FALAK SHER vs The STATE

' LEHRASAP KHAN, J.--The appellant Falak Sher has been convicted by a learned Additional Sessions Judge, Khushab, vide his judgment dated 27-4-1983, under section 13 of the Arms Ordinance (Ordinance XX of 1965) and s?Ntenced to three years' R.I. He has challenged his conviction and sentence through the present appeal.

2. It is alleged that during the investigation of the main murder case under section 302/148/144/109, P.P.C. Arising out of F.I.R. No,11 dated 27-3-1981, the appellant led to the recovery of gun P.1 alongwith two live cartridges P.2/1-2 from his residential Kotha for which he did not possess any licence. The alleged recovery allegedly took place on 17-4-1981.

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 section 14, shall be triable by a Magistrate of the First Class.

Subsection (2) of section 14-A, so added further provides that all cases relating to offences triable by a Magistrate of the first class under subsection (1) and pending in a Court of Session 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 of the 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 1981 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 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 re-trial, but we do not deem this Court to be expedient in view of the fact that the occurrence ,took place as back as 1981 and the appellant has already suffered the 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.