1991 P Cr (PLP)

This appeal is directed against the judgment dated 31-5-1984 passed by the learned Additional Sessions Judge, Kasur whereby the appellant was convicted under section 13 of the Arms Ordinance (Ordinance XX of 1965) and was sentenced to three years' R.I. with a fine of Rs.1,000,or in default in payment of fine to further undergo R.I. for three months. The prosecution case in brief was that during the investigation of murder case registered vide F.I.R. No.22 of 1981 at Police Station Bhai Pheru, the appellant led to the recovery of a .7 mm rifle and three live cartridges which resulted in the registration of F.I.R. No.43/81 under section 13/XX/65 of the Arms Ordinance. After usual investigation the challan was submitted and the appellant was convicted and sentenced as aforestated. Learned counsel has argued at the very outset that the trial of the appellant by the learned Addl. Sessions Judge in view of the amendment made through Ordinance XXI of 1976 in the Arms Ordinance XX of 1965 was illegal and coram non judice because of the addition of section 14-A, which provides as under:. "14-a(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 to in the proviso to the said section 13, be triable by a magistrate of the first class. (2) All cases relating to offences 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 (XXI of 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." In support of this he has relied upon Atta Muhammad v. The State 1988 P Cr. L J 2179. The reading of this section makes it very clear that after this amendment, the case was exclusively triable by Magistrate first class having jurisdiction in the area and as such learned Additional Sessions Judge, Kasur had no jurisdiction in the matter. Resultantly, trial by him was illegal and coram non judice and as such the conviction and sentence cannot stand. This position has not been controverted by the learned counsel appearing for the State. Ordinarily in such like eventualities the case is remanded to the proper Court for its adjudication in accordance with law but in this case the appellant had already been acquitted in the main murder case and keeping in view the agony of the protracted trial suffered by the appellant, I do not think it appropriate to remit the case for retrial. For the foregoing reasons, I accept the appeal and set aside the conviction and sentence of the appellant. S.A./A-1259/L Appeal accepted.