' This appeal is against the judgment of 1st Additional Sessions Judge, South, Karachi dated 23-4- 1991 convicting and sentencing appellant under section 13-D of Arms Ordinance to suffer R.I. For two years and to pay fine of Rs,20,000 or in default to suffer R.I. For six months more.
2. On 20-4-1986 Inspector Ch. Inayat Ali of Special Squad along with Mr. Muhammad Usman Shahani, A.C.M South and other staff conducted a raid on a garage near Mir Azam Hotel, Street No,2, Old Haji Camp at 3-30 p.m. In presence of Mashirs from public Agha Feroze and Muhammad Zaheer. They found appellant sitting behind a Suzuki Pick-up and was selling Charas and opium.
Charas weighing 1 k.g. And opium weighing 1.3 k.g. And cash Rs,13,270 were recovered from his possession. He was arrested and on his personal search a double-edged dagger with rusted blade was recovered from right fold of his Shalwar. The appellant failed to produce any license for the same. These recovered articles were sealed in presence of Mashirs and the Magistrate and such Mashir name was prepared, and attested by them.
3. Appellant was challaned by the police in the Court, and after evidence was recorded he was convicted as mentioned hereinabove.
4. Heard Mr. Fazlur Rehman and Mr. Hasan Inamullah learned counsel for appellant and the State respectively.
5. Before discussing merits of the case it will be proper to examine whether the trial Court was competent to hold trial of the appellant and convict him in view of section 14-A of Arms Ordinance.
Provisions of section 14-A of the Arms Ordinance are reproduced as under:-- "14-A. Certain offences triable by Magistrates.---(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 to in the proviso to the said section 13, be triable by a Magistrate of the First Class.
(2) All cases relating to 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 (XXI of 1976), in which the charge have not been framed shall, on such commencement, stand transferred to the Court of the Magistrate of the First Class having jurisdiction over such cases."
It is clear that all offences punishable under section 13 are triable by Magistrate First Class except for the arms provided in the Schedule. Even cases, which were pending in the Court of Sessions Judge immediately before the commencement of this Ordinance and in which charge was not framed also stood transferred to Magistrate First Class.
' In this regard reliance can be placed on following cases:
(1) Falak Sher v. The State 1987 MLD 1156.
(2) Muhammad Anwar v. The State 1987 PCr.LJ 2049.
(3) Muhammad Tahir v. The State PLD 1989 Pesh. 162, and
(4) Mahmood alias Sultan Mehmood v. The State 1989 MLD 4827.
' In Sher Muhammad alias Shera v. The State 1993 PCr.LJ 474 my learned brother Qaiser Ahmed Hamidi, J. (as he then was) has held that:-- "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 it set aside and the revision is allowed."
In view of the above settled position of law the trial of appellant before the Court of 1st Additional Sessions Judge (South), Karachi is coram non judice and is nullity in the eye of law.
Now question arises whether, the case be remanded for retrial by competent Court or not. In this case a dagger was recovered from the appellant and no length of the dagger allegedly recovered has been mentioned. Section 3(i) (b)(iii) of Arms Ordinance provides that dagger having blade of 4" or more comes under the provisions of the Ordinance. There is nothing on the record to show that alleged dagger recovered from the appellant was having blade of 4" or more. In view of this position no useful purpose will be served by remanding the case to the competent Court for retrial.
Even otherwise the appellant is facing trial since 1986 he has suffered ordeal of prosecution for considerable long period and also remained in jail for quite some time, therefore, retrial of the appellant is not called for.
In view of my above discussion I am of the view that conviction and sentence awarded by the trial Court is illegal and without jurisdiction.
' Consequently, conviction recorded against the appellant is set aside and appeal is allowed. The appellant who is on bail, his bail bond stand discharged