1988 P Cr (PLP)

Muhammad Aslam's case 1988 P Cr. L J 314 rel. M.B. Zaman and Rab Nawaz Khan Niazi for Appellant. Wafadar Khan, A.‑G. for the State. Date of hearing: 16th March, 1988. Muhammad Siddiq, Muhammad Sher, Muhammad Khan and Ghaus Muhammad appellants have filed Criminal Appeals Nos. 734, 673, 674 and 675 of 1986, respectively, against their conviction by Sessions Judge, Sargodha, under section 13 of Vest Pakistan Arms Ordinance XX of 1965, vide separate judgments, dated 1‑11‑1986. All the four matters are being disposed of by this single judgment as they involve common question of law.

2. The facts of the case briefly are that Muhammad Siddiq, Muhammad Sher, Muhammad Khan and Ghaus Muhammad appellants were named as accused for the murder of Amanullah on 30‑4‑1984 committed with fire‑arms. During investigation, Ghulam Qasim (P.W.3), S.H.O. Police Station, Ganjial arrested Muhammad Siddiq, Muhammad Sher and Akbar on 2‑5‑1984 and Ghous Muhammad on 6‑5‑1984. Muhammad Siddiq, while in custody led to the recovery of gun and four live cartridges from a Jasti box lying in his residential house which was secured under memo. Exh.P.B. Muhammad Sher, appellant, while in custody got recovered gun P.1 and two live cartridges P.2/1‑2 from his Baithak lying on a cot, which was secured under memo. Exh.P.B. Muhammad Akbar, appellant, while in custody got recovered gun P.1 and three live cartridges (P.2/1‑2) lying on a cot in his Kotha which was secured under memo. Exh.P.B. On 6‑5‑1984 at 6 p.m. Ghaus Muhammad appellant, while in custody, got recovered 7 mm rifle (P.1) and three live cartridges (P.2/1‑3) and secured under memo. Exh.P.A. All the recovery memos. were attested by Muhammad Khan (P.W.2) besides Inspector Ghulam Qasim (P.W.3). As the appellants failed to produce any licence, therefore, separate cases under Arms Ordinance were registered, investigated and challaned. The case was, however, sent up for trial to learned Sessions Judge with the murder case. The appellants were separately tried under section 13 of the West Pakistan Arms Ordinance XX of 1965 and the learned trial Court having found the charge as established, on the basis of the evidence adduced before it, convicted them to six months' R.I. each.

3. Admittedly the weapons said to have been recovered from the appellants are .12 bore guns/7mm rifle which are not covered under the proviso to section 13 of West Pakistan Arms Ordinance XX of 1965, therefore, the accused/ appellants could be tried by Magistrate lst Class only as enjoined by section 14‑A substituted vide Pakistan Arms (Amendment) Ordinance, 1976 (XXI of 1976) and not be Sessions nudge/ Additional Sessions Judge, Obviously, therefore, the trial of he appellant held by the learned Sessions Judge was without jurisdiction as had been held in Muhammad Aslam's case 1988 P Cr. LJ

314. In this view of the matter the conviction and sentence of the appellants under section 13 of West Pakistan Arms Ordinance XX of 1965 is hereby set aside and they are acquitted. The appellants are in jail since 30‑4‑1984 therefore, I do not feel disposed to order their retrial. They shall be released forthwith if not required to be detained in any other case. M.Y. H./M‑670/L Appeal allowed.