1997 PLP 1141 (MLD)

KHALIL‑UR‑REHMAN RAMDAY, J.‑‑‑A case bearing F.I.R. No.281 of 1994 of Police Station Thikri Wala of District Faisalabad had been registered for the alleged commission of offences punishable tender sections 324/337‑A, 337‑F/14$/149, P.P.C. and on the death of the inured victim of the occurrence in question, namely, Arif, the abovementioned offence under section 324, P.P.C. was altered to one under section 302, P.P.C. Arif deceased in the present case had lost his life on account of blunt weapon injuries caused on his person allegedly by iron pipe, iron rod and Dang. The further accusations levelled through the said F.I.R. were that while the assailants armed with iron pipe, iron rod and Dang were inflicting injuries on the person of the deceased, one of their co‑assailants, namely, Anwar who was armed with a 7 MM rifle and another co‑assailant, namely, Talib, armed with a .12 bore gun, stood there raising Lalkaras and inciting their companions to do the deceased to death.

2. This occurrence had taken place on 21‑7‑1994 and while the investigation was still in progress, Anwar complainant filed an application before a learned Special Court at Faisalabad constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975, submitting therein that since one of the accused persons of the occurrence in question was armed with a 7 mm rifle at the time of occurrence, therefore, the case in question was triable exclusively by the said learned Special Court and it was resultantly prayed that the challan of the said case be requisitioned for trial by it. This application does not bear any date but the court‑fee pasted on the said application is dated 13‑9‑1994. On 14‑9‑1994, the learned Special Court passed an order mentioning therein that since the weapon used to the occurrence in question i.e. a 7 MM rifle was an assault rifle, therefore, the case was triable exclusively by the learned Special Court and consequently assuming jurisdiction of the case the said learned trial Court ordered the investigating agency to submit the challan of the said case before the said learned Court "in a very short period". The learned Special Judge further directed that he should be kept informed about the progress of the case. He also issued non‑bailable warrants against all the accused persons.

3. The present petition impugns the said order dated 14‑9‑1994 and also calls in question the assumption of jurisdiction by the said learned Special Court in the present case.

4. Section 3 of the Suppression of Terrorist Activities (Special Courts) Act, 1975 authorises the Federal Government to constitute Special Courts for the whole or any part of Pakistan. Subsection (2) of the said section, in turn, empowers the Provincial Government to constitute such Special Courts if so directed by the Government. Section 4 of the said enactment lays down that notwithstanding anything contained in the Code of Criminal Procedure, 1898, the offences mentioned in the Schedule appended to the said Act were triable exclusively by such a Special Court. Consequently, to determine whether the learned Special Court had or had not jurisdiction with respect to the case in question reference has to be made to the Schedule appended with the said Act.

5. Para. (a) (ii) of the Schedule envisages trial of an offence punishable under section 302, P.P.C. etc. by a Special Court if the said offence was committed in the course of the same transaction in which an offence specified, inter alia, in paras. (a), (b) or (c) had been committed. Para. (b) of the said Schedule provides as under: "Any offence punishable under the Explosive Substances Act, 1908 (XI of 1908)." Para. (c) of the said Schedule lays down as under: "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 No.XX of 1965), namely, sections 8, 9 and 10 if committed in respect of a cannon, grenade, bomb or rocket; or a light or heavy automatic or semi‑automatic weapon such as kalashnikov, A G‑III rifle or any other type of assault rifle. "

6. In the occurrence in question, there was no allegation of the commission of any offence punishable under the Explosive Substances Act of 1908. Therefore para. (b) of the Schedule is not relevant for the present purpose. The learned Special Court appears to have assumed jurisdiction on account of the provisions of para. (c) abovementioned assuming that a 7 MM rifle was a light or a heavy automatic or a semi‑automatic assault rifle.

7. This conclusion reached by the learned Special Court is not correct. According to the New Illustrated Encyclopaedia of Fire‑Arms by Ian V. Hogg, an assault rifle stands described as under: "ASSAULT RIFLES: Class of military rifle generally characterised by the use of a short cartridge and the ability to fire either single shots or automatic fire. The assault rifle came about from the development, in Germany, of a short cartridge this was predicated on the analysis of First World War experience which indicated that the average infantry soldier rarely used his rifle at ranges greater than 400 yards and, indeed, could rarely distinguish a target at all at ranges greater than this. From this arose the question of the utility of the standard military cartridge which was capable of delivering accurate fire to ranges of up to 2000 yards. Since this sort of range was not used it followed that by shortening the cartridge case and reducing the propellant charge, through retaining the standard calibre of the bullet, the performance would be adequate for the short ranges envisaged, while the recoil force on the rifle would be reduced. Moreover, the cartridges would weigh less and therefore the individual soldier could carry more, and since the cartridge was shorter the rifle action could also be made shorter. This reasoning eventually produced the Sturmgewehr 44, the first use of the phrase 'assault rifle' which was issued to the German Army in 1943‑

44. It proved to be a highly effective weapon, bearing out all the forecasts of the designers. The short cartridge was then copied by the Soviet Army in 7.62 calibre and used as the round for the klashnikov AK‑47 refle. Since then various short cartridges have been designed, together with appropriate rifles; the British EM2 rifle and 7 MM cartridge of the later 1940s was one of the first, followed by various Swiss and other designs, but there was considerable resistance to the whole idea in postwar years, which led to NATO standardisation of the 7.62 mm cartridge a round which was only slightly less powerful than the .30 and .303 rounds which it replaced. In the late 1950s, though, the Armalite Company devolved the 5.56 MM round together with their AR‑15 rifle, and this brought about a resurgence of interest in assault rifle and short cartridge design. At the time of writing, a full scale trial is being conducted by the NATO countries to decide upon a short cartridge for future standardisation. The small size of the assault rifle, with its ability to fire automatic at rates up to 800 rounds a minute, has led to it being adopted by various forces as a replacement for the submachine gun, and there is every likelihood that this trend will continue in the near future. " According to the New Encyclopedia Britannica, Volume 10, an assault rifle is defined as under: "ASSAULT RIFLE: Military fire‑arm that is chambered for ammunition of reduced size or propellant charge and that has the capacity to switch between semi automatic and fully automatic fire. Because there are light and portable yet still able to deliver a high volume of fire with reasonable accuracy at modem combat ranges of 300‑500m (1,000‑1,600 feet), assault rifles have replaced the high-powered bolt action and semi‑automatic rifles of the World War II era as the standard infantry weapon of modem armies. Their case of handling makes them ideal for mobile assault troops crowded into personnel carries or helm‑copters, as well as for guerrilla fighters engaged in jungle or urban warfare. Widely used assault rifles are the United States' M 16, the Soviet klashnikov (the AK‑47 and modernized versions), the Belgian FAL and FNC and the German G

3. Assault rifles operate by using either propellant gases or blowback forces generated by a fired round to force back the bolt, eject the spent cartridge case, and cock the firing mechanism. A spring then pushes the bolt forward as a fresh cartridge is fed into the chamber, and the gun is fired again. Cartridges are fed into the guns from magazines holding as many as 30 rounds. Many assault rifles have attachments for grenade launchers, sniperscopes, and bayonets. In those countries where assault rifles can be purchased in the civilian market, their sale is subject to various restrictions, such as the elimination of automatic action and the capacity to fire high-performance military ammunition. "

8. To bring the case within the purview of para. (c) above noticed, the weapon in question has to qualify as an assault rifle and then it has to be a light or a heavy automatic weapon or a semi‑automatic weapon. The question thus is whether a 7 MM rifle was or was not an assault rifle and also whether the same was or was not a light or heavy automatic or semi‑automatic weapon.

9. From the above description of an assault rifle it is evident that a 7 MM rifle is not an assault rifle nor is this rifle a light or heavy automatic rifle or even a semi‑automatic rifle. In this view of the matter we find that the assumption of jurisdiction by the learned Special Court in the present case was erroneous and we declare the same, alongwith the impugned order dated 14‑9‑1994, to 'be illegal and of no legal effect.

10. Consequently, this writ is allowed and the case arising out of F.I.R. No.281 of 1994 of Police Station Thikri Wala of District Faisalabad presently pending in the Court of the learned Special Court abovementioned at Faisalabad is ordered to be returned to the S.H.O. of the concerned Police Station who shall then submit the same to a learned Magistrate empowered under Section 190, Cr.P.C. for proceedings in accordance with law. There shall be no orders as to costs. N.H.Q./S‑32/L Petition allowed.