2016 P Cr. L J 1711
[Balochistan (Sibi Bench)]
Before Muhammad Kamran Khan Mulakhail and Muhammad Hashim Khan Kakar, JJ
STATE through DPG ---Appellant
Versus
MUHAMMAD RAFIQUE through Naib Tehsildar ---Respondent
Criminal Acquittal Appeal No.S -160 of 2013, decided on 28th November, 2014.
Pakistan Arms Ordinance (XX of 1965) ---
----Ss. 13(e) & 14 -A---Criminal Procedure Code (V of 1898), Ss.417, 190 & 249- A---Possessing
unlicensed arms ---Appeal against acquittal---Jurisdiction of Magistrate to try offence ---
Kalashnikov along with three magazines containing 176 live cartridges were recovered from
accused ---Challan of the case was submitted but Judicial Magistrate, instead of transmitting the
challan of the case to the Sessions Judge/Trial Court, retained the sam e, and on receiving
application under S.249- A, Cr.P.C., acquitted accused through impugned order ---Validity ---
Magistrate under S.14- A of Pakistan Arms Ordinance, 1965, had jurisdiction to try the offences
punishable under Ss.13 & 14 of Pakistan Arms Ordina nce, 1965, except the offences referred in
the Proviso to S.13 of the Ordinance ---Kalashnikov, which was an automatic weapon, fell within
the proviso to S. 13 of Pakistan Arms Ordinance, 1965---Magistrate, in circumstances, had no
jurisdiction to try the s ame---Trial and proceedings conducted by the Magistrate, were 'coram
non judice'---Subject to subsection (2) of S. 190, Cr.P.C., Judicial Magistrate was bound to send
the case to the Court of Session for trial without any evidence ---Impugned order of acqui ttal of
accused, did not contain any reason or ground for the same ---Magistrate, did not even mention
the detailed facts of the case for forming an opinion ---Order of the Magistrate was not at all a
speaking order which in no manner could be called 'judici al order within the parameters of law' --
-Order in question was passed in hasty manner, without adhering to the relevant provisions of
law---Impugned order being sketchy, non -speaking and devoid of reason assessed without
jurisdiction, was set aside and cas e was remanded to Judicial Magistrate of its onward
transmission to the concerned Sessions Judge for de novo trial.
Mehar Khan v. Yaqoob Khan 1981 SCMR 267 rel.
Muhammad Iqbal v. Secretary Ministry of Industries of Pakistan PLD 2004 SC 413 ref.
Jameel A khtar, Deputy Prosecutor General for Appellant.
Muhammad Ashraf Abro for Respondent.
Date of hearing: 26th September, 2014.
JUDGMENT
MUHAMMAD KAMRAN KHAN MULAKHAIL, J. ---Through this Criminal
Acquittal Appeal under section 417 of the Criminal Procedure Code, 1898 ("the Cr.P.C") learned
Deputy Prosecutor General ("DPG") seeks reversal of the order dated 8th October, 2013 ("the
impugned order") passed by the learned Judicial Magistrate, Dhadar ("the trial court"), in judicial
case No.13 of 2013 vide FIR No.24 of 2013 under section 13- E of the Pakistan Arms Ordinance,
1965 ("the Ordinance").
2. It is the case of prosecution that on the fateful day at about 9:10 p.m. a Kalashnikov
bearing No.3341 along with three magazines containing 176 live cartridges were recovered from
the respondent Muhammad Rafiq son of Haji Khan. The record reveals that after completion of
investigation, challan of the case was received by District Attorney, Sibi on 20th August 2013,
which was transmitted to the learned trial Court for onward transmission to the competent Court
of law, however, for the reasons best known to the learned trial Court instead of transmitting the
challan of the case to the learned Sessions Judge, Sibi the trial Court retained the same and
issued production wa rrants of the respondents on 9th September 2013. The charge was framed
and the statement of the complainant viz Shah Nawaz, Dafedar was recorded and after receiving
an application under section 249- A, Cr.P.C. acquitted the respondents through the impugned
order, operating portion whereof reads as under:
"In conclusion; the court has perused the record and thoroughly analyzed [sic] the
application's grounds. Hence; the court at this stage is inclined to accept the application
and dispose of the case on the basis of application under section 249- A, Cr.P.C."
3. Mr. Jameel Akhtar, learned DPG contended that the impugned order passed by the
learned trial Court is contrary to law, facts and justice; the learned trial Court has not applied its
judicial mind to the facts and circumstances of the case and has passed an order, which cannot be
termed as a speaking order; neither the facts of the case nor the contentions of the public
prosecutor have been mentioned in the impugned order for forming the opinion. He added that
the material witnesses i.e. recovery witnesses and the statement of I.O. were yet to be recorded,
while the learned trial Court has passed the impugned order in a hasty manner, which may be the
result of colourful exercise, which has caused serious pr ejudice to the appellant and resulted into
miscarriage of justice, therefore, the same is liable to be set aside.
4. When Mr. Muhammad Ashraf, Advocate appearing on behalf of respondent was
confronted with the contention raised by the learned DPG, he while feeling himself not in a
position to defend the impugned order frankly, conceded and fairly suggested that it would be
appropriate to remand the case to the trial Court for its onward transmission to the learned
Sessions Judge concerned.
5. This appeal was filed on 28th December 2013 and on two consecutive dates matter could
not be heard due to the office objections and came up for hearing at Katcha Peshi stage on 23rd
April 2014, when it was admitted to regular hearing and notice was issued to the respondent and
complainant/PW -1 viz Shahnawaz Dafedar. The Inspection Branch of this Court was also
enquired about the passing of acquittal order by the learned Judicial Magistrate, Dhadar, where
after the explanation furnished by the Presiding Officer was placed on record. On perusal of
explanations the inspection branch shows its discontentment to the reply and the explanation was
not found satisfactory. The explanations submitted by the learned judicial officer reveal that he
misconstrued the law and had taken a stance that since the District Public Prosecutor forwarded
the challans of connected cases to his court, therefore, he retained the challan of the instant case,
in which offence under section 13- E of the Ordinance in respect of recovery of Kalashnikov wa s
involved.
6. Section 190 of the Cr.P.C. and section 14 -A of the Ordinance are applicable in this case,
therefore, it would be appropriate to reproduce both the relevant provisions from referred to
enactments:
Criminal Procedure Code, 1898.
"190. Cognizance of offences by Magistrates. All Magistrates of the first class, or any
other Magistrate specially empowered by the Provincial Government on the
recommendation of the High Court may take cognizance of any offence:
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a report in writing of such facts made by any police -officer, or upon his own
knowledge or suspicion.
(c) upon information received from any person other than a police -officer, or upon
his own knowledge or suspicion.
that such offence has been committed which he may try or send to the Court of Session
for trial.
(2) A Magistrate taking cognizance under subsection (1) of an offence triable exclusively
by a Court of Session shall, without recording any evidence send the case to Court of
Session for trial.
Pakistan Arms Ordinance, 1965.
14-A. Certain offences triable by Magistrates. (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."
Keeping in view th e referred to provisions, it would be more helpful to reproduce the
provisos to section 13 of the Ordinance, which reads as follows:
13. Penalty for breach of sections 4, 5, 8 to 11.
Subject to section 13- A whoever commits any of the following offences, namely:
(a)... (b)... (c)... (d)... (e)... (f)... (g)... (h)... (i)
Provided that the punishment for an offence committed in respect of any;
(a) canon, 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,
shall be imprisonment for a term which is not less than three years.
Provided that the punishment for an o ffence committed in respect of any rifle of .303
bore or over, musket of .410 bore or over, pistol or revolver of .441 bore or over, or
ammunition which can be fired from such musket, pistol or revolver, shall be
imprisonment for a term which is not less than three years."
Under section 14- A of the Ordinance, the magistrate had jurisdiction to try the offences
punishable under sections 13 and 14 of the Ordinance except the offences of any arms and
ammunition referred to in the provisos to section 13 of the Ordinance. The Kalashnikov is
covered by the proviso to section 13 of the Ordinance, therefore, the learned magistrate had no
jurisdiction to try the case, hence the trial and proceeding conducted by the magistrate were
'coram non judice'. Whilst subject to subsection (2) of section 190 of the Cr.P.C., the learned
Judicial Magistrate was bound to send the case to the court of session for trial without recording
any evidence. He was, in fact, required to take cognizance of such a matter to enquire into the
case and to apply his mind to whatever material is placed before him by the police or the
complainant to determine, whether the allegation made in the police report, private complaint or
information received by him, make out a prima facie case triable excl usively by the court of
session or not. He could have also taken cognizance of the cases exclusively triable by the court
of session, but only to the extent of determining the forum of trial. Reliance in this behalf is
placed upon the case of Mehar Khan v. Yaqoob Khan, reported in 1981 SCMR 267.
7. However, the explanation furnished by the learned Judicial Magistrate with regard to the
recommendation of District Public Prosecutor for trial of connected cases is also misconceived
and shows obliviousness of l earned presiding officer, because the mandate conferred upon him
under section 190, Cr.P.C. is silent about the recommendation of public prosecutor, and it
provides complete powers to a magistrate to decide whether the case is triable by him or is
exclusiv ely triable by the court of session. Section 28 of the Cr.P.C. is relevant to understand the
controversy, which reads as follows:
"28. Offences under Penal Code. Subject to the other provisions of this Code any offence
under the Pakistan Penal Code may be tried:
(a) by the High Court; or
(b) by the Courts of Session; or
(c) by any other Court by which such offence is shown in the eight column of the
second schedule to be triable.
Illustration
A is [tried by] the Sessions Court on a charge of culpable homicide. He may be convicted
of voluntarily causing hurt, an offence triable by a Magistrate."
In view of referred to provision of the Cr.P.C. no cavil is left to hold that, firstly, when an
offence exclusively triable by a court of Judicial Magistrate comes together as a part of one
charge sheet in which the major offence is exclusively triable by the Court of Session, the section
28, Cr.P.C. will come into play and the case shall be tried by the court of session. Secondly,
adhering to this principle suf fice is to say for the benefit of all concerned that two different cases
of cross -versions one triable by the courts of session and the other triable by the court of judicial
magistrate, shall necessarily be tried by the court of session and thirdly, the c onnected cases one
triable by the court of Session and the other triable by the court of judicial magistrate shall also
be tried by the court of session. For instance a case of culpable homicide followed by another
case of recovery of arms being off -shoot of the main case shall also be tried by the court of
session, irrespective of the fact that the arms case does not fall within provisos to section 13 of
the Ordinance and comes within the purview of section 14- A of the Ordinance, which in ordinary
course i s exclusively triable by the court of judicial magistrate.
Thus, in view of above observation the explanation furnished by the learned judicial
magistrate to the effect that since challan in connected cases were passed and recommended to
be tried by his c ourt and therefore, he retained the challan of the arms case pertaining to recovery
of Kalashnikov, is totally misconceived being contrary to law and against the rule of prudence
and principles of administration of justice.
Even otherwise, it is common knowledge that Kalashnikov is an automatic weapon
commonly known as AK -47 assault rifle, which falls within the proviso to section 13 of the
Ordinance and irrespective of its connectivity to any other case or whether it comes with a
connected case or indepen dently, in both situations, it shall be tried by the court of session in
view of section 14- A of the Ordinance.
8. We have perused the impugned order passed by the learned trial court, which does not
contain any reason or grounds for acquittal of the respondents. The learned trial Court did not
even bother to mention the detailed facts of the case for forming an opinion. It is observed with
great disapproval and dismay that the learned trial Court without discussing the contentions of
the learned public prosecutor, abruptly came to the conclusion mentioned hereinabove. The
impugned order is not at all a speaking order and in no manner can be called "judicial order
within the parameters of law". The contents of the impugned order manifest non- application of
judicial mind. This Court has time and again disapproved passing of such perfunctory orders. In
this regard reference can be placed on the case of Muhammad Iqbal v. Secretary Ministry of
Industries of Pakistan, (PLD 2004 SC 413), wherein the Hon'ble Supreme Court held as under:
"3. It may be noted that the forums seized with the judicial matters are required to pass
such a speaking judgment that it should give an impression to readers that the legal and
factual aspects of the case which were raised before it for the purpose of decision have
been considered and decided in the light of recognized principles of law on the subject
instead of disposing of in slipshod manner.
4. We have noted with great concern that in instant cases although the pleadings of the
parties had been reproduced through and through but the contentions of the parties and
the points on which they were resting their cases were not taken into consideration at all.
Be that as it may, in these circumstances, both the sides stated that instead o f allowing the
petitions to remain pending on the file, if leave is granted, the cases may be remanded to
the Service Tribunal for fresh decision after providing opportunity of hearing to all
concerned, keeping in view the observations made hereinabove."
9. Before parting with the judgment in hand we have painfully observed that the learned
trial Court has passed the impugned order in hasty manner without adhering to the relevant
provision of law. We have also observed that the impugned order has admittedly been passed in
violation of all norms of dispensation of criminal justice and without authority.
10. In such view of the matter without commenting on merits and demerits of the case, as it
would prejudice the case of the either party. The order impugned being sketchy, non- speaking
and devoid of reasons and being assessed without jurisdiction is hereby set aside and the case is
remanded back to the learned trial Court for its onward transmission to the concerned Sessions
Judge for de novo trial. The appeal is accordingly disposed of.
11. Copy of this order be placed before the Administrative Committee of this Court for
taking appropriate action against the incumbent official. We are also left with no other option but
show our concern to the performance of the concerned Deputy Commissioner while not taking
any action against the complainant Shah Nawaz, Dafedar who prima- facie seems to have joined
the hands with the criminals just to save them from the clutches of law. The record reveals that
statements of reco very witnesses were recorded and the investigation of the case was conducted
by the police officials however, neither any departmental action has been taken against Shah
Nawaz complainant nor the machinery of criminal law has been set in motion by lodging of FIR
against the said Shah Nawaz under sections 182 and 211, P.P.C.
Copy of this order be sent to Inspection Branch of this court for onward transmission to
all the courts of criminal jurisdiction. Copy be also sent to the concerned Deputy Commissioner
(District Kachhi).
HBT/54/Bal. Case remanded.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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