Find a Lawyer

Criminal Revision No. 50 of 1932, decided on 20th February, 1983.

-----S. 13 (d) read with S. 8--Revolver secured from accused empty and no bullet recovered from his person-Accused, held, can still be said to be going armed'--A fire-arty, held further, does not cease to be a fire-arm only because it is unaccompanied by ammuni tion capable of being used nor will it loge, its identity as fire-arm on account of needing any repair or having become temporarily unserviceable.

1925 M L J 502 and Emperor v. Harpal Rai I L R 1902 All. 154 ref.

Emperor v. Muhammad Punjal A I R 192.5 Sind 177 and Emperor v, Gajraj Singh A I R 1937 Nag. 213 rel.

M. B. BMW for Appellant.

Gul Bahar Korai, A. A. G. for the State.

Date of hearing: 10th February, 1983.

The Petitioner Ghulam Rasool was convicted under section 13 (D), Pakistan Arms Ordinance, 1965 (hereinafter referred to as the said Ordinance) arid sentenced to R.I. for one year by Additional City Magis trate, Sukkur by his judgment dated 25th February, 1982. Although the appeal preferred by him against his conviction and sentence failed, the sentence was reduced to 4 months' R. I. vide judgment dated 4th Novem ber, 19182 of the Sessions Judge, Sukkur. The present revision application is directed against the judgment of the Sessions Judge.

2. The only point urged by. Mr. Moula Bakhsh Bhatti appearing on behalf of the petitioner is that to view of the evidence on record the conviction of the petitioner under section 13 (D) could not be sustained. The learned counsel contended that the revolver allegedly secured from the petitioner was empty and had no bullet in it nor any bullet was separately recovered from his person and. as such he could not be held to be "going armed" within the meaning of clause (D) of section 13 of the said Ordinance. He cited two Indian authorities in support of his contention.

3. It is admitted that the revolver was secured from the petitioner's person when he was seen going away and stopped near lime kiln by Police party on a patrol duty at the Odd hour of the night, There is no evidence to show that besides the revolver, any bullet or other ammunition capable of being cased in the revolver was recovered. The question would arise if the petitioner could be held to be "going armed" under section 13 (D) of the said Ordinance.

4. In the first Indian case relied upon by the learned counsel for the appellant, Sonaimutu Ambalam 1925 M L J 502, the expression "going armed" came up for consideration. It was held: -

The expression "going armed" clearly indicates two things, namely, firstly of an intention to use it as a fire-arm and secondly, the possibility of using it. In this case there was only one empty cartridge in the weapon and no cartridges at all have been found on the person of the accused. This alone would show that, in the circumstances under which he was found to be in possession of the fire-arm, it would not be possible for him to use the weapon as a fire-arm."

5. The other Indian case referred in this connection is Emperor v. Harpal Rai (I L R 1902 All. 454) wherein it was observed:" The essential of the offence is the going armed, that is, carrying a weapon with the intention of using it as a weapon when the necessity or opportunity arises. It is difficult to understand how a pistol, which was in need of repairs could be seriously looked upon either as a weapon of offence or defence.

6. As against the above authorities contrary view was taken in the Sind case reported as Emperor v. Muhammad Punjal (A I R 1925 Sind 177) wherein it was held.

"A gun whether or not there is ammunition for its use in the immediate control or actual possession of the holder of it is assuredly an arm and he who goes about with an arm is according to the Vernacular "armed" Nor can we find that there is any legal interpretation of the word "armed" in the Arms Act or elsewhere binding upon us contrary to the vernacular use."

7. 1n an other case reported as Emperor v. Gajraj Singh (A I R 1937 Nag. 213), the above Sind case was followed and it was observed: -

"We agree with the remarks of Kincaid, J. C. in A I R 1925 Sind 177, that a person who carries about a gun without any ammunition can be said to go armed. The absence then of the percussion cap would not be fatal to the prosecution

8. I am in respectful agreement with the view expressed in the above reported Sind case, which was subsequently followed by the Nagpur High Court. Of course this view runs counter to the view taken in Madras case and Allahabad case referred to above, but it appears more logical anti nearer the realities of life.

9. Keeping the above authorities in mind, I am of the opinion that fire-arm does not cease to be a fire-arm only because it is unaccompanied by ammunition capable of being used in the said fire-arm nor will it lose its identity as fire-arm on account of needing any repair of having become temporarily unserviceable. Thus if any person goes about carrying on his person any fire-arm which is either unaccompanied by the ammunition or is temporarily out of order, he will still be held as "going armed".

10. For above reasons the arguments of the learned counsel for the petitioner is without force. Accordingly the revision petition is dismissed.

M. Y. H. Petition dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.