1. In these three appeals common questions of law are involved, therefore, the same arc being disposed by this consolidated judgment.
2. These three appeals are .The off-shoots of the main case being Criminal Appeal No.12 of 1992, they are connected as they arise out of the same incident.
3. In Criminal Appeal No.13 of 1992, the appellant is Hameer son of Sahib Dahri who was tried by the learned Additional Sessions Judge, Kandiaro and vide judgment, dated 20th May, 1987, he was convicted under section 13-D Arms Ordinance and sentenced to R.I. For 3 years, as he was found in possession of a .12 bore single barrel gun and two live cartridges for which he had no licence: The appellant has challenged his conviction and sentence through this appeal.
4. In Criminal Appeal No.14 of 1992, the appellant is Haji Ahmed son of Faqir Muhammad who was tried by the learned Additional Sessions Judge, Kandiaro and vide judgment, dated 20th May, 1987 he was convicted under section 13-D Arms Ordinance and sentenced to R.I. For 3 years as he was found in possession of a .12 bore single barrel gun and 3 live cartridges for which he had no licence.
5. The appellant has challenged his conviction and sentence through this appeal.
6. In Criminal Appeal No.15 of 1992, the appellant is Haji Mashooq son of Misri Khan who was tried by the learned Additional Sessions Judge, Kandiaro and vide judgment, dated 20th May, 1987 he was convicted under section 13-D Arms Ordinance and sentenced to R.I. For 3 years as he was found in possession of a pistol and 2 live cartridges for which he had no licence: The appellant has challenged his conviction and sentence through this appeal.
7. Briefly, the facts of the case are that on 16-12-1986 S.H.O. Rafiuddin Khoso of P.S. Kandiaro alongwith his staff were on patrol duty, when they reached the road leading from Halani to Mehrabpur, it was 7-00 p.m. At that time when they saw the road was blocked. By means of stones of different sizes.
8. On the light of their vehicle, they saw 5 persons duly armed approaching their vehicle, the S.H.O.
9. Gave warning on which the accused started firing which was also replied by the police. After about 10 minutes all the accused surrendered to the police. The personal search of the accused was taken in presence of Mashirs, A.S.I. Fida Hussain Shah and H.C. Muhammad Mithal, which resulted in the recovery of one .12 bore single barrel gun and 2 live cartridges from accused Hameer, from accused Haji Ahmed one .12 bore single barrel gun with 3 live cartridges, from accused Haji Mashooq one .12 bore local made pistol, and 2 live cartridges, from accused Jan hatchet was recovered and from accused Rasool Bux one Lathi was recovered. All the accused were arrested under a common Mashirnama of recovery and arrest. Thereafter the accused and the property were brought to P.S. Kandiaro where S.H.O. Rafiuddin Khoso lodged the report in respect of the main "case under section 307/353/402, P.P.C. And he also lodged separate F.I.R. Under section 13-D Arms Ordinance in respect of each accused, namely, Hameer, Haji Ahmed and Haji Mashooq. After registration of the cases he himself took up the investigation and challaned all the five accused in the main case and also separately challaned accused Hameer, Haji Ahmed and Haji Mashooq for offence under section 13-D Arms Ordinance.
10. At the trial the prosecution examined P.W.1 A.S.I: Fida Hussain Shah who acted as Mashir of recovery.
11. P.W.2 S.H.O: Rafiuddin Khoso was the seizing officer. At the conclusion of the prosecution evidence, the accused were examined under section 342, Cr.P.C. They denied the allegations and claimed to be innocent. The accused neither wished to be examined on oath, nor wanted to examine any defence witness. The accused were convicted thereafter, as already mentioned above.
12. I have heard Mr. Kazi Azizullah learned counsel for the appellants and Mr. Mushtaq Ahmed Amir Mahar Advocate for AA.-G. For the State. The latter has not supported the convictions of the three appellants for obvious reasons.
13. At the time of arguments, the learned counsel for the appellants has raised a legal point which goes to the very root of the matter therefore, the merits of the case are not being touched.
14. The moot point raised by the learned counsel for the appellants was, that the trial and proceedings held by the learned Additional Sessions Judge, Kandiaro was coram non judice, as the trial Court had no jurisdiction to try these cases, the same were triable by a First Class Magistrate within the meaning of sections 13 and 14-A of the Arms Ordinance.
15. In order to appreciate the legal point raised by the learned counsel for the appellants, I may refer to subsection (1) of section 14-A of the Arms Ordinance, 1905, which is reproduced as under:-- "14-A (1). Notwithstanding anything contained in the Code of Criminal procedure, 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."
16. From the perusal of section 1,4-A(l), it will appear, that as a general rule, all offences regarding arms and ammunition falling under section 13 or 14 shall be triable by a Magistrate of the First Class. But offences in respect of arms and ammunitions specified and described in the proviso to section 13, are not triable by a First Class Magistrate.
17. From the above discussion, it will therefore, appear that in every case of section 13-D, the bore and description of the recovered `arm' is the deciding factor which determines the jurisdiction of the Court to try the offence.
18. Keeping in view the above principle, the weapons recovered from the appellants in this case are 2 single barrel guns of .12 bore recovered from appellants Hameer and Haji Ahmed respectively and, pistol of .12 bore from Haji Mashooq. All these 3 weapons of .12 bore are not covered by the proviso to section 13 of the Ordinance, therefore, the cases of the appellants were triable by a Magistrate of the First Class and not by the Sessions Court. As such the conviction and sentences of the appellants are not sustainable as the trial of the appellants held by the Additional Sessions Judge, Kandiaro is clearly without jurisdiction.
19. There is yet another legal lacuna in this case which vitiates the judgment of the trial Court. In this regard it may be noted, that all the appellants were arrested at one and the same time therefore, the Mashirnama of arrest and recovery of arms from each of the appellants was common; as such, the Mashirs were also common. The prosecution chose to examine P.W.1 A.S.I. Fida Hussain Shah and P.W.2 S.H.O. Rafiuddin Khoso. Both these witnesses were required to be examined in 3 separate cases of the appellants, as each of the appellants was being tried separately. On perusal of evidence of these 2 witnesses, in all the 3 cases of the appellants, it appears that the learned trial Judge firstly recorded the evidence of these 2 witnesses in the case of appellant Hameer Dahri (Cr.
20. Appeal No.13 of 1992) and copied out the same evidence in the cases of appellants Haji Ahmed and Haji Mashooq. The only change was in the examination-in-chief portion with regard to the name of accused and the weapon recovered while the cross-examination portion has been copied out verbatim. The procedure adopted by the trial Court is not only illegal, but it also vitiates the judgment, as evidence recorded in one case, cannot be read as legal evidence in another case.
21. Even the statements of appellants recorded under section 342, Cr.P.C. Arc carbon copies. The R&P is before the Court, the original statements have been checked and it reveals all the questions formulated by the trial Court are common, with necessary spaces left blank, which have been filled up in ink under the hand of the learned trial Judge and there is no certificate as required I by section 364, Cr.P.C.
22. From the above discussion it will appear that the trial Court had no jurisdiction to try these cases.
23. Even otherwise this was a hasty trial in which unwarranted short cut methods were adopted by the trial Court vitiating the trial, therefore, I have no hesitation in holding that the conviction and sentences of the appellants are illegal as the same were awarded by a Court having no jurisdiction. Consequently, all the three appeals are allowed and the appellants are acquitted of the charges levelled against them.
24. By a short order, dated 14-5-1992, these appeals were allowed. These are the reasons for the same.
25. N.H.Q./H-325/K