1996 P Cr (PLP)

I have heard Mr. Ahmad Ali Shaikh learned counsel for the appellant and Mr. Abdul Fatah Mughal, Advocate for Additional Advocate-General. 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), Arms A Ordinance, 1965 was coram non judice and the conviction recorded against him k a nullity m the eye of law, Section 14-A of the Arms Ordinance, 1965, which was added in the year 1976, has ousted the jurisdiction of Sessions Judge, Additional Sessions Judge 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 be triable by a Magistrate of the First Class. (2) All cases relating to offence 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." (i) Falak Sher v. The State 1987 MLD 1156, (ii) Muhammad Anwar v. The State 1987 PCr.LJ 2049, (iii) Muhammad Tahir v. The State 1988 MLD 143, (iv) Muhammad Tahir v. The State PLD 1989 Pesh. 162, (v) Mahmood alias Sultan Mahmood v. The State 1989 MLD 4827, (vi) Sudheer v. The State 1991 PCr.LJ 736, (vii) Akbar Khan v. The State 1991 MLD 1829 and (viii) Mir Azam Khan v. The State PLD 1995 Kar.

504. In the case of Asal Khan v. The State reported in 1990 PCr.LJ 449, the provisions of sections 235 and 239, Cr.P.C. were considered in relation to section 14-A of the Arms Ordinance, 1965, and it was held:.- "I am afraid this is not the correct conclusion and I would respectfully disagree with my learned brother Muhammad Ishaq Khan, J. The reason for my conclusion is that since a forum for the trial of such an offence has been mentioned in the Ordinance in section 14-A, the provisions of subsection (1) of section 29 of the Code are attracted and without regard to the provisions of sections 235 and 239 of the Code this offence was to be tried by a Magistrate of the First Classing having jurisdiction in the area. It is immaterial that no corresponding amendment was made in the Second Schedule to the Code in order to bring it in conformity with the provisions of section 14-A of the Ordinance, for the simple reason that the provisions of subsection (12) of section 29 of the Code are very clear." 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 the learned 1st Additional Sessions Judge, Jacobabad 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. The appellant has almost completed the sentence awarded to him. In such a situation, his retrial is not called for. The appellant who is in custody be released forthwith, if not required in any other case. Appeal allowed. N.H.Q./J-194/K Appeal allowed.