AKBER KHAN vs THE STATE

Appellant Akbar Khan was tried by IInd Additional Sessions Judge (West) Karachi, for the offence under section 13-D of the Arms Ordinance, 1965, who found him guilty and vide judgment dated 29- 12-1988, sentenced him to suffer R.I. For one year and to pay a fine of Rs,1,000 to in default or to suffer R.I. For six months. By this appeal filed under section 410, Cr.P.C. The appellant has challenged his conviction and sentence.

2. The prosecution case in brief is that on 29-6-1986 at about 1-15 p.m., Zahoor Ahmed, S.I.P. Of Jackson P.S., while patrolling received a spy information that the present appellant who was present near Masjid-e-Quba, Bhutta village, Karachi, was in possession of powder of heroin and unlicenced arms and ammunition. Acting on this information the police officer apprehended the appellant in presence of mashirs Karim Bux and Abdul Rashid and recovered one pistol of .32 bore with seven live bullets from his possession. He also seized about 13 grams of powder of heroin from the possession of appellant. Since the appellant had no valid licence for the pistol and live bullets, a case under section 13-D of the Arms Ordinance, 1965, (Crime No,144 of 1986, Jackson P.S.) was registered against him. A separate case under Article 3/4 of the Prohibition (Enforcement of Hadd)

Order, 1979 (Crime No,143 of 1986, Jackson P.S.) was also registered against him. After usual investigation the appellant was challaned in two separate cases.

3. At the trial the prosecution examined Abdul Rashid (P.W.1), Zahoor Ahmed, S.I.P. (P.W.2), and Karim Bux (P.W.3).

4. The appellant met the charge with a denial professing innocence. He did not examine himself on oath. He also led no defence.

5. On the assessm ent of evidence available on record the learned Additional Sessions Judge found the appellant guilty for the said offence and convicted him accordingly.

6. I have heard Mr. Munawar Malik, learned counsel for the appellant and Mr. Jalal-ud-Din Baluch, learned counsel for the State.

7.

7. I need not enter into the merits of the case as the trial of the appellant by Additional Sessions Judge for the offence under section 13-D of the Arms Ordinance, 1965, was coram non judice and the conviction recorded against him is a nullity in the eye of law.

8. Section 14-A of the Arms Ordinance, 1965, which was added in the year 1976, has ousted the jurisdiction of Sessions Judge, Additional Sessions and Assistant Sessions Judge, to try such cases in the following words:- "(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 in the proviso to the said section 13 shall 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 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."

9. The following cases lend support to the view expressed by me in para 7 ante:-- "(i) Falak Sher v. The State 1987 MLD 1156,

(ii) Ghulam Farid v. The State 1987 MLD 1247,

(iii) Tariq Khan v. The State 1987 MLD 1735,

(iv) Muhammad Salim v. The State 1987 MLD 2023,

(v) Muhammad Anwar v. The State 1987 P Cr. L J 2049,

(vi) Muhammad Tahir v. The State 1988 MLD 143,

(vii) Muhammad Siddiq v. The State 1988 P Cr. L J 1855,

(viii) Allah Bakhsh v. The State 1988 P Cr. L J 2133, Muhammad Tahir v. The State PLD 1989 Peshawar 162, Mahmood alias Sultan Mehmood v. The State 1989 MLD 4827, Ataullah Khan v. The State 1991 P Cr. L J Note 6 at page 4, Sudheer v. The State 1991 P Cr. L J 736.

10. Out of the above citations the cases at serial No,(i) to (v) and (ix) to (xi) are D.B. Judgments. In all these cases section 14-A of the Arms Ordinance, 1965, which was inserted by the Pakistan Arms (Amendment) Ordinance, 1976, was examined and it was held that the offences falling under section 13 or section 14 shall, unless they have been committed in respect of any of the arms, ammunition or military stores referred to in the proviso to section 13 shall be triable exclusively by a Magistrate of the First Class. In the case of Muhammad Anwar v. The State, reported in 1987 P Cr. L J 2049, a Division Bench of the Lahore High Court made the following observations:-- ' Before parting with this judgment we are tempted to point out that where an accused is alleged to have used an arms (not covered by proviso to section 13 of the Arms Ordinance, 1965) in the commission of an offence triable by Court of Session, his trial under Arms Ordinance must be held by Session Judge/Additional Sessions Judge trying the main offence, to avoid possibility of conflicting judgments by the two different Courts on the point of possession of arms by the accused i.e,, one given by the Sessions Judge/Additional Sessions Judge trying the main offence and the other by Magistrate 1st Class trying the offence under Arms Ordinance, 1965. To avoid cropping up of such a situation, the Government concerned may take steps for suitably amending the relevant provision of law."

11. As the First Class Magistrate had the exclusive jurisdiction to try the case against the appellant under section 13-D of the Arms Ordinance, 1965, the cognizance taken by learned IInd Additional Sessions Judge (West) Karachi against him was illegal and the conviction awarded to him is without jurisdiction. Consequently the conviction recorded against the appellant is set aside and the appeal is allowed.

12. The appellant has suffered the ordeal of the prosecution for a considerable long time. He has also remained in custody for some time during this period. In such a situation the re-trial of the appellant is not called for. The appellant who is presently on bail is discharged from his bail bond.