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Criminal Appeal No.672 of 1984, decided on 7th June, 1987.

---Ss.13 & 4--Evidence, appreciation of--Want of a valid licence is a condition precedent for offence under S.'13 of Arms Ordnance--Onus to prove possession of arms by 'accused and further his having no licence for such arms is invariably on prosecution--Prosecution witnesses not making statement that accused, had no licence for arms recovered from his possession--Offence under S.13,. Arms Ordinance, held, was not brought home to accused in circumstances.

Muhammad Akhtar Shabbir, Asstt. A.-G.for the State:

This Criminal Appeal against acquittal arises from the judgment of learned Magistrate Ist Class, Wazirabad, whereby he on 31-5-1984 acquitted Muhammad Aslam respondent of the charge under section 13 of the Arms Ordinance, 1965.

2. The allegations against him were that on 1-10-1983 he was found keeping unlicensed carbine with him near Mor Haripur Band of P.S. Saddar, Wazirabad. He denied the allegations and claimed to be tried.

3. To prove its case prosecution produced 3 witnesses namely, Muhammad Khan P.W.1, Rehmat Ullah P.W.2 and Syed Saghir Hussain Shah, ASI, P.W.3. They deposed that at the time of his arrest in the connected murder case, a carbine was recovered from the possession of the petitioner on his personal search.

4. When examined under section 342, Cr.P.C., he denied the possession of unlicensed carbine. He did not produce any evidence in defence.

5. The learned Magistrate while disbelieving the P.Ws acquitted the respondent of the charge vide his judgment dated 31-5-1984 on the ground that Muhammad Khan P.W.1 and Rehmat Ullah P.W.2 being brother and nephew respectively of the deceased of the connected case, were not reliable and no independent person from the vicinity was produced by the prosecution.

6. Learned Assistant Advocate-General submits that the reasons given by the trial Court for the acquittal of the accused are untenable inasmuch as, the evidence of Muhammad Khan P.W.1 and Rehmat Ullah P.W.2 could not have been rejected on account of mere relationship with the deceased of the connected case and that Syed Saghir Hussain Shah, ASI, P.W.3 was also a dependable witness.

7. I have considered the submissions made by the learned counsel with care and have examined the evidence produced by the prosecution. I feel that the evidence accepted at its face value no case of keeping unlicensed carbine is made out, inasmuch as, the P.Ws. have not stated that the respondent had no licence to keep carbine The relevant provisions of law may be quoted advantageously:-

S.13. "Whoever commits any of the following offences, namely:-

(a) sells, or keeps, offers or exposes for sale, any arms, ammunition or military stores, or undertakes the repairs of any arms in contravention of the provisions of section 4;

(b) ..............................

(c) ........................ ..

(d) ... ..

(e) has in his possession or under his control any arms, ammunition or military stores in contravention of the provisions of section 9".

S.4(1) "No person shall sell, or keep, offer or expose for sale, any arms, ammunition, or military stores, or undertake the repairs of any arms, except under a licence and in the manner and to the extent permitted thereby."

S.9. "No person shall have in his possession or under his control any arms, or any ammunition or military stores, except under a licence and in the manner and to the extent- permitted thereby."

From the examination of the relevant provisions of law repro duced above, it is very much obvious that possession similiciter of an arm is not an offence punishable under the Ordinance. A person can be convicted when it is proved that he had no licence to keep the arm or he was possessing "unlicensed arm". The want of licence is main ingredient of offence punishable under section 13 of the Arms Ordinance, 1965. That being the position,. I am of the view that the conviction of the respondent on the basis of evidence on record is not possible under the law. The onus was on the prosecution to prove not only the possession of arms by the petitioner but also that he had no licence to keep the same. Since prosecution has failed to prove that the petitioner had no licence to keep the carbine, therefore, there is no option but to dismiss this appeal. Order accordingly.

S.G.D./S-107/L Appeal dismissed.

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