P L D 1965 (W (PLP)

Date of hearing: 7th March 1963. This petition has been filed under section 439, Cr. P. C. by Rahmat alias Rahman, son of Allah Ditta, resident of village Rokhe, within the limits of Police Station Naushera Virkan in District Gujranwala, who was convicted by Mr. S. M. Hamdani, Resident Magistrate 1st Class, Hafizabad, of an offence punishable under section 20 of the Arms Act and sentenced to suffer rigorous imprisonment for one year, and whose appeal against his conviction and sentence was dismissed by Mr. Muhammad Saleem, Sessions Judge, Gujranwala.

2. According to the prosecution the petitioner, while he was being interrogated in connection with the investigation of some other cases, revealed that he had concealed a rifle and some cartridges at a certain spot and offered to lead a police party there and get them recovered. On getting this information from him, Sub‑Inspector Muhammad Yakub of the C. I. A. arranged for a police party. Accordingly, the petitioner led Sub‑Inspector Muhammad Yaqub, Sub‑Inspector Meraj Din, Nur Muhammad, Lambardar and Muhammad Buta to the Spot where he had, according to his version, concealed the rifle and the cartridge in question. On his arrival there he dug out the said rifle and the cartridges and handed them over to Sub‑Inspector Muhammad Yaqub, who secured them in the presence of N Muhammad, Lambardar and Muhammad Buta.

3. The petitioner in course of his defence stated to the effect that he had been falsely implicated in this case by Sub‑Inspector Muhammad Yaqub, who was his enemy, and it was he who had got him involved by Nur Muhammad, Meraj Din. and Muhammad Buta in the recovery of the rifle and the cartridges in question. His defence was, however, disbelieved and he was convicted and sentenced as already indicated.

4. It is contended by the learned counsel for the petitioner that there is no satisfactory evidence in this case to show that the rifle and the cartridges in question were actually recovered at the instance of the petitioner. This contention is obviously untenable. Both the lower Courts have relied on the evidence of Sub‑Inspector Meraj Din, Lambardar Nur Muhammad and discarded that of Muhammad Buta, who appeared to be an unreliable witness. There is nothing to show that Sub‑Inspector Meraj Din had any particular grudge or ill‑feeling against the petitioner and on that account he himself had implicated him falsely in this case and persuaded Nur Muhammad to do so at the same time. In any case, the findings of the lower Courts on this point could not possibly be challenged as perverse.

5. It is further contended by the learned counsel for the petitioner that even if it is believed that the rifle and the cartridges m question were recovered at his instance, the petitioner could not be said to have been found in possession of the same. In this connection he has relied on Gian Chand v. Emperor (146 I C 232) and Mansur Khan v. Emperor (A I R 1943 Pesh. 20). In Gian Chand v. Emperor, according to the prosecution, in course of a search a revolver was recovered at his instance ' from a cattle‑shed which was near the house of the accused and was open and accessible to outsiders. In view of this position it was held therein:‑ "Although it was the accused who led the, Police to the shed and pointed out the place where the revolve was lying, yet the mere knowledge of the fact that the revolver was lying in the shed or the pointing out of the place from which it was actually found, without proof that that place was in the exclusive posses sion of the accused, is not sufficient to bring home the offence to the accused and that he was not guilty under section 19 (f), Arms Act." In Mansur Khan v. Emperor the house of the accused consisted of several kothas which were occupied by him, his sons and tenants, and unlicensed arms were found in a vacant kotha. In view of this position it was held: "A man may possess several houses in the sense that they are his property but he would not be responsible for arms found in one of them unless and until it is established that he occupied that particular house." In view of these rulings I agree with the learned counsel that the petitioner could not have been convicted even of an offence punishable under section 19(f). of the Arms Act in this case.

6. It is further contended by the learned counsel for the petitioner that he could not in this case be legally convicted of an offence punishable under section 20 of the Arms Act even if it is held that the rifle and the cartridges in question were recovered at his instance as alleged by the prosecution. In this connection he has first of all referred to Ibrahim v. Emperor (14 CLJ 41). In this case it was held on the strength of the rulings given in Crown v. Azu (9 C L J 259) and Ahmed Hossein v. Queen‑Empress (A I R 1927 Cal. 692) that‑ "Section 20 directly applies only to cases where the import, or export of arms is attempted. This appears to me a reasonable conclusion. There is otherwise no possibility of distinguishing ordinary cases of concealed arms under section 19 and of providing that the special intention was to conceal from the Police." Another case to which a reference has been made by the learned counsel for the petitioner in this case is Channan Singh v. The Crown (I L R 6 Lah. 151). The view taken in this case was that "something more than a mere ordinary concealment should be established in order to bring the illegal possession of the arms within the meaning of section 20 of the Arms Act." These rulings, no doubt, support the contention of the learned counsel for the petitioner.

7. I, therefore, allow this revision petition and acquit the petitioner, setting aside his conviction and sentence. The petitioner should, therefore, be set at liberty if not required to be detained in connection with any other case. K. B. A. Petition accepted.