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Criminal Appeal No. 48 of 1983, decided on 30th March, 1987.
--Ss. 13, 14 & 14-A--Chhuri recovered from possession of accused not covered by proviso to S. 13 of Ordinance and case exclusively triable by Magistrate Ist Class and not by Additional Sessions Judge- Trial by Additional Sessions Judge, held, illegal -being coram non judice--Conviction and sentence set aside and accused acquitted.
Sardar Muhammad Ishaque Khan for Appellant.
Muhammad Aslam Malik for the State.
Raja Muhammad Anwar for the Complainant.
Dates of hearing: 29th and 30th March, 1987.
.--Tariq Ahmad son of Allah Dad caste Dhond aged 25 years resident of village Pindora, tehsil and district Rawalpindi, has filed the instant appeal against the order of Additional Sessions Judge, dated 13-3-1983, whereby he has been convicted under section 13 of the Arms Ordinance, 1965 (hereinafter called the Ordinance) and sentenced to one year's rigorous imprisonment.
2. According to prosecution, the appellant was arrested by S.I. Ghulam Yasin Khan (P.W.3) in connection with a murder case. 17-11-1980 while in police custody he led to the recovery of blood stained Chhuri P.1 of prohibitory length from a Paiti lying in his garage which was taken into possession vide memo. Exh. P.A. The appellant did not produce licence for possessing this weapon, therefore the S.I. got a case registered at Police Station New Town, Rawalpindi, under the Arms Ordinance vide F.I.R. Exh.P.D. and after due investigation challaned the appellant to Court.
3. At the trial, Abdul Latif (P.W.1) and S.I. Ghulam Yasin Khan (P. W.3) deposed about recovery of this weapon from the appellant. When examined under section 342, Cr.P.C. the appellant denied the recovery and stated that he had been falsely implicated due to enmity. He, however, produced no evidence in defence. Learned trial Court, therefore, having believed the prosecution case held the appellant guilty under section 13 of the Ordinance and sentenced him as indicated above, hence this appeal.
4. According to section 14-A of the Ordinance, an offence punishable under section 13 or section 14 is triable by a Magistrate of the first class unless it has been committed in respect of any of the arms, ammunitions or military stores referred to in the proviso to the said section 13. The arms and ammunition mentioned in proviso to section 13 are.
(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, musket, pistol or revolver.
Since Chhuri is not mentioned in the proviso 13' therefore, the case was triable exclusively by a Magistrate of the first class and not by the Additional Sessions Judge. Consequently we find that trial in this case held by the Additional Sessions Judge was illegal being coram non-judice. Consequently, we allow this appeal, set aside the conviction and sentence of the appellant and acquit him. We have refrained from ordering retrial of the appellant because he has remained in jail, for about three years, till he was allowed bail by this Court on 3-4-1983. He stands discharged of his bail bonds.
M.Y.H./T-15/L Appeal allowed.
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