1992 P Cr (PLP)

(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."

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 1988 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 Sadiq 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 Mchmood 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 and (xiv) Akbar Khan v. The State 1991 M L D 1829.

10. In the case of Asal Khan v. The State reported in 1990 P Cr. L J 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 Class 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 (1) of section 29 of the Code are very clear:"

11. Out of the above citations the cases at Serial No.(1) to (v) and (ix) to (xi) 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."

12. 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 learned Und Additional Sessions Judge (South) A 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 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. N.H.Q./M-1559/K????????????????????????????????????????????????????????????????????????????? Appeal allowed.