Muhammad Kamran Khan Mulakhail, J.--Through this Criminal Acquittal Appeal under Section 417 of the Criminal Procedure Code, 1898 ("the, Cr.P.C.") learned Deputy Prosecutor General ("DPG") seeks reversal of the order dated 8th October 2013 ("the impugned order") passed by the learned Judicial Magistrate. Dhadar ("the trial Court"), in judicial case No, 13 of 2013 vide FIR No, 24 of 2013 under Section 13-E of the Pakistan Arms Ordinance, 1965 ("the Ordinance").
2. It is the case of prosecution that on the fateful day at about 9:10 p.m. a Kalashnikov Bearing No, 3341 along with three magazines containing 176 live cartridges were recovered from the respondent Muhammad Rafiq son of Haji Khan. The record reveals that after completion of investigation, challan of the case was received by District Attorney, Sibi on 20th August 2013, which was transmitted to the learned trial Court for onward transmission to the competent Court of law, however, for the reasons best known to the learned trial Court instead of transmitting the challan of the case to the learned Sessions Judge, Sibi the trial Court retained the same and issued production warrants of the respondents on 9th September 2013. The charge was framed and the statement of the complainant viz Shah Nawaz, Dafedar was recorded and after receiving an application under Section 249-A, Cr.P.C., acquitted the respondents through the impugned order, operating portion whereof reads as under: "In conclusion; the Court has perused the record and thoroughly analyzed [sic] the application's grounds. Hence; the Court at this stage is inclined to accept the application and dispose of the case on the basis of application under Section 249-A, Cr.P.C."
3. Mr. Jameel Akhtar, learned DPG contended that the impugned order passed by the learned trial Court is contrary to law, facts and justice; the learned trial Court has not applied its judicial mind to the facts and circumstances of the case and has passed an order, which cannot be termed as a speaking order; neither the facts of the case nor the contentions of the public prosecutor have been mentioned in the impugned order for forming the opinion. He added that the material witnesses i.e, recovery witnesses and the statement of I.O. Were yet to be recorded, while the learned trial Court has passed the impugned order in a hasty manner, which may be the result of colourful exercise, which has caused serious prejudice to the appellant and resulted into miscarriage of justice, therefore, the same is liable to be set aside.
4. When Mr. Muhammad Ashraf, Advocate appearing on behalf of respondent was confronted with the contention raised by the learned DPG, he while feeling himself not in a position to defend the impugned order frankly, conceded and fairly suggested that it would be appropriate to remand the case to the trial Court for its onward transmission to the learned Sessions Judge concerned.
5. This appeal was filed on 28th December 2013 and on two consecutive dates matter could not be heard due to the office objections and came up for hearing at Katcha Peshi stage on 23r April 2014, when it was admitted to regular hearing and notice was issued to the respondent and complainant/PW-1 viz Shahnawaz Dafedar. The Inspection Branch of this Court was also enquired about the passing of acquittal order by the learned Judicial Magistrate, Dhadar, where after the explanation furnished by the Presiding Officer was placed on record. On perusal of explanations the inspection branch shows, its discontentment to the reply and the explanation was not found satisfactory. The explanations submitted by the learned judicial officer reveal that he misconstrued the law and had taken a stance that since the District Public Prosecutor forwarded the challans of connected cases to his Court, therefore, he retained the challan of the instant case, in which offence under Section 13-E of the Ordinance in respect of recovery of Kalashnikov was involved.
6. Section 190 of the, Cr.P.C. And Section 14-A of the Ordinance are applicable in this case, therefore, it would be appropriate to reproduce both the relevant provisions from referred to enactments: Criminal Procedure Code, 1898.
"190. Counizance of offences by Magistrates.--All Magistrates of the first class, or any other Magistrate specially empowered by the Provincial Government on the recommendation of the'High Court may take cognizance of any offence:
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a report in writing of such facts made by any police-officer, or upon his own knowledge or suspicion.
(c) upon information received from any person other than a police-officer, or upon his own knowledge or suspicion. that such offence has been committed which he may try or send to the Court of Sessions for trial.
(2) A Magistrate taking cognizance under sub-section (1) of an offence triable exclusively by a Court of Session shall, without recording any evidence send the case to Court of Session for trial.
Pakistan Arms Ordinance.
1965.
14-A. Certain offences triable by Magistrates. --(1) Notwithstanding anything contained in the Code of Criminal ' Procedure, 1898 (Act V of 1898), an offence punishable under Section 13 or Section 14 shall, unless it has been committed in respect of any of the arms, ammunition or military stores referred to in the proviso to the said Section 13, be triable by a Magistrate of the first class. "
Keeping in view the referred to provisions, it would be more helpful to reproduce the provisos to Section 13 of the Ordinance, which reads as follows: "13. Penalty for breach of Sections 4, 5, 8 to 11.
Subject to. Section 13-A whoever commits any of the following offences, namely; (a)... (b).,. (c)., (d)... (e)... (g)... (h)... (i)...
Provided that the punishment for an offence committed in respect of any;
(a) cannon, grenade, bomb or rocket; or
(b) light or heavy automatic weapon, rifle of .303 bore or over, musket of .410 bore or over or pistol or revolver of .441 bore or over, or ammunition which can be fired from such weapon, rifle, musket, pistol or revolver, ' shall be imprisonment for a term which is not less than three years: ' Provided that the punishment for an offence committed in respect of any rifle of .303 bore or over, musket of .410 bore or over, pistol or revolver of .441 bore or over, or ammunition which can be fired from such musket, pistol or revolver, shall be imprisonment for a term which is not less than three years."
' Under Section 14-A of the Ordinance, the magistrate had jurisdiction to try the offences punishable under Sections 13 and 14 of the Ordinance except the offences of any arms and ammunition referred to in the provisos to Section 13 of the Ordinance. The Kalashnikov is covered by the proviso to Section 13 of the Ordinance therefore, the learned magistrate had no jurisdiction to try the case, hence the trial and proceeding conducted by the magistrate were 'corum non judice'. Whilst subject to sub-section (2) of Section 190 of the, Cr.P.C., the learned Judicial Magistrate was bound to send the case to the Court of sessions for trial without recording any evidence. He was in fact, required to take cognizance of such a matter to enquire into the case and to apply his mind to whatever material is placed before him by the police or the complainant to determine, whether the allegation made in the police report, private complaint or information received by him, make out a prima facie case triable exclusively by the Court of sessions or not. He could have also taken cognizance of the cases exclusively triable by the Court of sessions, but only to the extent of determining the forum of trial. Reliance in this behalf is placed upon the case of Mehar Khan v.
Yaqoob Khan, reported in 1981 SCM R 267.
7. However, the explanation furnished by the learned Judicial Magistrate with regard to the recommendation of District Public Prosecutor for trial of connected cases is also misconceived and shows obliviousness of learned presiding officer, because the mandate conferred upon him under Section 190, Cr.P.C. Is silent about the recommendation of public prosecutor, and it provides complete powers to a magistrate to decide whether the case is triable by him or is exclusively triable by the Court of sessions. Section 28 of the, Cr.P.C. Is relevant to understand the controversy, which reads as follows: "28. Offences under Penal Code. Subject to the other provisions of this Code any offence under the Pakistan Penal Code may be tried:
(a) by the High Court; or
(b) by the Courts of Sessions; or
(c) by any other Court by which such offence is shown in the eight column of the second schedule to be triable.
' Illustration ' A is [tried by] the Session Court on a charge of culpable homicide. He may be convicted of voluntarily causing hurt, an offence triable by a Magistrate. "
' In view of referred to provision of the, Cr.P.C. No cavil is left to hold that, firstly, when an offence exclusively triable by a Court of Judicial Magistrate comes together as a part of one charge sheet in which the major offence is exclusively triable by the Court of Sessions, the Section 28, Cr.P.C. Will come into play and the case shall be tried by the Court of sessions. Secondly, adhering to this principle suffice is to say for the benefit of all concerned that two different cases of cross-versions one triable by the Courts of sessions and the other triable by the Court of judicial magistrate, shall necessarily be tried by the Court of sessions and thirdly, the connected cases one triable by the Court of Session and the other triable by the Court of judicial magistrate shall also be tried by the Court of sessions. For instance a case of culpable homicide followed by another case of recovery of arms being off-shoot of the main case shall also be tried by the Court of sessions, irrespective of the fact that the arms case does not fall within provisos to Section 13 of the Ordinance and comes within the purview of Section 14-A of the Ordinance, which in ordinary course is exclusively triable by the Court of judicial magistrate.
Thus, in view of above observation the explanation furnished by the learned judicial magistrate to the effect that since challan in connected cases were passed and recommended to be tried by his Court and therefore, he retained the challan of the arms case pertaining to recovery of Kalashnikov, is totally misconceived being contrary to law and against the rule of prudence and principles of administration of justice falls within the proviso to Section 13 of the Ordinance and irrespective of its connectivity to any other case or whether it comes with a connected case or independently, in both situations, it shall be tried by the Court of sessions in view of Section 14-A of the Ordinance.
8. We have perused the impugned order passed by the learned trial Court, which does not contain any reason or grounds for acquittal of the respondents. The learned trial Court did not even bother to mention the detailed facts of the case for forming an opinion. It is observed with great disapproval and dismay that the learned trial Court without discussing the contentions of the learned public prosecutor, abruptly came to the conclusion mentioned hereinabove. The impugned order is not at all a speaking order and in no manner can be called "judicial order within the parameters of law". The contents of the impugned order manifest non-application of judicial mind. This Court has time and again disapproved passing of such perfunctory orders. In this regard reference can be placed on the case of Muhammad Iqbal v. Secretary Ministry of Industries of Pakistan, (PLD 2004 SC 413), wherein the Hon'ble Supreme Court held as under: "3. It may be noted that the forums seized with the judicial matters are required to pass such a speaking judgment that it should give an impression to readers that the legal and factual aspects of the case which were raised before it for the purpose of decision haye been considered and decided in the light of recognized principles of law on the subject instead of disposing of in slipshod manner.
4. We have noted with great concern that in instant cases although the pleadings of the parties had been reproduced through and through but the contentions of the parties and the points on which they were resting their cases were not taken into consideration at all. Be that as it may, in these circumstances, both the sides stated that instead of allowing the petitions to remain pending on the file, if leave is granted, the cases may be remanded tq the Service Tribunal for fresh decision after providing opportunity of hearing to all concerned, keeping in view the observations made hereinabove."
9. Before parting with the judgment in hand we have painfully observed that the learned trial Court has passed the impugned order in hasty manner without adhering to the relevant provision of law.
We have also observed that the impugned order has admittedly been passed in violation of all norms of dispensation of criminal justice and without authority.
10. In such view of the matter without commenting on merits and demerits of the case, as it would prejudice the case of the either party. The order impugned being sketchy, non-speaking and devoid of reasons and being assessed without jurisdiction is hereby set aside and the case is remanded back to the learned trial Court for its onward transmission to the concerned Sessions Judge for denovo trial. The appeal is accordingly disposed of.
11. Copy of this order be placed before the Administrative Committee of this Court for taking appropriate action against the incumbent official. We are also left with no other option but show our concern to the performance of the concerned Deputy Commissioner while not taking any action against the complainant Shah Nawaz, Dafedar, who prima-facie seems to have joined the hands with the criminals just to save them from the clutches of law. The record reveals that statement of recovery witnesses were recorded and the investigation of the case was conducted by the police officials, however, neither any departmental action has been taken against Shah Nawaz complainant nor the machinery of criminal law has been set in motion by lodging of FIR against the, said Shah Nawaz under Section 182 and 211, Cr.P.C.
' Copy of this order be sent to Inspection Branch of this Court for onward transmission to all the Courts of criminal jurisdiction. Copy be also sent to the concerned Deputy Commissioner (District Kachhi).
PIA 2015 Cr.C. (Lahore) 669 [Multan Bench Multan] Present: JAMES JOSEPH, J.
GHULAM QADIR--Petitioner versus STATE and another--Respondents Cr1. Misc. No, 6766-B of 2014, decided on 8.1.2015.
Criminal Procedure Code, 1898 (V of 1898)-- ----S. 497--Pakistan Penal Code (XLV of 1860) Ss. 382, 379 & 411--Post arrest bail, admitted-- Further inquiry--Delay in lodging FIR-- Challan submitted--Doubt in prosecution story--Allegation of abatement against petitioner was not supported by any other independent evidence--Petitioner was behind bar since his arrest--Investigation against petitioner was completed- Petitioner was stated to be non convict and there was no record against petitioner-- No useful purpose would be served by keeping petitioner behind bar for an indefinite period--Post arrest bail admitted. [P. 670] A & B Prince Rehan Iftikhar Sheikh, Advocate for Petitioner.
Mr. Muhammad Ali Shahab, DPG for State.
Nemo for Complainant.
Date of hearing: 8.1.2015.
' Ghulam Qadir s/o Mahmand petitioner seeks after arrest bail in case FIR No, 376 dated 18.9.2014 for offences under Sections 382, PPC (later on offence under Section 382, PPC deleted and offences under Sections 379/411, PPC were added) registered at P.S. Kassowal, District Multan.
2. Briefly the prosecution story as unfolded in th? FIR is that the assailants forcibly took the cattle belonging to the complainant in the night between 26/271h of December, 2013.
3. I have heard the arguments of the learned counsel for the parties.
4. There is a delay of about nine months in lodging of the FIR which has not been explained which has created doubt on the prosecution story. The allegation of abatement against the petitionei is not supported by any other independent evidence. The offence under Section 382, PPC stands deleted during the course of investigation whereas the offences under Sections 379/411, PPC has been added which do not fall within the prohibitory clause of Section 497, Cr.P.C. The petitioner is behind the bars since his arrest. Investigation against the petitioner is complete. Challan has been submitted before the learned trial Court where reportedly the trial has not commenced so far. Lie is stated to be non convict and there is no record against him. No useful purpose would be served by keeping the petitioner behind the bars for an indefinite period.
5. For the reasons recorded above, the matter to the extent of the petitioner becomes one of further inquiry. Resultantly, this petition is allowed and the petitioner is admitted to post arrest bail subject to his furnishing bail bonds in the sum of Rs,2,00,000/- (Rupees two lac only) with one surety in the like amount to the satisfaction of the learned trial Court. The observations made in this order are tentative in nature.
Bail admitted.