P L D 1993 Peshawar 25 (PLP)

ABDUL KARIM KHAN KUNDI, J: ‑‑The learned Special Judge, Bannu proceeded with a joint trial of Sher Qadir appellant on the charges of murder, possession of Russian‑made hand‑grenade, an explosive substance and further possession of one .12 bore pistol: alongwith two live cartridges without licence, respectively, under section 362, P.P.C., section 5 of Explosive Substances Act, 1908 and section 13, Arms Ordinance. The charge‑sheet framed and read over to the appellant and underneath his reply recorded were signed by the Presiding Officer of the Court as a Special Judge. He, however, recorded the evidence underneath his signatures describing his rank and status as Sessions Judge. The judgment at last was once again recorded by him as a Special Judge and by his judgment and order dated 7‑12‑1991 he recorded the conviction of the appellant on all the three charges and sentenced him to death and different imprisonments. The trial Court made a reference for confirmation of the death sentence and convict filed an appeal against his conviction ands sentences, and we propose to dispose of the two matters as follows:‑‑

2. Learned counsel for the convict‑appellant, learned Assistant Advocate‑General and Mr. Sanaullah Khan Gandapur learned counsel for the complainant were, in the first instance, not definite if the Special Court could also at the same time proceed with the trial of the appellant on the charge of possession of explosive substance alongwith charge of murder under section 302, P.P.C. and charge of possession of N.P. Bore pistol under section 13, Arms Ordinance. They asked for a time and today they assisted the Court very ably by first referring to the provisions of Suppression of Terrorist Activities (Special Courts) Act, 1975 (Act XV of 1975) which statute has provided for the constitution of a Special Court which has been vested with exclusive jurisdiction for the trial of scheduled offences and originally the schedule of offences was not found also to include the offences under section 302, P.P.C. and section 13, Arms Ordinance. However, by Ordinance No.1 pf 1987 a new sub‑para (ii‑a) was added to the Schedule and the 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 transaction in which an offence specified in this paragraph or paragraphs (,b) and (c) is committed or in addition to or in combination with such offence. This Ordinance was superseded and followed by Act No.IX of 1987. It was contended by the learned counsel for the appellant and also agreed to by the learned Assistant Advocate‑General that in the facts and circumstances of the case the offence under section 302, P.P.C. was neither committed in the course of the transaction of the commission of the alleged offence under the Explosive Substances Act nor in addition to or in combination therewith because the allegation contained in the F.I.R. first reported the commission of the offence under section 302, P.P.C. and when afterwards the accused was fleeing away he allegedly displayed something like a bomb to harass the public in order to prevent his apprehension. Again he was later on arrested under section 54, Cr.P .C. vide a `Naqal Mad' the same day after the occurrence in the first instance that there was recovered a bomb or grenade from his pocket alongwith two .12 bore live cartridges, while earlier a .12 bore pistol was recovered from the spot allegedly thrown back by him. The contention forwarded by the learned counsel for the convict and the learned Assistant Advocate‑General appears to be correct that the main offence herein committed was the murder and possession of explosive substance in a bomb or grenade at the time of the commission of the murder under suspicious circumstances was a secondary offence also subsequently committed as and when a certain grenade/bomb was recovered from the convict at the time of his arrest after the occurrence. An offence under section 13, Arms Ordinance vis‑a‑vis the possession of an unlicensed .12 bore pistol and .12 bore two live cartridges is not a scheduled offence and the Special Court could not, therefore, try the said offence.

3. There has been made a special provision in section 4(2) of Act NO.XV of 1975 that if in course of a trial before the Special Court, the Court is of the opinion that any of the‑offences which the accused is alleged to have committed is not a scheduled offence, that Court shall record such opinion and try the accused on for such offence, if any, as is a scheduled offence (underlining is mine). The provision of the statute has not been found happily worded. The employment of word "only" and on the other hand, the employment of word "as" do not reconcile with each other. In fact, this provision of law would mean that the Special Court shall proceed with the trial of only scheduled offence and the trial of other offences shall be left to other Courts with jurisdiction. In 1991 MLD 2029 (DB) one of the offences was a scheduled offence, while the other was unscheduled offence. The High Court held that the Special Court has no jurisdiction to try an unscheduled offence and accordingly the order of conviction and sentence for unscheduled offence was declared without jurisdiction which also vitiated the whole trial and the case was remanded for retrial. The authority would substantiate the view point of this Court vis‑a‑vis the interpretation of subsection (2) of section 4 of Act NoXV of 1975 that the Special Court shall only try scheduled offences and not unscheduled offences along. In NLR 1991 Criminal 329 offences under section 13, Arms Ordinance were declared not triable by Special Court and accordingly conviction and sentences recorded by the Special Court for offences which were not specified in the Schedule as above were set aside and State was directed to submit challan in competent Court of a Magistrate for trial, if so desired.

4. Consequently, we accept this appeal, set aside the conviction and sentences of the appellant on all the charges and remand the case to the Special Court for trial of the appellant on the charge under the Explosive Substances Act; 1908. We further remand the case for trial by Additional Sessions Judge, Bannu on the charge under section 302, P.P.C. We also direct the State that if it deems proper it may submit a challan for the trial of the appellant on the charge under section 13, Arms Ordinance before a competent Court of a Magistrate. The death sentence awarded to the convict appellant stands not confirmed and the murder reference is consequently dismissed. N.H.Q./1412/P??????????????????????????????????????????????????????????????????????????????????????????????????????????? Case remanded.