ALLAH BAKHSH Versus THE STATE

Allah Bakhsh (appellant) has filed this appeal against his conviction under section 13 of the Pakistan Arms Ordinance, 1965, by learned Additional Sessions Judge, Multan who sentenced him to three years' R.I. plus fine, vide judgment dated 15‑6‑1987.

2. According to prosecution, the appellant was arrested in a murder case. On 23‑5‑1987, he was in custody with Saif Ullah Sub -Inspector (PW 3), when he led to the recovery of hatchet (P1) from his residential Kotha which was secured under memo. Ex.PB, attested by Ghulam Haider (PW 2) and Jindwada PW (not produced). The Sub‑Inspector drew up complaint Ex.PA and got registered case at Police Station Shujabad under the Arms Ordinance. He challaned the appellant to Court obviously for possessing the hatchet without licence.

3. The appellant was tried by learned Additional Sessions Judge, Multan, on the charge under section 13 of the Pakistan Arms Ordinance, 1965 (hereinafter called the Ordinance).

4. The prosecution examined Muhammad Iqbal, Muharrir Head Constable (PW1), Ghulam Haider (PW 2) and Saif Ullah S.I. (PW .3) in support of its case.

5. The appellant, when examined under section 342, Cr.P.C denied the allegation and did not produce any evidence in his defence.

6. I have heard learned counsel for the appellant as well as for the State and also perused the record. The hatchet (Pl) allegedly recovered from the appellant is not covered by definition of Arms given in section 3 (b) of the Ordinance. Even if it is assumed that the hatchet is an 'Arm' in the meaning of the Ordinance I would say the conviction of the appellant cannot be sustained as the trial by the Sessions Judge is without jurisdiction as according to section 14‑A the offence is triable by Magistrate Ist Class and not by Sessions Judge. The relevant provision of law is hereby reproduced fort reference.

14‑A (i) 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.

(ii) 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."

In view of the above the trial of the appellant held by the learned Sessions Judge is clearly without jurisdiction. Retrial of the appellant is, however, not ordered. Consequently, the appeal is allowed, the conviction of the appellant is hereby set aside and he is acquitted. He be released forthwith if not required to be detained in any other case.

S. A./A‑302/ L. Appeal accepted.