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Criminal Revision No. 443 of 1968, decided on 21st May 1968.

Ss. 9, 13 & 16-- Licensee temporarily delivering his revolver to another person to enable him to urinate‑Magistrate convicting licensee but acquitting person having temporary possession of revolver and thus applying double standard in regard to same set of circumstances ‑ Such delivery of licensed firearm, held, in circumstances of case, not contemplated by S, 9 so as to fall within mischief of S. 13.

Hassan Khan v. State P L D 1967 Pesh. 103 ref.

Abdul Hamid Malik for the State,

The facts of this case are as follows:‑

The petitioner was found guilty of an offence under section 16 of the Arms Ordinance of 1965 and sentenced to a fine of Rs. 20. No appeal lies when a Magistrate of the First Class has imposed a fine less than Rs. 50. The petitioner has, therefore, moved this revision‑petition and challenges the conviction and the sentence against him.

On 24‑9‑66 a revolver which was licensed in the name of the petitioner was recovered from one Haq Niwaz in the presence of Khadim Hussain and Kallu P. Ws. Haq Niwaz was proceeded under section 13 of the Arms Ordinance for being in possession of an unlicensed weapon and a separate case under section 16 of the Arms Ordinance of 1965 was instituted against Muhammad Ali petitioner for allowing Haq Niwaz to use his licensed weapon. The petitioner explained that he had gone to urinate and had merely handed over the revolver to Haq Niwaz and on his return he found that the Police had taken into possession the revolver from Haq Niwaz and instituted a case against him and the petitioner. This is borne out from the evidence of Khadim Hussain P. W. 2 in particular. The learned trial Magistrate has also come to the same conclusion that the petitioner had left the scene only for a short while and given the revolver to Haq Niwaz when the petitioner himself went away to urinate. The learned Magistrate has held that this temporary transfer of possession amounted to an offence under section 16 of the Arms Ordinance.

The proceedings are forwarded for Revision on the following grounds. The term possession' has judicially been interpreted in a number of authorities both under the Arms Act of 1878 as well as under the present Arms Ordinance. I have been referred to P L D 1967 Pesh. 103 and P L D 1967 Pesh. 116 page 116 part from some Rulings on the Arms Act of 1878. They are all on the point that a temporary transfer of possession without the intention that the weapon could be used by such temporary transferee will not amount to possession as envisaged by the Arms Ordinance. It appears that the learned Magistrate has not been referred to the accepted view of the Superior Courts on this point. In the present case it is obvious that the petitioner had merely given the revolver to Haq Niwaz for the period that he took for the purpose of urination. It was this brief gap that the police stepped in and prosecuted both, the petitioner and Haq Niwaz. It may be pertinent to mention at this stage that Haq Niwaz has been acquitted of the charge against him.

In view of the above reasons I find that there has been a miscarriage of justice as the order of the learned Magistrate convicting the petitioner was illegal. It is, therefore, recommended that the sentence passed against the petitioner be reversed.

Muhammad Ali son of Fazal Elahi of Chak No. 106, Police. Station Bhagtanwala, District Sargodha was convicted by S. Gul Hussain Bokhari, Magistrate First Class, Sargodha on 19th December 1967, for an offence under section 16 of the Arms Ordinance of 1965, for having delivered his licensed revolver to one Haq Nawaz son of Muhammad Khan of the same village, and was sentenced to a fine of Rs. 20. Haq Niwaz aforesaid was also simultaneously proceeded against under section 13 of the Arms Ordinance but was acquitted. The plea taken up by Muhammad Ali. at the trial was that he had handed over his licensed revolver to Haq Niwaz, as he wanted to urinate when in the meanwhile, Ikramullah Khan, Sub‑Inspector of Police Station Kerana took the same into possession and challaned him.

2. Relying on P L D 1967 Pesh. 103 and 116, the learned Sessions Judge has questioned the legality of the order of conviction on the ground that temporary transfer of possession in the circumstances of the case did not amount to possession as envisaged by section 9 of the Ordinance, made punishable under section 13 ibid. The position taken up by the learned Sessions Judge is 'unexceptionable. The fact that Haq Niwaz A who was found in possession of an unlicensed revolver belonging to Muhammad Ali was acquitted under section 13 and very rightly so would clearly show that double standard were applied in regard to the same set of circumstances. Obviously such delivery of licensed revolver by Muhammad Ali to Haql Niwaz in the circumstances is not contemplated by section 9, so as to fall within the mischief of section 13 of the Ordinance.

3. In consequence the reference is accepted and the conviction and sentence of the petitioner are set aside. The fine, if already paid, shall be refunded to the petitioner.

S.Q. Petition accepted.

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