GHULAM HUSSAIN Versus THE STATE Maj. Waheed-ud-Din Virk and Sardar Mohammad Latif Khosa , Qamar-ud-Din Meo

KHIZAR HAYAT, J.-- Ghulam Hussain, appellant, has filed appeal (Cr.A. No. 410/83) against his conviction by learned Sessions Judge, Mianwali, under section 13 of the West Pakistan Arms Ordinance XX 1965, vide judgment dated 26-6-1983.

2. The facts of the case briefly are that Ghulam Hussain, appellant was named as accused for the murder of Faiz Ahmad on 23-5-1982 committed with fire-arm. During the investigation of the case, ASI Anwar Hussain Shah, Police, Post Wan Bhachran, District Mianwali, arrested Ghulam Hussain and recovered from his possession pistol (Ex. P.1) and two live cartridges Ex. P-2/1-2. The appellant failed to produce any licence, therefore, separate case under Arms Ordinance was registered, investigated and challaned. The case was, however, sent up for trial by the Sessions Court alongwith the murder case. The appellant was separately tried under section 13 of the West Pakistan Arms Ordinance XX of 1965 and the learned trial Court having found the charge as established on the basis of the evidence adduced before it, convicted and sentenced to two years R.I.

3. It is argued that pistol (Ex.Pl) allegedly recovered from the appellant is not covered by. proviso to section 13 of the Ordinance, therefore, according to section 14-A accused /appellant could be tried only by a Magistrate of the First Class, hence his trial held by the learned Sessions Judge is illegal as being without jurisdiction. Consequently, the impugned conviction of the appellant and the sentence awarded to him is liable to be set aside.

4. Proviso to sections 13 and 14-A of Arms Ordinance XX of 1965 are reproduced hereunder for convenience of reference:

13. Whoever commits any of the following offences namely:-

(a) to (d) .

(e) has in his possession or under his control any arms, ammunition or military stores in contravention of the provisions of section 9;

(f) to (i)

Provided that the punishment for an offence committed in respect of any-

(a) cannon, grenade, bomb, rocket; or

(b) light or heavy automatic weapon, rifle of 303 bore or over, musket, .410 bore or pistol or revolver of .441 bore or over, or ammunition which can be fired from such weapon rifle, musket, pistol or revolver. shall be imprisonment for a term which is not less than three years.

14-A. (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 aims, ammunition or military stores referred to in the provision 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 Sessions immediately before the commencement of the Pakistan Arms (Amendment) Ordinance, 1976 (XXI of 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.

A perusal of the above provisions of law would show that offence committed in respect of arms, ammunition and military stores other than those mentioned in proviso to section 13 is exclusively triable by a Magistrate of the First Class. In this case the unlicensed arm recovered from the appellant is pistol and live cartridges, which are not covered by proviso to section 13, therefore, the appellant could be tried by Magistrate of the 1st Class only, hence the trial of the appellant held by the learned Sessions Judge lacked jurisdiction. We are, therefore, left with no option but to hold and declare that the trial of the appellant under section 13 of the West Pakistan Arms Ordinance XX of 1965 by the learned Sessions Judge as coram non judice. Resultantly this appeal is allowed and the conviction and sentence of the appellant under section 13 of the West Pakistan Arms Ordinance XX of 1965 is hereby set aside and he is acquitted. The appellant is in jail since 23-3-1982, therefore, we do not feel disposed to order his retrial. He shall be released forthwith if not wanted in any other case.

M.Y.H./G-81/L Appeal allowed.