2004 PLP 150 (MLD)

‑‑‑‑S.7(b)(c)‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.14‑A‑‑ Criminal Procedure Code (V of 1898), Ss.190, 435 & 439‑‑‑Jurisdiction of Court to try case‑‑‑Determination of‑‑‑Case registered against accused on 11‑7‑2002 under S.7(b)(c) of Surrender of Illicit Arms Act, 1991 having been entrusted to Additional Sessions Judge for holding trial, accused submitted application before that Court seeking transfer of case against him to Magistrate for holding trial‑‑‑Said application having been dismissed, accused filed revision before High Court‑‑‑First Information Report showed that alleged recovery of illicit weapons .from possession of accused had taken place on 11‑7‑2002 and prosecution was not, possessed of any material whatsoever to even seriously allege that said weapons were also in possession of accused on or before 20‑6‑2001 which was the target date fixed under provisions of Surrender of Illicit Arms Act, 1991‑‑‑Accused, in circumstances, could not be prosecuted under Surrender of Illicit Arms Act, 1991 for possession of illegal weapons allegedly recovered from him on 11‑7‑2002, but could only be tried for relevant offence under West Pakistan Arms Ordinance, 1965 and case under said Ordinance was triable by a Magistrate as provided under S.14‑A of West Pakistan Arms Ordinance, 1965‑‑‑High Court directed Additional Sessions Judge to transfer record of case to Magistrate competent to try alleged offence., against accused. Muhammad Ishfaque alias Pappu v The State PLD 2002 Lah. Syed Mazhar Ali Akbar for Petitioner. Najeeb Faisal Chaudhry, Addl. A.‑G. for Respondents. Date of hearing: 30th June, 2003. The necessary facts giving rise to the present revision petition are that the petitioner is an accused person in case F.I.R. No.306 registered at Police Station Sadar, Gujranwala on 11‑7‑2002 for an offence under section 7(b)/(c) of the Surrender of Illicit Arms Act, 1991. After completion of investigation a challan in this case was directly submitted before the Court of Sessions, Gujranwala by the learned District Attorney, Gujranwala whereafter a reference was made by the learned Additional Sessions Judge Gujranwala seized of the said trial to the learned Sessions Judge, Gujranwala. On 14‑1‑2003 the said reference was answered by the learned Sessions Judge Gujranwala. According to the learned Sessions Judge the challan ought to have been submitted before a learned Magistrate who could have then sent the same to the Court of Session under section 190, Cr.P.C. In these circumstances the challan was returned to the learned District Attorney and the same was subsequently submitted before the learned Area Magistrate. On 22‑1‑2003 the learned Area Magistrate sent the case to the Court of Session, Gujranwala under section 190, Cr.P.C. whereafter the case was entrusted' by the learned Sessions Judge, Gujranwala to the learned Additional Sessions Judge, Gujranwala for holding trial. The petitioner then submitted an application before the learned Additional Sessions Judge, Gujranwala seeking transfer or the above mentioned criminal case to a learned Magistrate for holding a trial but that application of the petitioner was dismissed by the learned Additional Sessions Judge, Gujranwala vide order dated 20‑6‑2003. Hence, the present revision petition before this Court.

2. After hearing the learned counsel for the petitioner, the learned Additional Advocate‑General appearing for the respondents and. after going through the record of this case appended with this petition it has straightaway been observed that according to the F.I.R. the alleged recovery of illicit weapons from the petitioner's possession had taken place on 11‑7‑2002 and admittedly the prosecution is not possessed or any mateital whatsoever to even seriously allege that the said weapons were also in possession of the petitioner on or before 20‑6‑2001 which was the target date fixed under the provisions of the Surrender of Illicit Arms Act, 1991. In these circumstances the petitioners cannot be prosecuted under the said Act for possession of illicit weapons allegedly recovered from him on 11‑7‑2002. A reference in this regard may be made to the case of Muhammad Ishfaque alias Pappu v. The State' (PLD 2002 Lah. 36); A reference made by the learned Additional Session's Judge, Gujranwala in his order dated 20‑6‑2003 to the provisions of the Arms Laws (Amendment) Ordinance, 2001 (Ordinance LXVI of 2001) in this connection has appeared to this Court to be inapt as the said Ordinance had mainly incorporated the new nomenclature of the designated authorities and had not brought about any substantial change in the relevant law and the amendments brought about any substantial change in the relevant law and the amendments brought about by the said Ordinance had no material bearing upon the facts of the present case. It is, thus, quite clear that in the absence of any evidence regarding possession of illicit weapons by the petitioner on or before the target date, i.e. 20‑6‑2001 the petitioner cannot be tried for an offence under section 7 of the Surrender of Illicit Arms Act, 1991 and he can only be tried for the relevant offence under the Pakistan Arms Ordinance, 1965. A case under the Pakistan Arms Ordinance, 1965 is triable by a Magistrate. This revision petition is, therefore, allowed and the learned Additional Sessions Judge, Gujranwala is directed to transfer the record of the above mentioned criminal case to the Court of a learned Magistrate competent to try the alleged offence. H.B.T./A‑941/L Revision petition allowed.