Appellant Muhammad Hanif was.Tried by Mrs. Qaiser lqbal, IInd Additional Sessions Judge (West)
Karachi, for the offence under section 13-E of the Arms Ordinance, 1965, who found him guilty and vide judgment, dated 18-7-1990, sentenced him to suffer R:I for three years and to pay a fine of Rs.1,000 or in default to suffer S.I. For six months.
2. During the course of investigation of Crime No.115 of 1988, Baldia Town Police Station, under sections 302, 307, 427/34, P.P.C., the appellant was arrested and he while in custody led the police party to his house situated in Gujrat Colony, Karachi, and from there produced a Chhuri used in the said crime. Since the blade of the said Chhuri was of more than four inches and the appellant had no valid licence for the same, a separate case being Crime No.118 of 1988, Baldia Town Police Station, under section 13-E of the Arms Ordinance, 1965, was registered against him and after usual investigation he was sent up to stand trial in this case alongwith main case.
3. At the trial the prosecution examined Hasib (P.W.1), Rizwan (P.W.2) and Malik Muhammad Nawaz, S.I.P., (P.W.3).
4. The appellant disowned the allegation by claiming innocence. He examined himself on oath (D.W.1), but led no other evidence.
5. On the assessm ent of evidence available on record the learned Additional Sessions Judge found the appellant guilty for the said offence and convicted him accordingly.
6. I have heard Mr. Khawaja Naveed Ahmad, learned counsel for the appellant and Mr. S.Z.A.
Qureshi, learned counsel for the State.
7. I need not enter into the merits of the case as the trial of the appellant by Additional Sessions Judge for the offence under section 13-E of the Arms Ordinance, 1965, was coram non, judice and the conviction recorded against him is a nullity in the eye of law.
8. Section 14-A of the Arms Ordinance, 1965 which was added in the year 1976, has ousted the jurisdiction of Sessions Judge, Additional Sessions Judge, and Assistant Sessions Judge, to try such cases in the following words:-- "(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 tar military stores referred in the proviso to the said section 13 be triable by a Magistrate of the first class.
(2) All cases relating to the offences triable by a Magistrate of the first class under subsection (1) and pending in a Court of Session immediately before the commencement of the Pakistan Arms (Amendment) Ordinance, 1976, in which the charge had not been framed shall, on such commencement stand transferred to the Court of the Magistrate of the First Class having jurisdiction over such cases."
9. The following cases lend support to the view expressed by me in para. 7 ante:-
(i) Falak Sher v. The State 1987 MLD 1156,
(ii) Ghulam Farid v. The State 1987 MLD 1247,
(iii) Tariq Khan v. The State 1987 MLD 1735,
(iv) Muhammad Salim v. The State 1987 MLD 2023,
(v) Muhammad Anwar v. The State 1987 P Cr. L J 2049,
(vi) Muhammad Tahir v. The State 1988 MLD 143,
(vii) Muhammad Siddiq v. The State 1988 P Cr. L J 1855,
(viii) Allah Bakhsh v. The,State 1988 P Cr. L J 2133,
(ix) Muhammad Tahir v. The State PLD 1989 Pesh.162,
(x) Mahmood alias Sultan Mehmood v. The State 1989 MLD 4827,
(xi) Asal Khan v. The State 1990 P Cr. L J 449,
(xii) Ataullah Khan v. The State 1991 P Cr. L J Note 6 at page 4,
(xiii) Sudheer v. The State 1991 P Cr. L J 736,
(xiv) Akbar Khan v. The State 1991 MLD 1829.
10. Out of the above citations the cases at serial Nos.(i) to (v) and (ix) to (xii) are D.B. Judgments. In all these cases section 14-A of the Arms Ordinance, 1965, which was inserted by the Pakistan Arms (Amendment) Ordinance, 1976, was examined and it was held that the offences falling under section 13 or section 14 shall, unless they have been committed in respect of any of the arms, ammunition or military stores referred to in the proviso to section 13 shall be triable exclusively by a Magistrate of the First Class. In the case of Muhammad Anwar v. The State reported in 1987 P Cr. L J 2049, a Division Bench of the Lahore High Court made the following observations:-- "Before parting with this judgment we are tempted to point out that where an accused is alleged to have used an arms (not covered by proviso to section 13 of the Arms Ordinance, 1965) in the commission of an offence triable by Court of Session, his trial under Arms Ordinance must be held by Sessions Judge/Additional Sessions Judge trying the main offence, to avoid possibility of conflicting judgments by the two different Courts on the point of possession of arms by the accused i.e., one given by the Sessions Judge/Additional Sessions Judge trying the main offence and the other by Magistrate 1st Class trying the offence under Arms Ordinance, 1965. To avoid cropping up of such a situation, the Government concerned may take steps for suitably amending the relevant provision of law."
11. In the case of Asal Khan v. The State reported in 1990 P Cr. L J 449 (referred to at Serial No.Xi), the provisions of sections 235 and 239, Cr.P.C. Were examined in relation to section 14-A of the Arms Ordinance, 1965, and it was observed as follows:-- "It shall thus be seen that both the provisions of section 235 read with section 239 of the Code were attracted to the case in hand because the appellant was alleged to have committed the offence of murder under section 302, P.P.C. With .12 bore shotgun allegedly recovered from his possession and for which he could not produce any licence and was triable under section 13 of the Ordinance, yet in view of the provisions contained in section 14-A thereof read with the provisions of subsection
(1) of section 29 of the Code the offence which was the subject-matter of appeal in hand was not triable by the Additional Sessions Judge but was triable by a Court of Magistrate 1st Class having jurisdiction in the area."
12. As the First Class Magistrate had the exclusive jurisdiction to try the case against the appellant under section 13-E of the Arms Ordinance, 1965, the cognizance taken by learned IInd Additional Sessions Judge (West) Karachi against him was illegal and the conviction awarded to him is without jurisdiction. Consequently the conviction recorded against the appellant is set aside and the appeal is allowed.
13. The appellant, who has remained in custody for a long time, has already suffered a punishment which in ordinary course could have been awarded to him. In such a situation the retrial of the appellant is not called for. The appellant who is presently in custody be released forthwith, if not required in any other case.