1992 P Cr (PLP)

9. The following cases lend support to the view expressed by me in para. 7 ante:- (i) Falak Sher v. The State 1987 M L D 1156, (ii) Ghulam Farid v. The State 1987 M L D 1247, (iii) Tariq Khan v. The State 1987 M L D 1735, (iv) Muhammad Salim v. The State 1987 M L D 2023, (v) Muhammad Anwar v. The State 1987 P Cr. L J 2049, (vi) Muhammad Tahir v. The State 1988 M L D 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, (ix) Muhammad Tahir v. The State P L D 1989 Pesh.162, (x) Mahmood alias Sultan Mehmood v. The State 1989 M L D 4827, (xi) Asal Khan v. The State 1990 P Cr. L J 449, (xii) Ataullah Khan v. The State 1991 P Cr. L J Note 6 at page 4, (xiii) Sudheer v. The State 1991 P Cr. L J 736, (xiv) Akbar Khan v. The State 1991 M L D 1829.

10. Out of the above citations the cases at serial Nos.(i) to (v) and (ix) to (xii) 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 Sessions 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. In the case of Asal Khan v. The State reported in 1990 P Cr. L J 449 (referred to at Serial No.xi), the provisions of sections 235 and 239, Cr.P.C. were examined in relation to section 14-A of the Arms Ordinance, 1965, and it was observed as follows:-- "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."

12. As the First Class Magistrate had the exclusive jurisdiction to try the case against the appellant under section 13-E 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.

13. The appellant, who has remained in custody for a long time, has already suffered a punishment which in ordinary course could have been awarded to him. In such a situation the retrial of the appellant is not called for. The appellant who is presently in custody be released forthwith, if not required in any other case. S.A./M-1516/K Appeal accepted.