MUHAMMAD ASLAM Versus THE STATE Sardar M. Latif Khan Khosa , Malik Rehmat Khan

KHIZAR HAYAT, J .‑‑ Muhammad Aslam aged 25 years and his uncle Manzur Ahmad aged 35 years have filed Criminal Appeal No. 79 of 1983 and No. 78 of 1983 respectively, against their conviction by learned Additional Sessions Judge, Faisalabad, under section 13 of the West Pakistan Arms Ordinance XX of 1965, vide judgment, dated 11‑1‑1983. Both the matters are being disposed of by this single judgment as they arise from the same order.

2. The facts of the case briefly are that Muhammad Aslam and Manzur Ahmad appellants were named as accused for the murder of Razzaq on 14‑12‑1980 committed with fire‑arm and Chhura. During the `investigation, S.I. Ghulam Abbas, S.H.O. Police Station Satiana, District Faisalabad, arrested both the appellants and recovered from their possession pistol (P.1) and Chhura (P.1) having blade of 7". The appellants failed to produce any licence, therefore, separate cases under Arms Ordinance were registered, investigated and challaned. The case was, however, sent up for trial by the learned Additional Sessions Judge with the murder case. The appellants were 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 them to one year's R.I. each.

3. It is argued that Pistol (P.1) and Chhura (P.1) 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 learned Additional 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 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, provision of section

(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 or .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 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 arms recovered from the appellants are pistol and Chhura which are not covered by proviso to section 13, therefore, the appellants could be tried by Magistrate of the 1st Class only, hence the trial of the appellants held by the 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 is 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 14‑12‑1980, therefore, we do not feel disposed to order their retrial. They shall be released forthwith, if not wanted in any other case.

M. Y. H./M‑453/L Appeal allowed.