1993 P Cr (PLP)

HAZIQUL KHAIRI, J.

The appellant Arshad Nadeem was convicted and sentenced for five years' R.I. and fine of Rs.5,000 and in case of default in the payment of fine to undergo further R.I. for six months vide judgment, dated 19-9-1992 passed by the learned Special Judge No.I1 Terrorist Court, Karachi which is impugned in this appeal before us. Briefly stated the facts of the case are that on 18-1-1992 while the appellant was already in police custody in Crime Case No.319/91 under section 20 of Hudood Ordinance, he told the S.H.O. of Police Station Kalakot, Karachi (South) during the interrogation that he had hidden one klashnikov in his father-in-law's house. He led the police party at 11-05 p.m. to his father-in- law's house which consisted besides the appellant, the S.H.O. Maqsood Ahmed, A.S.I. Mukhtar Ahmed, Police Constable Iqbal and Mushir Fazlur Rehman and on his pointation an unlicensed klashnikov alongwith magazine loaded with 25 live rounds was recovered wrapped in a bed. Mashirnama of recovery was prepared at the spot. The S.H.O. took the property and the accused to the Police Station Kalakot and lodged the F.I.R. and recorded his statement under section 161, Cr.P.C. The point requiring examination is whether on the facts and circumstances of the case, the klashnikov was recovered from the possession or control of the appellant so as to attract the provisions of section 13-E of the Arms Ordinance according to which whosoever has "in his possession or under his control any arms, ammunition of military store in contravention of provisions of section 9 shall be punished with imprisonment for a term which may extend to 7 years or with-fine or with both. (Minimum 3 years for klashnikov under the proviso)". Now under section 9 no person shall have in his possession or under his control any arms or any ammunition of military store except under a licence and in the manner to the extent permitted thereby. According to Black Law Dictionary, 6th Edition at page 1163 "the law in general recognises two kinds of possession; actual possession and constructive possession". A person knowingly has a direct possession over a thing at a given time, is then in an actual possession, knowingly has the power and the intention at a given time to exercise domain or control over a thing either directly or through another person or persons, is then in constructive possession of it." The word `control' in the same dictionary at page 329 means "power or authority to manage, direct, superintend, restrict, regulate, govern administer or oversee". The question then is whether the klashnikov wrapped in a bed at the house of the appellant's father-in-law shall be deemed to be under his possession or control. Admittedly the appellant was not living in the house of his father-in-law. No evidence has been brought in order to show that the room from where klashnikov was recovered was under the control or power of the appellant. In order to establish constructive possession or control of the appellant over the klashnikov it was incumbent upon the prosecution to adduce evidence that the appellant was exercising domain and control over it through another person or persons. Such a relationship is not presumed but must arise out of same legal or contractual relationship or emanates from some satisfactory evidence which is not there. We are accordingly of the view that on the basis of available evidence the prosecution has failed to make out a case against the appellant under section 13-E of the Arms Ordinance. These are the reasons of our short order dated 29-4-1993, whereby we had allowed the appeal and set aside the conviction and sentence of the appellant passed by the learned Special Judge II, Suppression of Terrorist Activities, Karachi vide his judgment dated 19-9-1992. N.H.Q./A-1386/K Appeal allowed.