P L D 1976 Peshawar 26 (PLP)

In my opinion, there is no obligation laid down in the section that one year's punishment must be given. On the other hand, there is a discretion of fine or imprisonment in the section . . . . ." It seems that when the case came before learned District Magistrate, Peshawar in revision, he disagreed with the said view of trial Magistrate. And consequently referred the case to this Court recommending that the accused may be awarded proper sentence prescribed in the proviso to section 16 of Arms Ordinance. In order to see if the learned District Magistrate was right in his view, the relevant part of this section may be reproduced :

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16. Whoever- (a) . . . . . . . . . . . . . . . . . . . . . . . . (b) delivers any arms, ammunition or military stores into the possession of any person without previously ascertaining that such person is legally authorised to possess the same, shall be punished with imprison ment for a term which may extend to three years or with fine, or with both :- Provided that if such offence is committed in respect of any firearms, military stores or ammunition, the imprisonment with which the offender shall be punished shall not be less than one year" A look at the language of clause (b) would show that anyone delivering any arms, ammunition of military stores in possession of any person without previously ascertaining that he is legally authorised to possess the same would be deemed to have committed an offence for which he shall be punished with imprisonment for a term which may extend to three years or with fine, or with both. In other words, tae nature and quantum of sentence has been left by the Legislature to the discretion of Magistrate. But when we proceed to consider the proviso appearing under that clause, the position would appear to be somewhat different. A glance at the language of the proviso would show that in-there the Legislature seems to have countermanded the discretion given to Courts under clause (b) directing that an accused shall, on his conviction in respect of any firearms, military stores or ammunition, be punished with imprisonment which shall not be less than one year. Now by reading clause (b) of section 16 and the said proviso together, one is led to an evident anamolous situation. Except for the expression "arms" appearing in clause (b), the language of that clause is identical with the one used in the proviso except that instead of "arms" the expression used therein is "firearms". A reference to clause (b) of subsection (1) of section 3 of Arms Ordinance would, however, show that the use of expression of "arms" and "firearms" in the said two provisions is of no consequence, for in-there "arms" has been defined to include (i) cannon ; (ii) fire-arms of all types, such as light and heavy automatic and semi automatic weapons, rifles, carbines, muskets, shotguns (whether single or double barrelled), revolvers, pistols and appliances the object of which is the silencing of fire-arms ; (iii) air pistols, bayonets, swords, sword sticks, daggers and knives with blades of four inches or more (but not kitchen knives or knives used in good faith for the carrying on of a profession) ; (iv) knuckle-dusters, spears, spearheads, bows and arrows and parts of arms." It would thus be obvious that "arms" and "firearms" have the same connotation, And therefore it is difficult to appreciate as to why for the same offence under clause (b) of section 16 of Arms Ordinance, the Legislature should have left to the discretion of Courts the determination of nature and quantum of sentence and taken it away in the proviso appearing thereunder. The one possible answer to this question can be that since the expression "arms" used in clause (b) of the section has been defined to include bayonets, daggers and knives etc. which are evidently less dangerous than firearms, the Legislature thought it fit to leave to Courts the discretion to award to an accused whatever sentence was considered to be appropriate. On a closer examination of the other provisions of that clause and the proviso thereunder however, this does not seem to be the case. In both these provisions, the possession of unauthorised military stores or ammunition is said to be an offence, and therefore it does not stand to reason that whereas under clause (b) the Courts would, in a given case, have the discretion to determine the nature and quantum of sentence, but for the same offence this discretion has been taken away from them under the proviso. Had the scope of proviso been confined to the possession of firearms, this distinction would have been understandable. But in regard to the unauthorised possession of ammunition or military stores, it cannot be appreciated. I am, therefore, of the opinion that by creating this anomalous distinc tion, the Legislature seems to have, and I say so with respect, contradicted itself. In order to remove this anomaly, an amendment is required to be :made in section 16 of Arms Ordinance, so that either the proviso is altogether deleted from there or else the expressions "military stores or ammunition" appearing therein are omitted. In so far as the present state of law is concerned, there is no option but to agree with the view of learned District Magistrate. The accused has been convicted under clause (b) of section 16 of Arms Ordinance. And thus the trial Magistrate was required to award him under the proviso the sentence of one year's R. I. In this view, this reference is allowed. And consequently the judgment of trial Magistrate, in so far as the sentence part is concerned is modified so that the accused would now serve the sentence of one year's R. I. The learned counsel for accused, however, argued that his client is not previous convict and therefore he may be released on probation under the provisions of Probation of Offenders Ordinance. By a short order of today's date. I had said that while the accused is liable to be sentenced to .one year's R. I., this Court would be unable to entertain this prayer for lack of any evidence in regard to his plea that he was not a previous convict. However, I released the accused on bail with direction that he would be at liberty to file an application before trial Magistrate under the provisions of Probation of Offenders Ordinance. And in case he succeeds to establish his plea, the Magistrate might release him on probation failing which, however, he would have to serve the sentence of one year's R. I. Before signing this order, I would like the Registrar of this Court to send a copy of this order to Law Secretary to Government, N.-W. F. P. for information and necessary action in regard to the desirability of amending section 16 of Arms Ordinance in line with the observations made in the order. S. Q. Order accordingly.