P L D 1963 (W (PLP)

ANWARUL HAQ, J.

‑This is an appeal by the State against the acquittal of the respondent Amir Khan of a charge under section 19 of the Arms Act. On 2nd March 1962, in Bazar Qissakhwani of Peshawar City, the respondent was found to be in possession of a clasp‑knife with a blade 4 inches in length, without a licence. At the trial, he admitted his possession, but took up the plea that he was a kabari selling clothes and knives. The learned trial Magistrate Mr. Amir Muhammad Khan, observed that "the knife in question has not been used as a weapon of offence. The knives are not covered by licences because licence has never been granted for the possession of a knife. Such knives are very commonly sold in Bazar . . . . . As the accused is running kabari shop and is also dealing in the sale of knives, as his statement shows, and such knives are always prepared by black‑smiths of this area, and there is no ban on such prepara tion and sale, the accused, therefore, is not guilty under section 19, Arms Act . . . . ."

2. It is contended by the learned Additional Advocate- General that by means of Notification No. 5/5/50‑H. S. P. I‑57, dated the 6th of May 1958, the Governor of West Pakistan has retained all the prohibitions and directions contained in the Arms Act, 1878, in respect of daggers and knives with blades exceeding four inches in length (other than a knife used in the kitchen and a butchers' knife) in the Divisions of Peshawar, Dera Tsmail Khan, Khairpur and Hyderabad, excluding the Districts of Campbellpur, Mianwali and Khairpur, with the result that knife with a blade exceeding four inches in length cannot be kept in possession without a licence.

3. The notification relied upon by the learned Additional Advocate‑General has been issued by the Governor of West Pakistan in exercise of the powers conferred by the proviso in column 3 of item 1 of Schedule II to the Arms Rulps, 1924, read with the Government of Pakistan, Miristry of the Interior, Home Division, Notifications, Nos. 5/12/11‑Police, dated the 16th of March 1951, and 5/7/54/Police, dated the 8th of April 1954. Schedule II to the Arms Rules, 1924, has reference to Rule 3 thereof, and the opening words of the Schedule are as follows :‑‑ Within the areas specified in the first‑ column of the subjoined table the arms, ammunition and military stores described in the second column are excluded from the operation of such prohibitions and directions contained in the Act as are indicated in the third column. It will be seen, therefore, that this Schedule primarily deals with exemptions granted by the Central Government with respect to certain arms and ammunition etc., when possessed or carried in the territories specified in the first column. However the privso in the third column lays down "the Local Government may, by notification in the local Official Gazette, retain all or any of the prohibitions and directions contained in the Act in respect of any areas in the case of any class of persons or of any specified area". In other words, the position is that although Schedule II to the Arms Rules, 1924, contains certain exceptions from the prohibitions and directions mentioned in the Arms Act, the power is given to the Provincial Government to retain all or any of the prohibitions and directions contained in the Act, notwithstanding the exemptions mentioned in the Schedule.

4. We find that the exercise of this power by the Provincial Government is not dependent on any further notification by the Central Government, as the power is conferred by the Arms Rules, 1924, which have been framed by the Central Government under sections 4, 10, 17 and 27 of the Arms Act, 1878. Incident ally, it may be remarked that section 4 of the Arms Act does not appear to us to be relevant for the framing of rules as it is only an interpretation clause and need not have been mentioned in the preamble to the Rules. However, the point we wish to make is that the reference in the Provincial Government's Notification of the 6th of May 1958 to the two Notifications of the Government of Pakistan, Ministry of Interior, issued on the 16th of March 1951, and the 8th of April 1954, was unnecessary, as the power exercised in the Notification of the 6th of May 1958 in respect of daggers and knives with blades exceeding four inches in length, was one derived from the proviso in column 3 of item 1 of Schedule II to the Arms Rules. If that were not so, we would have to hold that the Provincial Government's Notification of the 6th of May 1958, was invalid for the reason that the delegations made to the Provincial Government in the two Notifications of the Government of Pakistan, issued on the 16th of March 1951, and the 8th of April 1954, expired on the 1st of April 1957, when the period of six years mentioned in the Notification of the 8tb .of April 1951, as indicated in the earlier Notification of the 16th of March 1951. As we have already said that the power which the Provincial Government has exercised is not dependent on these two Notifications of the Central Government, it is not necessary to pursue this point any further, and we proceed to consider the effect of the Provincial Government's Notification of the 6th of May 1958, on which reliance has been placed on behalf of the State.

5. The proviso which has been invoked by the Provincial Government clearly contemplates that the Local Government ma retain all or any of the prohibitions and directions contained in the Act. In other words, the power vesting in the Provincial Government is not to introduce any new prohibitions, but to retain all or any of the prohibitions and directions which are already contained in the Arms Act of 1878. Now, let us see what are the prohibitions and directions contained in the Arms Act with regard to knives with blades exceeding four inches in length i.e., in respect of the category in which the knife recovered from the respondent falls. The learned Additional Advocate‑General could not point out to us any specific provision in the Arms Act dealing with knives. He, however, referred us to section 15 of the Arms Act, which lays down the requirement that in certain speci fied areas, in which Peshawar City is included, "no person shall have in his possession any arms of any description, except under a licence and in the manner and to the extent permitted thereby". It is clear that in order to attract the provisions of section 15, it has first to be shown that the article for the possession of which the licence is being required falls within the definition of the word "arms'.' as contained in the Arms Act. The word "arms" is defined in section 4 of the Act as "including fire‑arms, bayonets, swords daggers, spears, spearheads and bows and arrows, also cannon and parts of arms, and machinery for manufacturing arms". Knives as such are not mentioned in this definition, nor does the defini tion contemplate that the Central or the Provincial Government may, at their discretion, declare any article to be an arm. As the definition of the word "arms" stands in the Arms Act, 1878, we think that ;it does not confer any power on the Provincial or the Central Government to specify that a knife with a blade exceeding four inches in length must be deemed to bean arm. That being so, the Provincial Government has no power to declare that all the prohibitions and directions contained in the Arms Act of 187 shall apply to all knives with blades exceeding four inches in length. The restrictions, prohibitions and directions contained in the Act can apply to knives only if they fall within the defini tion of the term "arms".

6. It follows, therefore, that in the case of knives the requirement of a licence for their possession cannot be arbitrarily imposed by the Provincial Government simply on the basis of the length of their blades. ‑The length of the blades of knives pre‑ t; scribed‑ in the Notification of the 6th of May 1958 may be a rough and ready guide for the police officers or other agencies charged with the prevention of crime, but by itself it is not enough to convert a‑ knife into an arm as defined in the Arms Act. It will, therefore, be necessary in each case for the Court to come to a decision whether the knife, which is the subject‑matter of pro secution, does fall within the category of arms or not, before the possessor thereof can be convicted under section 19 (f) of the Arms Act for possessing the knife in question without a licence.

7. As we have held that the mere fact that a knife has a blade exceeding four inches in length cannot convert it into an arm, as defined in the Arms Act of 1878, we proceed to examine whether the knife recovered in the present case can be regarded as an arm, and, therefore, requiring a licence for its possession.

8. The question as to when a knife should be considered to be falling within the definition of the word "arms" was examin ed by one of us (Anwarul‑Haq, J. in the case of Shah Din v. The State (P L D 1961 Lah. 704)) and we feel that the conclusion reached .in that case may be profitably reproduced here The definition of "arms" given in section 4 of the Arms' Act, 1878, is not exhaustive, and whatever can be used as an instrument of attack and defence and is not an ordinary imple ment for domestic purposes, falls within the‑purview of the Act. The purpose for which an implement is primarily intended determines whether it should be deemed to be arms. It cannot be laid down as a hard and fast rule that no clasp knife would fall within the meaning of the word "arms." The determination of this question would depend on the circumstances of the case and not only the shape of the weapon or the size of its, blade. If the weapon is obviously and primarily designed as an instru ment for domestic use, then it would normally fall outside the definition of arms, but if it is such that it cannot be described as an instrument of ordinary daily domestic use, and is, on the other hand capable of being employed as a weapon of offence and defence, it should then be regarded as falling within the definition of arms. And if in a particular case, it is in fact so employed, then it undoubtedly would fall within the definition of arms.

9. Applying the test laid down in the above citation, we find that the knife recovered in the present instance must be regarded as an arm. Our examination of this knife clearly shows that not only it has a blade 41J" in length, but it is obviously and primarily t designed for being employed as a weapon of offence and defence. One look at the knife in question is enough to show that it was not manufactured for any domestic use. On this view of the matter, we hold that the knife recovered from the respondent required a licence for its possession. On this view he is clearly guilty under section 19 (f) of the Arms Act, as he did not possess a licence.

10. The assertion of the respondent that he is a kabari and sells these knives does not, in any way, affect the issue. Once it is held that the knife in question is an arm, it cannot be possessed without a license, for the reason that the Provincial Governor has retained all the prohibitions and directions contained in the Arms Act in respect of arms, in so far as the Peshawar Division is concerned. Similarly, the observations of the learned trial Magistrate that knives of this kind are being freely manufactured and sold, does not affect the legal position. We agree that it may be desirable to impose restrictions on the manufacture and sale of these knives, but that is a matter for the Government to decide.

11. However, the fact that knives of this kind are being freely manufactured and sold in the open market, and that it is possible that the respondent came into possession of this knife in the ordinary course of his business as a kabari are circumstances which call for a lenient sentence in this case. We consider that a fine would meet the ends of justice.

12. For the reasons given above, we accept this appeal, set aside the acquittal of the respondent, convict him under section 19 (f) of the Arms Act and sentence him to pay a fine of Rs. 50 only or in default to undergo rigorous imprisonment for one month.

13. A short order to the above effect was announced by us on the 1st of March 1963, and the present judgment is intended to give reasons for that order. K. B. A. Appeal accepted.