' Applicant Sher Muhammad alias Shera was tried by Mr. Hussain Bux Khoso, Ist Assistant Sessions Judge (South) Karachi, for the offence under section 13-D of the Arms Ordinance, 1965, who found him guilty for the said offence and vide judgment, dated 16th October, 1989, sentenced him to suffer R.I. For two years and to pay a fine of Rs,200 or in default to suffer R.I. For 15 days. The applicant challenged his conviction in Criminal Appeal No,18 of 1989, which was heard by Mr. Muhammad Afzal Khan, Ist Additional Sessions Judge (South) Karachi, who dismissed it vide judgment, dated 13th July, 1991. It is in these circumstances that the applicant has challenged both these judgments in this revision application filed under section 435/439, Cr.P.C.
2. On 6-8-1988 Noor Khan S.I.P. Of Chakiwara Police Station was patrolling when at 4-30 p.m. He detained the present applicant at Miran Naka and recovered one double-edged dagger and powder of heroin weighing 15 grams from his possession in presence of Mashirs Muhammad Bashir H.C. And Ali Hyder P.C. Such inventory was prepared on the spot. Since the applicant had no valid licence for the dagger a case being Crime No,359 of 1988 was registered against him at Chakiwara Police Station, under section 13-D of the Arms Ordinance, 1965. A separate case under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979, was also registered against the applicant at the same police station, being Crime No,358 of 1988. The applicant was sent up in both the cases and was convicted.
3. I have heard Mr. S.E. Hussaini, learned counsel for applicant and Mr. S.ZA. Qureshi, learned counsel for the State.
4. I need not enter into the merits of the case as the trial of applicant by Assistant 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.
5. 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 franked shall on such commencement stand transferred to the Court of the Magistrate of the First Class having jurisdiction over such cases."
6. The following cases lend support to the view expressed by me in para. 4 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 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 and
(xiv) Akbar Khan v. The State 1991 MLD 1829.
7. Out of the above citations the cases at serial Nos.(i) to (v) and (ix) to
(x) are D.B. Judgments. In all these cases section 14-A of the Arms Ordinance, 1%5, 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 exclusviely 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 arm (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."
8. As the First Class Magistrate had the exclusive jurisdiction to try the case against the applicant under section 13-D of the Arms Ordinance, 1965, the cognizance taken by learned 1st Assistant Sessions Judge (South) Karachi against him was illegal and the conviction awarded to him is without jurisdiction. Consequently the conviction recorded against the applicant is set aside and the revision is allowed.
9. The applicant has suffered the ordeal of the prosecution for a considerable long time. He has also remained in custody for a pretty long time during this period. In such a situation the retrial of the applicant is not called for. The applicant who is on bail in this case is discharged from his bail bond. In case he is in custody in the case under Article 3/4 of the Prohibition (Enforcement of Hadd)
Order, 1979, then the concerned Superintendent of Prison may be informed about this order.