ATTA MDHAMMAD Versus THE STATE

RIAZ AHMAD, J. ‑‑The appellant Atta Muhammad has been convicted by the learned Additional Sessions Judge, Mianwali, vide his judgment dated 10‑4‑1982 under section 13 of Arms Ordinance XX of 1965) and sentenced to one year R.I. He has challenged his conviction and sentence through the present appeal.

2. It is alleged that during the investigation of the murder case under section 302/34, P.P.C. arising out of F.I.R. No.307 dated 8‑8‑1980, the appellant led to the recovery of a .12 bore pistol from his house for which he did not possess any licence. The said recovery allegedly took place on 23‑8‑1980.

3. It is noteworthy that Arms Ordinance (XX of 1965) has been amended by the Pakistan Arms (Amendment Ordinance, 1976) (Ordinance (XXI of 1976). Through the amendment so brought about in the Arms Ordinance (XX of 1965), section 14‑A has been added which provides that notwithstanding anything contained in the Code of Criminal Procedure, 1898, (Act V of 1898) an offence punishable under section 13 or 14 shall be triable by a Magistrate of First Class. Subsection (2) of section 14‑A, so added further provides that all cases relating to offences triable by a Magistrate of First Class under subsection (1) and pending in a Court of Sessions immediately before the commencement of the Pakistan Arms (Amendment) Ordinance 1976, in which the charge had not been framed shall on such commencement, stand transferred to the Court of the Magistrate First Class having jurisdiction over such cases. It is noteworthy that the Pakistan Arms (Amendment) Ordinance, 1976 (Ordinance XXI of 1976) was promulgated on 25th May, 1976 and it came into force at once.

4. As already stated in the present case, the offence allegedly took place in 1980 i.e. long after the coming into force of the amendment brought about by the Pakistan Arms (Amendment) Ordinance, 1976. The offence, was, therefore, exclusively triable by the Magistrate of the First Class, having jurisdiction in the area. The learned Additional Sessions Judge did not have the jurisdiction in the matter. Trial by him is, therefore, coram non judice and the conviction and sentence passed by him is thus a nullity in the eye of law.

5. Ordinarily, we would have remanded this case to the Court of the learned Magistrate First Class having jurisdiction in the area for retrial but we do not deem this course to be expedient in view of the fact that the occurrence took place as back as 1980 and the appellant has already suffered agony of protracted murder trial as also the trial in this case.

6. For the foregoing reasons, we accept this appeal, and set aside the conviction and sentence of the appellant.

S-.G.D./A-261/L Appeal accepted.