1987 PLP 2023 (MLD)

LEHRASAP KHAN, J.--Muhammad Saleem appellant has been convicted b~ a learned Additional Sessions Judge, Mianwali, vide his judgment dated 17-12-1983, under section 13 of the Arms Ordinance (Ordinance XX of 1965) and sentenced to one year's R.I. He has challenged his conviction and sentence through the present appeal.

2. It is alleged that on 6-1-1982, at 8-00 P.M. the appellant attacked and injured Muhammad Ayub, the deceased in the main murder case, with chhuri P.1 near the bungalow of Col. Ataullah Khan Sumbal. at a distance of about half a mile from Chowk Railway Station Mianwali. After the commission of offence, the appellant threw the chhuri P.1 on the spot and ran away. The chhuri was allegedly produced before Muhammad Naeem ASI by Muhammad Ayub deceased himself, on 6-1-1982.

3. It is noteworthy that Arms Ordinance XX of 1965, h9s 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 Sessions 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 one.

4. As already stated, in the present case the offence allegedly took place in January 1983 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 of re-trial, but we do not deem this course to be expedient in view of the fact that the occurrence took place as back as January, 1983 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. . S.A. /M-305/L Appeal accepted.