1987 PLP 808 (MLD)

2. According to prosecution the appellant was arrested in a murder case on 30-12-1981 vide FIR No.857 dated 27-12-1981 registered at police station Cantonment, Rawalpindi. During investigation while in custody he led the police to a room in village Dhoke Warra, district Rawalpindi, and got recovered pistol P.1 alongwith 24 cartridges P.5/1 to 24 contained in bandolier P.3 and two magazines P.2/1 to 2 which were secured under memo Ex-PB attested by Abdul Khaliq (PW 2). As the appellant could not produce any licence for keeping the abovementioned items of ammunition, therefore, ASI Muhammad Khan (PW 3) drafted the complaint Ex-PA under section 13 of the Arms Ordinance and sent the same for the formal registration of the case to police station which was done and after recording statements of the witnesses challaned the accused to Court.

3. In support of its case the prosecution examined 3 witness namely Ashraf (PW1) Abdul Khaliq (PW 2) and ASI Muhammad Khan (PW 3) at the trial.

4. The appellant in his statement under section 342 Cr. P. C., denied the allegation levelled against him and led no evidence in defence. Learned trial Court held the appellant guilty and sentenced him as indicated above. hence this appeal.

5. At the very outset, I find that the trial held by learned Additional Sessions Judge in the case suffers from jurisdiction because according to section 14-A read with section 13 of the Ordinance, offence with regard to arms other than those mentioned in proviso to section 13 of the Arms Ordinance, 1965, are exclusively triable by Magistrate 1st Class. Sections 13 and 14-A of the Ordinance are reproduced hereunder:- Section

13. Penalty for breach of sections 4, 5, 8 to 11.- Whoever commits any of the following offences, namely:- (a) to (i). * * * * Provided that * * * * Explanation * * * * Provided that the punishment for an offence committed in respect of any-- (a) cannon, grenade, bomb or rocket, or (b) light or heavy automatic weapon, rifle of .303. bore or over, musket of 410 bore or over or pistol or revolver of .441 bore or over, or ammunition which can be fired from such weapon, rifle or revolver, shall be imprisonment for a term which is not less than three years. Section 14-A. Certain offences triable by Magistrate. --(1) Notwithstanding anything contained in the Code o 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) * * * * * In view of the above provision Magistrate 1st Class only is competent to try those cases where arms recovered from the accused are other than those mentioned in second proviso to section 13 of the Ordinance. The pistol recovered from the appellant is of .32 bore which is smaller than the bore mentioned in second proviso to section 13, therefore, trial of the appellant under section 13 of the Arms Ordinance, 1965 by the Sessions Judge, is not competent. Consequently, I would allow this appeal and acquit the appellant of the charge. I refrain from ordering fresh trial, because the appellant has remained in jail for over one year. The appeal stands disposed of accordingly. M. Y. H./A-117/L Appeal allowed.