QURBAN SHAR vs THE STATE
This appeal challenges a conviction under Section 13(d) of the Pakistan Arms Ordinance, 1965, regarding the possession of a Kalashnikov. The appellant was initially tried by a Magistrate who lacked jurisdiction, as offenses involving Kalashnikovs fall under the proviso to Section 13, requiring trial by a Court of Session. The case was subsequently transferred to an Additional Sessions Judge, who failed to conduct a de novo trial, instead relying on the evidence and proceedings recorded by the Magistrate. The High Court held that the Magistrate's proceedings were coram non judice and that the Additional Sessions Judge committed a material illegality by failing to try the case afresh. However, noting that the appellant had already served approximately two years in custody—a significant portion of the three-year sentence—the Court determined that remanding the case for a fresh trial would be an abuse of the process of law. Consequently, the Court allowed the appeal and ordered the appellant's release, effectively setting aside the conviction without ordering a retrial due to the time already served.
- Does a Magistrate have jurisdiction to try an offense involving a Kalashnikov under the Pakistan Arms Ordinance 1965?
- Is a trial conducted by a court lacking jurisdiction considered coram non judice?
- When a case is transferred from a court lacking jurisdiction to a competent court, is the competent court required to conduct a de novo trial?
- Can an appellate court decline to remand a case for retrial if the accused has already served a substantial portion of the sentence?
- Section 13(d), Pakistan Arms Ordinance 1965
- Section 13, Pakistan Arms Ordinance 1965
- Section 14, Pakistan Arms Ordinance 1965
- Section 14-A, Pakistan Arms Ordinance 1965
- Section 342, Code of Criminal Procedure 1898
1. ' RAHMAT HUSSAIN JAFFERI, J.---The brief facts giving rise to the present appeal are that on 4-6- 2002 at 10-35 p.m. The police apprehended the appellant from a bridge on the link road leading towards Sanko. From his possession the police secure Klashnikov and Magazine containing 35 bullets, therefore, he was challaned for offence punishable under section 13(d) of the Pakistan Arms Ordinance, 1965.
2. ' On 16-11-2002 the learned Magistrate framed the charge for the said offence. The prosecution examined two witnesses. Thereafter the learned Magistrate recorded the statement of appellant under section 342, Cr.P.C. On 26-2-2004. The learned Magistrate sent up the case to the Court of Session on 25-5-2004 as the offence was triable by the Court of Session vide District Court Circular No,EB-2344 dated 30-4-2004. The R.&Ps. Were received by the Additional' Sessions Judge on 27-5- 2004. He did not proceed with the case afresh but after hearing the arguments, relying upon the evidence recorded by the Magistrate he convicted the appellants under section 13(d) of Pakistan Arms Ordinance, 1965 under the impugned judgment dated 3-8-2004.
3. ' The learned A.A.-G. Has not supported the impugned judgment and requested for the remand of the case on the ground that the learned Additional Sessions Judge relied upon the charge, evidence and statement of appellant, which were recorded by the Court of Magistrate, having no jurisdiction, without trying the case afresh.
4. ' Under section 14-A of the Pakistan Arms Ordinance, the Magistrate had jurisdiction to try the offences punishable under section 13 or section 14 except the offences of any Arms and Ammunition referred to in the provisos to section 13. The Klashnikov is covered by the proviso to section 13 of the Pakistan Arms Ordinance, therefore the learned Magistrate had no jurisdiction to try the case; hence the trial and proceedings conducted by the Magistrate were corum no judice.
5. ' After receipt of the case the learned Additional Sessions Judge should have tried the case de novo from the stage of charge but the learned Additional Sessions Judge did not do so but committed a material illegality in relying upon the charge, evidence and statement of the appellant recorded by the Magistrate, therefore the proceedings have been vitiated. Hence the case is required to be remanded to the Court of IVth Additional Sessions Judge, Mirpur Mathelo for retrial.
6. ' The record shows that the appellant was arrested on 4-6-2002. He remained in jail up to 14-6- 2003. After that he was granted bail as such he remained in custody for a period of about 12 months. Thereafter the appellant jumped the bail. Subsequently his father appeared before the Court on 16-12-2003 by which he informed the Court that the appellant was confined in jail in some other case. Thereafter he remained in Jail till this date. If that period is calculated then he remained in jail for a period of about 8 months till the announcement of judgment. After the judgment he has remained in custody till this date and if that period is calculated then he has remained in jail for a period of about 2 years. If the above period is calculated then it appears that he has already served out the sentence awarded by the trial Court and that sentence is 3 years. If the case is remanded to the trial Court for fresh trial in accordance with law then it is not known when the case would be completed. As such it will be an abuse of the process of law if such procedure is adopted.
7. ' In these circumstances, I do not find it feasible to remand the case but to release the appellant.
8. The appeal is allowed in the above terms.