Appellant Muhammad Irshad was tried by Mr. Allah Rakhio Leghari, IInd Additional Sessions Judge (South) Karachi, for the offence under section 13-D of the Arms Ordinance, 1965, who found him guilty and vide judgment, dated 27-8-1990 sentenced him to suffer R.I. For one year. By this appeal filed under section 410, Cr.P.C. The appellant has challenged his conviction and sentence.
2. On 14-11-1984 the appellant who was wanted in Crime No.251 of 1984, Defence Police Station under section 302, P.P.C. Was arrested by Muhammad Usman S.H.O.; Defence Police Station, who recovered one Chhuri (butcher's knife) from his possession. Since the appellant had no valid licence for this Chhuri, a separate case, being Crirhe No.252 of 1984 was registered against him under section 13-D of the Arms Ordinance, 1965. After usual investigation the appellant was challaned alongwith the main case of murder.
3. The appellant pleaded not guilty and claimed a trial. At the trial the prosecution examined Gayoor Khan alias Qayyum Khan (P.W.1), and Muhammad Usman S.H.O. (P.W.2).
4. In his statement recorded under section 342, Cr.P.C., the appellant has denied the case of the prosecution by stating that no recovery was made from his possession. He has examined himself on oath, but led no defence.
5. On the assessm ent of evidence available on record the learned Additional Sessions Judge found the appellant guilty and convicted him accordingly.
6. I have heard Mr. Fazal Dad Khan, 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 tile case as the trial of the appellant by Additional Sessions Judge for the offence under section 13-D 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 or 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 offence 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 1988 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 Sadiq 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 and
(xiv) Akbar Khan v. The State 1991 MLD 1829.
10. In the case of Asal Khan v. The State reported in 1990 P Cr. L J 449, the provisions of sections 235 and 239, Cr.P.C. Were considered in relation to section 14-A of the Arms Ordinance, 1965, and it was held:-- "I am afraid this is not the correct conclusion and I would respectfully disagree with my learned brother Muhammad Ishaq Khan, J. The reason for my conclusion is that since a forum for the trial of such an offence has been mentioned in the Ordinance in section 14-A, the provisions of subsection
(1) of section 29 of the Code are attracted and without regard to the provisions of sections 235 and 239 of the Code this offence was to be tried by a Magistrate of the First Class having jurisdiction in the area. It is immaterial that no corresponding amendment was made in the Second Schedule to the Code in order to bring it in conformity with the provisions of section 14-A of the Ordinance, for the simple reason that the provisions of subsection (1) of section 29 of the Code are very clear:"
11. Out of the above citations the cases at Serial No.(1) to (v) and (ix) to (xi) 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."
12. As the First Class Magistrate had the exclusive jurisdiction to try the case against the appellant under section 13-D of the Arms Ordinance, 1965, the cognizance taken by learned and Additional Sessions Judge (South) A 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 has almost completed the sentence awarded to him. In such a situation his retrial is not called for. The appellant who is in custody be released forthwith, if not required in any other case.