1992 P Cr (PLP)

MUHAMMAD MUNIR KHAN, J.‑‑‑ This Criminal Appeal No.352 of 1990 arises from the judgment of Presiding . Officer, Special Court (Suplkession of Terrorist Activities), Lahore, whereby he on 26‑5‑1990 convicted Sabir Ali appellant under section 13 of the Arms Ordinance, 1965, and sentenced him to four years' R.I. and a fine of Rs.25,000 or in default thereof six months' R.I.

2. The charge against the appellant was of keeping unlicensed Klashnikov P.1, magazine P.2, ten bullets P.3/1‑10 and twenty bullets P.5/1‑20 on 26‑4‑1991. He denied the charge and claimed to be tried.

3. To prove its case, the prosecution produced three witnesses. P.W.1 is the formal witness. He drafted the F.I.R. Nazir Ahmad Ashfaq P.W.2 and Zafar Iqbal S.I. (P.W.3) are the witnesses of the recovery of the fire‑arm from the appellant. Nazir Ahmad Ashfaq P.W.2 stated that on 26‑4‑1990 when apprehended by the police, the appellant was carrying Klashnikov P.1, magazine P.2, bullets P.3/1‑10 and a bag containing twenty bullets P.5/1‑20, which were taken into possession Vide memo. Exh.P.C. Zafar Iqbal P.W.2 is the Investigating Officer. He had recovered the aforesaid fire‑arm from the appellant and had prepared the recovery memo. Exh.P.C. signed by Nazir Ahmad P.W.2 and Tahir Rashid S.I. (not produced). He has supported the recovery of the fire‑arm from the appellant.

4. When examined under section 342, Cr.P.C. the appellant denied the recovery of the fire‑arm from him. He produced two witnesses in defence.

5. The‑learned counsel for the appellant mainly contended that the prosecution has failed to prove the case punishable under section 13 of the Arms Ordinance, 1965, against the appellant inasmuch as it has nowhere been stated by the prosecution witnesses that the appellant had no licence for keeping the fire‑arm recovered from him. The teamed counsel for the State has frankly admitted that there is no evidence to the effect that the appellant had no licence to keep the fire‑arm.

6. We have considered the submissions made by the learned counsel for the parties‑ with care. On our own examination of the statements of the prosecution witnesses, we find that there is no evidence to the effect that the appellant had no licence to keep the fire‑arm recovered from him or that the fire‑arm recovered from him was unlicensed. The burden lies on the prosecution to prove that not only the fire‑arms were recovered from the possession of the accused/appellant but also that he was not possessing any valid licence to keep the same or that the fire‑arm recovered from him was unlicensed. This being the position, it is not possible to maintain the conviction and sentence of the appellant.

7. Pursuant to the above discussion, the appeal is accepted and the appellant is acquitted of the charge. He shall be released forthwith, if not required to be detained in any other case. H.B.T./S‑28/L ??????????? Appeal accepted.