ASAL KHAN Versus THE STATE

During the investigation of case State v. Asal Khan under section 302, P.P.C. recorded in Police Station Nowshera Cantt. on 27‑5‑1986 under F.I.R. No. 280, Niaz Ali, Assistant Sub‑Inspector of Police recovered one double barrel shotgun of .12 bore from the house of Asal Khan appellant herein, alleged to be the weapon of offence of the aforesaid report. The said A.S.I. sent Murasila to the police station where F.I.R. No. 281 was recorded on 28‑5‑1986 discussing appellant of having committed an offence under section 13 of the Arms Ordinance, 1965 (hereinafter referred to as the Ordinance) as being in possession of an unlicensed weapon. After investigation the appellant was sent up for trial before the learned Additional Sessions Judge, Nowshera who was already seized of the case under section 302, P.P.C. against the appellant as disclosed in the aforesaid F.I.R. No. 280. The appellant pleaded not guilty and claimed trial. The learned Additional Sessions Judge tried both the cases. After recording evidence and upon conclusion of the trial of the case in hand the learned Additional Sessions Judge convicted the appellant under section 13 of the Ordinance by judgment, dated 3‑4‑1988 and sentenced him to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,000 or in default to suffer simple imprisonment for one month. The appellant submitted appeal in hand challenging his conviction and sentence under section 13 of the Ordinance alongwith the appeal against his conviction and sentence under section 302, P.P.C. Both the appeals were heard by a Division Bench of this Court consisting of my learned brothers Muhammad Ishaq Khan and Muhammad Azam Khan, JJ. However, difference of opinion arose between my learned brothers. Mr. Muhammad Azam Khan, J. is of the opinion that the trial of the appellant for the offence under section 13 of the Ordinance by the learned Additional Sessions Judge was without jurisdiction in view of the provisions contained in section 14‑A of the‑Ordinance and he by setting aside the judgment directed retrial of the case by the Court of Magistrate of 1st Class having jurisdiction over the area whereas Mr. Muhammad Ishaq Khan, J. recorded acquittal of the appellant. Due to difference of opinion between both the learned brothers the case has been marked to me.

2. I have heard learned counsel for the parties at length and had also the benefit of going through the judgments of my learned brothers.

3. No doubt the weapon recovered from the appellant was a double‑barrel shotgun of .12 bore and it came within the category of non‑prohibited bore weapon and the appellant could also not produce a licence for the same, he was triable for an offence under section 13 of the Ordinance. However, an amendment was made in the Ordinance by Pakistan Arms (Amendment) Act, L of 1976 whereby section 14‑A was added to the Ordinance. This newly added section provides for a forum for the trial of offences under sections 13 and 14 of the Ordinance committed in respect of arms and ammunition other than those mentioned in the proviso to section 13. For the sake of convenience and better understanding of the matter it is advisable to reproduce the provisions of section 14‑A as follows:‑

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 ld 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 charges 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.

4. It shall be seen from the aforesaid provisions of section 14‑A of the Ordinance that if an offence is committed in respect of arms and ammunition of non‑prohibited bore, then the forum for the trial thereof is the Court of the Magistrate of the First Class. This point had already arisen in a few cases. In the case of Ahmad Raza v. The State 1979 P Cr. L J 525 heard by my learned brother Rustam S. Sidhwa, J. of the Lahore High Court, the same point was agitated and my learned brother arrived at the conclusion that since the offence was triable by Magistrate of the First Class in accordance with the provisions of section 14‑A of the Ordinance the Sessions Judge had no jurisdiction to try the case. My learned brother set aside the conviction and sentence of the convict leaving it open to the State to again try the appellant in a Court of competent jurisdiction if so advised.

5. My learned brother Muhammad Azam Khan, J. has also referred to three cases of this Court wherein the same point had arisen. In Criminal Appeal No. 62 of 1987 Shamsher Khan v. The State, the appellant Shamsher Khan was tried and convicted for an offence under section 13 of the Ordinance as a shotgun of .12 bore without a licence was seized from the possession of the appellant and he was tried by the learned Additional Sessions Judge alongwith the trial of the accused under section 302, P.P.C. This appeal wag heard by a Division Bench consisting of my learned brothers Fazal Elahi Khan and Muhammad Azam Khan, JJ. The conviction and sentence of the appellant was set aside and his retrial by a Court of Magistrate First Class having jurisdiction over the area was ordered. In Criminal Appeal No. 78 of 1987, Taj Muhammad v. The State, the same point had arisen and the same judgment was made by a Division Bench of this Court consisting of my learned brothers Inayat Elahi Khan and Muhammad Azam Khan, JJ. There is also a reported case of this Court, Muhammad Tahir v. The State P L D 1989 Pesh.

162. The appellant was accused of two offences, murder and being in possession of a weapon of non‑prohibited bore. Both the offences were tried separately by the learned Additional Sessions Judge. The appeal in both the cases was heard by a Division Bench of this Court consisting of my learned brother Inayat Elahi Khan and Abdur Rehman Khan, JJ. and they also held that in view of the provisions contained in section 14‑A of the Ordinance the offence with regard to the weapon not licensed in the name of the appellant could not be tried by the learned Additional Sessions Judge and it had to be tried by a Magistrate of the First Class having jurisdiction in the area.

6. After a careful perusal of the provisions of section 14‑A of the Ordinance and the aforesaid judgments I am of the opinion that the offence committed by the appellant of being in possession of a double‑barrel shotgun of .12 bore without a licence was not covered by the proviso to section 13 of the Ordinance and it had to be tried by the Court of the Magistrate of the 1st Class although the said offence had been committed in conjunction with a more serious offence of murder etc.

7. My learned brother Muhammad Ishaq Khan. J. has referred to the provisions of section 235 of the Criminal Procedure Code (hereinafter referred to as the Code) in order to show that the facts of both the offences under section 13 of the Ordinance and section 302, P.P.C. were connected together as to form the same transaction, as such both were triable by the higher Court having jurisdiction to try the offence committed under section 302, P.P.C. My learned brother came to the conclusion that although under the provisions of section 14‑A of the Ordinance the offence disclosed in the appeal in hand was triable by a Magistrate of the First Class but as it was a corollary to the main offence of murder under section 302, P.P.C. as such in accordance with the provisions of section 235 of the Code both the offences were triable by the higher forum of the Sessions Court. In support of his conclusion my learned brother also referred to the case of Sadiq and others v. Crown P L D 1951 FC 114 wherein while giving a finding under section 239 of the Code it was held that the offence of having been in possession of the spear was so connected with the offences committed by the petitioners as to form part of the same transaction, and the accused could have, therefore, been legally charged and tried at one trial for all the offences committed by them during the same transaction.

However, it shall be seen that the judgment of the Federal Court was made in the year 1951 when section 14‑A of the Ordinance was not in existence.

9. It has also to be noted that the Ordinance is a special law as it provides for offences with regard to possession and manufacture of arms and ammunition without a licence. These offences are not covered by the Pakistan Penal Code. Under section 28 of the Code every offence under the Pakistan Penal Code can be tried by the High Court or by the Court of Session or by any other Court by which such offence is shown in the eighth column of the Second Schedule to the Code to be triable. However, under subsection (1) of section 29 of the Code any offence under any other law shall, when any Court is mentioned in this behalf in such law, be tried by such Court.

10. It shall thus be seen that both the provisions of section 235 read with section 239 of the Code were attracted to the case in hand because the appellant was alleged to have committed the offence of murder under section 302, P.P.C. with .12 bore shotgun allegedly recovered from his possession and for which he could not produce any licence and was triable under section 13 of the Ordinance, yet in view of the provisions contained in section 14‑A thereof read with the provisions of subsection (1) of section 29 of the Code the offence which was the subject‑matter of appeal in hand was not triable by the Additional Sessions Judge but was triable by a Court of Magistrate 1st Class having jurisdiction in the area.

11. I will, therefore, most respectfully agree with the conclusions drawn by my learned brother Muhammad Azam Khan, J. However, my learned brother Muhammad Ishaq Khan, J. was of the further opinion that in their judgment in appeal against the convicton and sentence of the appellant for the offence under section 302, P.P.C. they had come to the conclusion that the prosecution had failed to prove the factum of possesison of the appellant over the alleged weapon of offence and if the case with regard to the offence under section 13 of the Ordinance was tried by a Magistrate and not by the Additional Sessions Judge who tried the main offence of murder there was apprehension of conflict of judgments and this reason also prevailed with my learned brother in coming to the conclusion that the provisions of section 14‑A of the Ordinance were not applicable to the case in hand and the appellant was correctly charged for the offence committed under the Ordinance by the learned Additional Sessions Judge I am afraid this is not the correct conclusion and I would respectfully disagree with my learned brother Muhammad Ishaq Khan, J. The reason for my conclusion is that since a forum for the trial of such an offence has been mentioned in the Ordinance in section 14‑A, the provisions of subsection (1) of section 29 of the Code are attracted and without regard to the provisions of sections 235 and 239 of the Code this offence was to be tried by a Magistrate of the First Class having jurisdiction in the area. It is immaterial that no corresponding amendment was made in the Second Schedule to the Code in order to bring it in conformity with the provisions of section 14‑A of the Ordinance, for the simple reason that the provisions of subsection (1) of section 29 of the Code are very clear.

12. For the aforesaid reasons I will agree with the conclusion drawn by my learned brother Muhammad Azam Khan, J. I will accept this appeal, set aside the conviction and sentence of the appellant recorded by the learned Additional Sessions Judge and would order his retrial by the Court of the Magistrate First Class having jurisdiction in the area if so thought fit by the State.

N.H.Q./922/P Appeal accepted.