since the weapon secured from the possession of the appellant was a T.T. Mouser pistel of .30 bore it did not come within the above definition. In this connection he has relied upon the unreported decision of a Division Bench of this Court in C.P. No.522/90 where it was held that a pistol of .30 bore is different and distinguishable from "Klashnikov, G‑III rifle or any other type of assault rifle", all of whom belong to sophisticated class of rifle. Mr. Jalaluddin Baloch who has appeared for the State concedes that the weapon secured from the possession of the appellant is not of the type which falls under the definition of scheduled offences. We are of the clear view that the pistol recovered from the possession of the appellant was not such as would bring the offence with which he was charged within the mischief of scheduled offences and therefore Special Court of Terrorist A Activities had no jurisdiction to take cognizance of this case. We therefore, set aside the conviction of the appellant and remand the case for retrial by a Court of ordinary jurisdiction. It is pointed out by Mr. Qurban Ali Chohan that the appellant was initially released on bail by the Sessions Judge Hyderabad. After being challaned before the Special Court of Terrorist Activities he was also granted bail by the learned Court. He continues to remain on bail till he was convicted. He therefore requests that the appellant be allowed to continue on bail. We, therefore, direct that the appellant shall be released on bail on furnishing fresh surety in the sum of Rs.30,000 and P.R. bond in the like amount to the satisfaction of the Sessions Judge, Hyderabad. N.H.Q./M‑1383/K?????????????????????????????????????????????????????????????????????????????????????????????????????????? Case remanded.