1993 PCr (PLP)

Qamar Afzal for the State. Irshad Ahmad Qureshi for the Complainant. Date of hearing: 7th July, 1992. This appeal is directed against the judgment dated 21-4-1982 of the learned Additional Sessions Judge, Sheikhupura, whereby he convicted Abdur Rehman appellant under section 13 of the Arms Ordinance, 1965 and sentenced him to one year's R.I.

2. During the course of investigation of a murder case, which is the subject-matter of Criminal Appeal No-226 of 1982, the appellant got recovered gun P.1 from a room of his Haveli which was taken into possession vide memo. Exh.PA. The appellant could not produce its licence; hence a case under section 13 of the Arms Ordinance, 1965, was registered against him.

3. Learned counsel for the appellant at the very outset took up a legal objection to the effect that trial of the appellant by the learned Additional Sessions Judge, Sheikhupura, was coram non judice. He relied upon Pakistan Arms (Amendment) Ordinance, 1976, whereby section 14-A was inserted in Pakistan Arms Ordinance, 1965. Subsection (1) of section 14-A ibid envisages that 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. Subsection (2) of section 14-A, further provided that ail 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, 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.

4. I have heard the learned counsel for the appellant and the learned counsel for the State, who could not controvert this legal position, that the case in hand was exclusively triable by a Magistrate of the first class as the occurrence in the present case took place in the year 1980, i.e. after the commencement of the Pakistan Arms (Amendment) Ordinance, 1976, and as such the trial by the learned Additional Sessions Judge, was coram non judice. In this view of the matter, I accept this appeal and set aside the conviction and sentence of the appellant.

5. The next question which falls for determination is whether retrial should be ordered or not. I find that the occurrence took place in the year 1980, The appellant had already undergone the agony of trial and since 1982, his appeal is pending in this Court. In the circumstances, I think no useful purpose would be served by remanding the case to the learned Magistrate, for retrial. N.H.Q./A-330/L Appeal accepted.