1. ' This is a reference forwarded by Mr. Abdul Ghafoor Magsi the then District and Sessions Judge, Ghotki to the Additional Registrar of this Court. The learned Judge has requested that this reference be placed before a Judge of this Court for clarification as to whether the cases under section 13- A(2)(b), Arms Ordinance may be tried by the Court of Session or the Magistrate First Class.
2. ' The circumstances under which the learned Sessions Judged, Ghotki appears to have been forced to make this reference as stated by him in his reference are that by an amendment under Arms Ordinance No,XXXVIII of 1996 Pakistan Arms Ordinance (Amendment) Ordinance, 1996, dated March 7, 1997 a new section 13-A had been inserted in West Pakistan Arms Ordinance, 1965 whereby the sentence has been enhanced to imprisonment foi life or imprisonment for a term not less than seven years. The learned Sessions Judge, Ghotki further noted that since First Class Magistrate was not empowered to award 7 years' imprisonment, such cases were being sent to the Court of Session for trial.
3. ' The next predicament of the learned Sessions Judge, Ghotki appeared to be section 14-A of the Arms Ordinance under which the jurisdiction for trial of the case under the Arms Ordinance had been conferred on the Magistrates of the First Class and according to the learned Judge this was anomalous position and, therefore, he sought clarification from this Court.
4. In order to give suitable reply to the learned Sessions Judge, Ghotki on his reference I had sought the services of Mr. Habibullah Shaikh as a helper of the Court and also had issued notice to the learned Additional Advocate-General to address the Court on the above reference. After hearing both the learned counsel and going through the contents of sections 432 and 433, Cr.P.C. Under which the references are to be made by the subordinate Courts to the High Court I find that these sections have been omitted. The result will be that the subordinate Courts could no more seek the clarifications through references on such points under sections 432 and 433, Cr.P.C. Consequently, this reference made by the learned Sessions Judge is not supported by any provision of law and need not have been sent to this Court for clarification. In support of such finding I reproduce the following portion of the order passed by learned Judges of .This Court Mr. Justice Syed Abdur Rehman and Mr. Justice Allah Dino G. Memon in Criminal Reference No,8 of 1990, decided on 5-8- 1991: "(3) We are absolutely clear in our mind that under the law the First Additional District and Sessions Judge or for that matter any Judge, subordinate to this Court, could not make any reference to this Court for soliciting instructions as to what he should do in such a situation. Hence we do not consider it proper to give any instructions to the learned First Additional District and Sessions Judge in this regard."
5. ' The above order of the learned two Judges was based on the case of Emperor v. Madho Singh AIR 1925 All. 318 and AIR 1949 Mad.
11. It had also been held in this order that in case any such difficulty arose before a Judge it was his duty to apply his own mind to the law and the facts of the case and pass an appropriate judicious order. Such order when challenged before the superior Courts, could be either upheld or set aside and in either case Judges would get guidance. On such grounds the reference was filed. Mr. Justice Qaiser Ahmed Hamidi while sitting as Single Judge had taken similar view in Criminal Appeal No,2 of 1989.
6. The learned Judge who had made the reference was perhaps labouring under the . Notion that such opinion of the learned two Judges Syed Abdul Rehman and Allah Dino G. Memon as well as Mr. Justice Qaiser Ahmed Hamidi was not sound in his view, and therefore, he had made this reference with the hope that the D.B. Of this Court or a larger Bench will sit to revise such opinion. I do not find any wisdom in such view of the learned Sessions Judge and, therefore, I take the same view that the reference should not have been made at all. I, therefore, order that the reference be filed and it stands disposed of.