P (PLP)

Abdul Hamid and Tassadaq Hussain Shah, for Petitioner. Muhammad Sharif, Advocate General, for Azad J. & K. Government. JUDGMENT.‑This is an application in revision by one Abdur Rehman Khan who has been convicted by the Additional District Magistrate, Poonch under section 19 of the Arms Act. The order does not mention the clause of section 19 under which the conviction has been made. The facts proved on the record, however indicate that it has been made under section 19 (f) of the Arms Act. The petitioner was sentenced to one year's rigorous imprisonment and Rs. 500 fine by the Additional District Magistrate. On appeal the learned Sessions judge upheld the conviction and reduced the sentence to 3 month's rigorous imprisonment and a fine of Rs.

50. In revision it is contended first that the facts found do not make out the case under the section 19 (f) of the Arms Act under which the petitioner had been convicted and secondly that the sentence is still very serve. The facts found are these:‑-- On 24th October, 1950, the petitioner was found in possession of a Sten‑gun near a Jeep Car in front of the Court room of the District Magistrate, Poonch on the roadside. The petitioner had also some live cartridges in his possession. The petitioner was apprehended by an Assistant Sub‑Inspector of Police who approached him for enquiry as the area where the petitioner was standing had been proclaimed under section 144 Criminal Procedure Code as prohibited area and no body could carry arms there. The petitioner told the Assistant Sub‑Inspector that the gun in question had been handed over to him by Sardar Muham mad Ibrahim Khan, Ex‑President, along with the cartridges for guarding the Jeep Car belonging to him and he did not know whether Sardar Muhammad Ibrahim Khan possessed a licence for it or not. The Jeep Car near which the petitioner was found standing had brought Sardar Muhammad Ibrahim Khan to Palan dari just before the petitioner was apprehended. According to the licence produced before the Sessions Judge, the Sten‑gun ‑belonged to Sardar Muhammad Ibrahim Khan, Ex‑President though the licence had been issued by the Pakistan Government and not by the Azad Kashmir Government. It has been urged on behalf of the petitioner that the possession of the gun was a temporary one and was one which was not contemplated by law. Reliance is placed in that respect on A. I. R. 1941 Pat.

209. In this case the licence for a gun stood in the name of K. K one morning had gone out, for shooting and Y who was his close friend had accompanied him. They returned in the evening and K left his gun in the house of Y with intention of returning shortly to take it. It was not alleged that Y had used the gun in any manner. On these facts it was held that the possession of the gun must be deemed to have remained with K though it was not actually in his physical possession and if Y had been possessing it at all then at most the possession of Y was on behalf of K. Hence Y cannot be convicted under section 19 (f). All that was ruled in the afore‑mentioned case was that the mere temporary possession without a licence of arms for purposes other than their use was not an offence with in the meaning of section 19 Arms Act. On the facts the case before me is clearly distinguishable from the case referred to by the learned Counsel for the petitioner. In this case the petitioner intended to use the gun if anybody interfered with his guarding the Jeep Car. The possession of the Sten‑gun by the petitioner in the circumstances cannot be deemed to be a possession on behalf of Sardar Muhammad Ibrahim Khan because the latter had not given the Sten‑gun to the petitioner for temporary custody. Besides Sardar Muhammad Ibrahim Khan had no licence for the Azad Kashmir Government. It is true that the petitioner had no knowledge that Sardar Muhammad Ibrahim Khan was carrying the Sten‑gun without obtaining licence from the Azad Kashmir Government, but he cannot escape liability on that ground by saying that the Sten‑gun had been handed over to him temporarily by Sardar Muhammad Ibrahim Khan. In my opinion there is no escaping from, the clear words of the section: "Has in his possession or under his‑ control an arm ......... .........in contravention of the provisions ." I think on the whole that the conviction is right. As regards the sentence it does appear to me that it is still excessive. I, therefore, reduce it to the terms of the imprison ment already undergone and remit the fine imposed on the petitioner as the Sten‑gun has been forfeited. He is also discharged from bail bond. The petition in revision is accepted to this extent. Before concluding I might remark that neither the Additional District Magistrate nor the learned Sessions Jude appear to have studied Section 19 of the Arms Act before convicting the petitioner as its clause was not specified. The section 19 is a comprehensive one and before making conviction under it the clause under which the offence falls should be carefully noted. The trial in this case was held in the premises of Jail and this could be done only under a notification issued by the Government to that effect. The explanation of the Additional District Magistrate that the trial was held within the boundaries of the Jail under the orders of the District Magistrate is not reasonable. Any how this irre gularity in trial does not vitiate it and I condone it. But the learned Additional District Magistrate is directed to be careful in future not to hold any trial at a place at which it is prohibited by law simply because the District Magistrate directs him to do so. H. M. A./A. H. Sentence reduced.