1992 P Cr (PLP)

ALLAHDINO MEMON, J.--By this common order we propose to decide the above three appeals as they arise out of the same incident and the appellants were convicted at the same trial by a common judgment. The appellants were charged under section-392/34, P.P.C. and tried before the learned Judge, Special Court; (Suppression of Terrorist Activities) at Hyderabad, in Case No.297/1989, who has convicted them under sections 392 and 397 and sentenced them to suffer R.I. for five years on each count, and the sentences have been ordered to run concurrently vide judgment dated 28-1-1991. We have heard Messrs Jamil Ahmed Rajpar and Nibhando Khan learned counsel appearing for the appellants, Mr. Mohammad Zubair Qureshi learned counsel appearing for the State, and have gone through tshe R&P of the case. It was contended by the learned counsel appearing for the appellants that the offence under sections 392 and 397, P.P.C. could be tried before the learned Judge Special Court only if the weapons mentioned in Clause (3) of the schedule appended to the Suppression of. Terrorist Activities (Special Courts) Act, 1975 were used while committing the offence. It was further contended that there is no evidence available on record to show that any of the appellants was armed with any such weapon and therefore, the learned Judge, Special Court, had no jurisdiction to try the appellants, and subsequently the conviction of the appellants was illegal and without jurisdiction. Mr. Mohammad Zubair Qureshi learned counsel appearing for the State has conceded that unfortunately the prosecution has failed to lead clear evidence before the trial Court in order to show that the appellants or any one of them was armed with weapon covered by Clause (3) of the schedule, and therefore, it was a case for remand. In view of the contentions raised by the learned counsel, and the order which we propose to pass in these appeals, it is not necessary to state facts of the case in detail. It will suffice to say that in view of the clause (3) of the schedule the offences under sections 392 and 397, P.P.C. could be tried before the learned Judge (Special Court) if a cannon, grenade, bomb, rocket or an arm of a prohibited bore is used or any public property is stolen, destroyed or damaged, in the commission of the offence. Later on there was an amendment in the schedule and the following weapons were also included "light' or heavy automatic or semi-automatic weapons such as Klashnikov, G-III Rifle or any other type of assault Rifle." In the present case although according to the F.I.R. one of the accused was armed with Klashnikov but the complainant Dhani Bux has stated in cross examination that he cannot distinguish 7 MM Rifle from .303 Rift e, Klashnikov. The Mashirnama of recovery does show that a Klashnikov like 7 MM Rifle was recovered from appellant Ghulam Rasool but it appears that the weapons were not shown to the complainant when he was examined in the Court. Even the evidence of A.S.I. Mohammad Rafique P.W.2 does not specifically show that the weapons recovered from the accused were resent present in Court. Likewise Yar Mohammad P.W.3 an eye witness was also not shown any weapon and he did not support the prosecution. In cross-examination of APP he has stated that he had not seen any person armed with K .K. 7 MMs Rifle, country-made pistol and hatchet. The evidence of SIP Ghulam Rasool of C.I.A. P'W' 4 (who is wrongly mentioned as P.W;3) also shows that accused Ghulam Rasool was armed with Rifle like K.K. No Ballistic Expert was examined in order to prove the nature of weapons recovered from the appellants and therefore, there is substance in the contention of the learned counsel appearing for the appellants that the prosecution had failed to prove that the appellants were armed with such weapons at the time of incident which were covered Clause 3 the schedule. In view of the above factual as well as legal position, we allow these appeals, set aside the convictions and sentences of the appellants and remand the matter back to the learned Judge, Special Court, (Suppression of Terrorist Activities), Hyderabad, for examining Ballistic Expert in order to find out the nature of weapons recovered from the appellants, and to see whether the same were covered under Clause 3 of the Schedule. In this respect he will also send for the weapons from the courts where the appellants are being tried under Section 13-D of the Arms Ordinance. The prosecution as well as the defence will be at liberty to lead any additional evidence, and thereafter, the learned Judge, Special Court, shall decide whether he had jurisdiction to try the above case, if not, then the cases may be sent to the ordinary Court for trial in accordance with law. While we were dictating the short order, the learned counsel appearing for the appellants made a request for grant of bail to the appellants but since there was no written application filed by the appellants in this regard, we declined to consider the question of grant of bail. However, the appellants will be at liberty to move the learned Judge, Special Court, for grant of bail if so advised. H.B,T./M-1482/K.?????????????????????????????????????????????????????????????????????????????? Case remanded.