MUHAMMAD ANWAR Versus STATE

KHIZER HAYAT, J. ‑‑Muhammad Anwar, Muhammad Tufail, Muhammad Amin, Qasirn Ali and Muhammad Aslam have filed five separate appeals (Crl. Appl. No. 22; 23, 24, 25 and 26 of 1985) respectively, against their conviction by learned Addl. Sessions Judge, Kasur, under section 13 of the West Pakistan Arms Ordinance XX of 1965, vide separate judgments dated 14th January, 1985. Since a common question of law is involved in these appeals, therefore, we are disposing them of by this single judgment.

2. The relevant facts for the decision of these appeals briefly are that these appellants were named as accused for the murder of Muhammad Sharif Tahir on 28th June; 1981 committed with fire‑arm and Khanjars. During the investigation of the case, S.HO. Police Station Pattoki, District Kasur arrested Muhammad Anwar, Amin and Aslam and each one of them while being under police custody led to the recovery of a blood stained Khanjar each on 21‑7‑1981 from his residential house while Qasim Ali got recovered blood‑stained Khan jar on 21‑10‑1981 and a .12 bore gun with two live cartridges was recovered from the person of Muhammad Tufail on 23‑1‑1982. Separate cases under Arms Ordinance were registered, investigated and challaned. The cases were, however, sent up for trial by the Sessions Court alongwith the murder case. Each 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 each one of them accordingly.

3. It is argued that Khanjar as well as .12 bore gun allegedly recovered from the appellants are not covered by proviso to section 13 of the Ordinance, therefore, according to section 14‑A accused/appellants could be tried only by a Magistrate of the First Class, hence their trial held by the Add]. Sessions Judge is illegal as being without jurisdiction. Consequently, the impugned conviction of the appellants and the sentence awarded to them is liable to be set aside.

4. Proviso to sections 13 and 14‑A of Arms Ordinance, 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 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 sub‑section (1) and pending in 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 provision 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 illicit arms recovered from the appellants are Khanjars and .12 gun and live cartridges, which are not covered by proviso to section 13, therefore, the appellants, could be tried by Magistrate of the First Class only hence the trial of the appellants held by learned Additional Sessions Judge lacked jurisdiction. We are, therefore, left with no option but to hold and declare that the trial of the appellants under section 13 of the West Pakistan Arms Ordinance XX of 1965 by the learned Additional Sessions Judge as coram non judice. Resultantly these appeals are allowed and the conviction and sentence of the appellants under section 13 of the West Pakistan Arms Ordinance XX of 1965 are hereby set aside and they are acquitted. The appellants are in jail since 14‑1‑1985, therefore, we do not feel disposed to order their retrial. They shall be released forthwith if not required in any other case.

2. Before parting with the judgment we are tempted to point out that where an accused is alleged to have used an arm (not covered by proviso to section 13 of the Arms Ordinance, 1965) in the commission of an offence triable by Court of Sessions, his trial under Arms Ordinance must be held by the Sessions Judge/Additional Sessions Judge trying the main offence, to avoid possibility of conflicting judgments by the two different Courts on the point of possession of arm by the accused, i.e. one given by the Sessions Judge/Additional Sessions Judge trying the main case and the other by Magistrate 1st Class trying the offence under Arms Ordinance, 1965. To avoid cropping up of such a situation, the Government concerned may take steps for suitably amending the relevant provision of law.

M.Y.H./M‑294/L Appeal accepted.