Iftikhar Ahmad, petitioner, was arrested on 7-5-1990 on the charge fort having been in possession of 5 rounds in excess of the permissible number as per the licence for a pistol of .30 bore, wherein he was entered as retainer.
2. When produced before the Resident Magistrate, Kalu Khan next morning, the petitioner pleaded guilty to the charge framed against him under section 13 of the Arms Ordinance. He was consequently convicted thereunder and sentenced till rising of the Court and also to pay a fine of Rs, 40 or, in default of payment of fine, to suffer further three days' R.I.
3. The petitioner, however, called into question the aforesaid order before the learned Addl.
Sessions Judge-II, Swabi, inter alia and mainly, on the ground that although the number of rounds were in excess of the initial permissible number i,e, 25, yet vide subsequent order of the competent authority this number was enhanced to 50 and as such, having committed no offence, he could not be convicted or sentenced on such a misconceived plea of guilty.
4. The learned appellate Court, while agreeing with the factual aspect of the case, partially accepted the appeal vide judgment dated 28-6-1990 by altering the sentence to the fine imposed only. Hence the instant petition.
5. I have heard Mr. J.D. Akbarji, Advocate, who appeared on behalf of Mr. Tariq Pervaiz, Advocate, the learned counsel for the petitioner and Mr. K.G. Sabir, Advocate, learned counsel for the State at length and also perused the record with considerable degree of care.
6. The sole question that falls for determination is as to what consequences would a plea of guilty entail when the charge is based on an act, which under the law, does not constitute an offence altogether.
7. In his impugned judgment, the learned Addl. Sessions Judge, although conceded the proposition on the factual premises in that the act of the petitioner does not fall within the mischief of section 13 of the Arms Ordinance yet simply on the ground that he has pleaded guilty to a charge, albeit ill- framed, he held him guilty and maim the sentence in so far as the fine was concerned.
8. I am afraid the learned Addl. Sessions Judge has clearly fallen in error by holding the petitioner liable to sentence, his act complained of constituting no offence notwithstanding. For, the co- called plea of guilty to a charge in the instant case, is no more than an admission on the part of the accused-petitioner to the effect that he had committed the act which was alleged to be an offence, but whether such an act did or did not constitute an offence, in the eye of law, is obviously one for. The Court to decide and the accused cannot be convicted and sentenced on the plea of guilty to such a charge simpliciter.
9. Viewed in the perspective of the foregoing discourse, I am clear in my mind that the petitioner herein could not be convicted in the circumstances nor his sentence was in accordance with law.
10. Resultantly, while allowing this petition, I set aside the conviction and sentence of the petitioner and acquit him of the charge manifestly framed erroneously against him.
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