MUHAMMAD TAHIR Versus THE STATE

1. Muhammad Tahir has been convicted under section 13(e) of Arms Ordinance by the learned Sessions Judge, Hyderabad by judgment dated 1‑3‑1988 and sentenced to undergo rigorous imprisonment for two years and also to pay a fine of Rs.1,000 or in default of payment of fine to suffer further R.I. for one year.

2. The appellant being aggrieved has filed the appeal against his conviction and sentence.

3. The facts leading to the filing of the above appeal are that the A.S.I. Ghulam Nabi was investigating Crime No. 201 of 1987 of Market Police Station when he proceeded with his staff to Hirabad and then to Tando Wali Muhammad in search of appellant, required in the said crime. The said A.S.I. received information that appellant was present at Ilyas Hotel in Tando Wali Muhammad where he reached at 3‑30 p.m. A.S.I. Ghulam Nabi saw and caught the appellant and searched his person and secured from fold of his trouser a pistol which was in working condition. The pistol was recovered and the petitioner was arrested under the Mashirnama Exh.

8. Subsequently, the petitioner was taken to the Police Station Market where case against him was registered under the Arms Act.

4. During the trial before Sessions Judge, Hyderabad the prosecution examined complainant Ghulam Nabi Ext. 7 and P.W. Sikandar Ext.

10. The petitioner/appellant in his statement under section 342, Cr. P.C. denied prosecution allegations and stated that neither any pistol was recovered from him nor he had any licence. The appellant had disowned the pistol produced in this case. The appellant in his statement stated that Sikandar has deposed against him because of previous exchange of hot words. The appellant also gave his statement on oath and examined in defence D.W. Manzoor Ahmed Ext. 15.

5. Mr. Qurban Ali Chohan, the learned counsel for the appellant has contended that the trial of appellant by the sessions judge was coram non judice.

6. Mr. Syed Sarfraz Ahmed, learned counsel for the State has fairly conceded that the trial is illegal and without jurisdiction.

7. In order to appreciate the respective contentions of the parties, it is advantageous to reproduce sections 13, 14 and 14‑A of the Arms Ordinance, 1965 which read as under:‑‑

8. "13. Penalty for breach of sections 4. 5, 8 to 11. ‑‑Whoever commits any of the following offences, namely:‑

(a) Sells or keeps, offers or exposes for sale, any arms, ammunition or military stores or undertakes the repairs of any arms in contravention of the provisions of section 4;

(b) fails to give notice of the sale of arms ammunition and of purchasers name and address as required by section 4;

(c) transports any arms: ammunition or military stores in contravention of regulation or prohibition issued under section 5;

(d) goes armed in contravention of the provisions of section 8;

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

(f) fails to deposit arms, ammunition or military stores as required by section 10;

(g) intentionally makes any false entry in a record or account which by a rule made under clause (d) of section 11 he is required to keep; or

(h) intentionally fails to exhibit anything which by a rule made under clause (f) of section 11 he is required to exhibit; shall be punished with imprisonment for a term which may extend to seven years or with fine or with both; or

(i) keeps, carries or displays any arms in contravention of any order issued under section 11‑B;

9. Provided that the punishment for possession of an unlicensed fire‑arm shall not be less than one year;

10. Provided that.the punishment for an offence committed in respect of any‑‑

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

(b) light or heavy automatic weapon, rifle of .303 bore or over, musket of .410 bore or over 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 imprisoned for a term which is not less than three years.

14. Certain breaches of sections 4, 5, 9 and 21 .‑‑Whoever‑‑

(a) omitted.

(b) on any search being made under section 21, conceals or attempts to conceal any arms, ammunition or military stores shall be punished with imprisonment for a term which may extend to seven years or with fine, or with both:

11. Provided that the punishment for an offence committed, in respect of any‑‑

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

(b) light or heavy automatic weapon, rifle .303 bore or over, musket of .410 bore or over 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 imprisoned for a term which is not less than two years.

12. 14‑A. Certain offences triable by Magistrate‑‑‑

(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 arms, ammunition or military stores referred to in the proviso to the said section 13, be triable by a Magistrate of the 1st Class.

(2) All the 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)

13. Ordinance, 1976 (XXI of 1976) in which the charge has not been framed shall, on such commencement stand transferred to the Court of the Magistrate of the First Class having jurisdiction over such cases."

14. Section 14‑A of the Act is significant which clearly lays down that the 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 First Class.

15. In the present case the illicit arm recovered from the appellant is pistol which is not covered by proviso to section 13, therefore, the appellant could be tried by Magistrate of the First Class only and hence the trial of the appellant held by the learned Sessions Judge, Hyderabad, lacked jurisdiction.

16. A trial held in disregard of the provisions of section 14‑A is, therefore, an illegality not curable under the general provisions of section 537, Cr.P.Code. I am, therefore, of the opinion that the trial of the appellant under section 13 of the Ordinance by the learned Sessions Judge, Hyderabad, is coram non judice.

17. For the foregoing reasons I allow the appeal filed by the appellant and set aside the conviction and sentence awarded to him. The appellant will be tried again for the said offence in accordance with law by the First Class Magistrate as may now have jurisdiction in the matter.

18. S.G.D./M‑511/K Appeal allowed.