P L D 1965 (W (PLP)

(a) Arms Act (XI of 1878), Ss. 19 (f) & 29 read with Arms Act (XXXI of 1860), S. 32‑Clause (2) of S. 32, Arms Act, 1860 operative only if order of disarmament duly published under. cl. (1) of drat section or a general .search for arms under S. 24, Arms Act, 1857 had been ordered in locality‑Prosecution for offence under S. 19(f). Arms Act, 1878 years after coming into force of Act‑Establishing sanction, in terms of S. 29, Arms Act, 1878, to be not necessary --Prosecution to prove that cl. (2) of S. 32 Arms Act, 1860 applied in District or place where offence alleged committed‑Punjab Gazelle Notification No. 533 dated 1‑9‑1860‑Constitution‑--Phrase "as hereto before" fit para. 2 of Notification‑--Indicates that fit Punjab, order of general search for arms had already been made under S. 24 of Arms Act, 1857--‑Notification can be relied upon: without any further proof to show that provisions of .S. 32 (2), Arms Act, 1860 applied in Districts of Layallpur and Jhang (parts of former Punjab)‑Evidence Act (I of 1872), S. 3‑Arms Act (XXVIII of 1857), S. 24‑--Arms Act (XXXI of 1860), Ss. 25 &

26. The Government of Bombay v. Dodya `Ma Ri Basa `Pa' I L R 9 Bom. 478; Amir Ahmad v. Emperor A I R 1926 All. 143; Abdul Mujeed v. The State P L D 1958 Kar. 473 and Sunder Singh v. Emperor 274 P L R 1914 distinguished. Government. Advocate, North. West Frontier Province v. Fazal. Rahim Haider A 1 R 1933 Pesh. 69 ref. (b) Evidence Act (I of 1872), S. 3‑

"Proved"‑

Test. Emperor v. Ram Dat A I R 1933 Oudh 340 ref. (c) Arms Act (XI of 1878), Ss. 14, 15 & 19(f)--‑Scope of Ss. 14 & 15‑Person found in possession of weapon not falling within category of arms enumerated in S. 14 and in district to which S. 32 (2), Arms Act, 1860 did not apply‑Cannot be convicted under S. 19(f ) Arms Act,, 1878‑Arms Act (XXXI of 1860), S. 32 (2). (d) Arms Act (XI of 1878), S. 29‑

Province, District or place to which S. 32, clause (2) of Act XXXI of 1860 applies" and those "not being such a District, Province or place"‑--Distinction created between two classes of Provinces, Districts etc. whether should continue‑--Question to be determined by Legislature. M. Aslam Riaz Hussain, A. A. G. for the State. JUDGMENT J. ORTCHESON, J.‑

The facts leading up to this reference are that a Criminal Revision, No. 1299 of 1961, from an order of the learned Additional Sessions Judge, Lyallpur at Jhang, dismissing the appeal of one Shahadat against his conviction under section 19 (f) of the Arms Act, came up for hearing before our learned brother A. R. Changez. It was, inter alia, urged before him that the conviction of the petitioner was illegal in consequence of the failure of the State to obtain the sanction of the District Magistrate for his prosecution. This argument was based on section 29 of the Arms Act (XI of 1878) (hereinafter referred to as the Act), which runs:‑ "Where an offence punishable under section 19, clause (f) has been committed within three months from the date on which this Act comes into force in any Province, district or place to which section 32, clause 2 of Act XXXI of 1860 applies at such date, or where such an offence has been committed in any part of Pakistan not being such a district, Province or place, no proceedings shall be instituted against any person in respect of such offence without the previous sanction of the Magistrate of the district."

2. Dealing with the above contention, our learned brother pointed out that the necessity for sanction depends on whether section 32, clause 2 of the former Arms Act (XXXI of 1860) was in force in District Jhang when the Act came into operation. Clauses 1 and 2 of the said section run as under:‑ Clause I.

"It shall be lawful for the Governor‑General of India‑in‑Council or for the Executive Government of any Presidency or for any Lieutenant Governor, or with the sanction of the Governor‑General‑in‑Council for the Chief Commissioner or Commissioner of any Province, district, or place subject to their administration respectively, whenever it shall appear necessary for the public safety, to order that any Province, district, or place shall be disarmed." Clause 2.

"In every such Province, district, or place as well as in any Province, district, or place in which an order for a general search for arms has been issued and is still in operation under Act XXVIII of 1857, it shall not be lawful for any person to have in his possession any arms of the description mentioned in section 6 of this Act, or any percussion caps sulphur, gunpowder, or other ammunition without a license." Our learned brother pointed out that clause 2 of section 32 of Act XXXI of 1860 would apply only if either an order of disarmament had been duly published under clause 1 or a general search for arms had been ordered in the district.

3. In the course of arguments before our learned brother the learned Advocate‑General confessed his inability to find any order of either of the above descriptions, but placed reliance on several Punjab Gazette Notifications; including No. 533, dated the 1st of September 1860, which runs:‑ "It is hereby notified, for general information, that Act XXXI of 1860, hereunto appended, will have effect in the Punjab from the 1st day of October 1860. In the exercise of the power vested in his Honour by section 27, the Lieutenant Governor is pleased to exempt, as heretofore, from the provisions of sections 25, 26 and 32, all Europeans and Anglo‑Indian British subjects. Also, as heretofore, the Chiefs under-mentioned, or their sons, or confidential officers specially deputed by them to the Local Government, together with their immediate bodyguards:‑ The Lieutenant Governor is further pleased to exempt, as heretofore, from the provisions of section 32, the under-mentioned district Peshawar. Hazara. Kohat. Dera Ismail Khan. Dera Ghazi Khan Kangra. Our learned brother concluded his order by observing: "From this he wants me to conclude that in fact an order under clause 1 for disarmament had been passed by the Lieutenant Governor of Punjab. A similar question arose in The Government of Bombay v. Dodya `Ma Bi Ba,a `Pa I L R 9 Bom.

478. In that case also the orders passed under clause 1 or 2 of section 32 of Act XXXI of 1860, were not produced before the Court and reliance was placed on a notification, declaring that the provisions of Act XXXI of 1860 were in force in certain specified places and districts. The learned Judges of the Bombay High Court came to the conclusion that section 32, clause 2 of Act XXXI of 1860, did not apply to the taluka Badami at the time when the Arms Act of 1878 came into force. As the point is not free from difficulty and its of general importance, I am of the opinion that, the matter may be referred to a larger Bench. The case may, therefore, be placed before my Lord the Chief Justice to constitute a larger Bench for deciding the question raised in this revision petition." A number of other petitions, namely, Nos. 3, 684, 870 and 871 of 1963 and Nos. 116, 378, 379, 423, 460, 466, 467 and 468 of 1964, were subsequently ordered to be heard along with that leading to the reference.

4. It may be mentioned that in the last four of the above petitions a somewhat different point arises. The present district of Layallpur was, in the year 1904, carved out of District Jhang, and it was urged before my learned brother Jamil Asghar that with the creation of the new district any notification or other order relating to District Jhang automatically ceased to have operation within the territory out of which District Layallpur had been formed; that in the absence of any fresh notification or order the sanction of the District Magistrate, Layallpur, became a prerequisite for a prosecution under the Arms Act; and that as no such notification or order had been passed, the prosecution of the petitioners was illegal.

5. The relevant provision of section 19 of the Act, under which the various petitioners have been convicted, runs: "Whoever commits any of the following offences (namely): (f) has in his possession or under his control any arms, ammunition or military stores in contravention of the provisions of section 14 or section 15 shall be punished with imprisonment for a term which may extend to three years, or with fine, or with both." Section 14 provides that no person shall have in his possession or under his control any cannon or firearms or any ammunition or military stores, except under a licence and in the manner and to the extent permitted thereby. Section 15 runs; "In any place to which section 32, clause 2, of Act No. XXXI of 1860, applies at the time this Act comes into force or to which the Central Government may by notification in the official Gazette specially extend this section, 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."

6. Before us, as before our learned brother A. R. Changez, no order of disarmament or for a general search for arms ha been produced. The question, therefore, resolves itself into that of whether the notifications produced before our learned brother and before us can be accepted as proof that section 32, clause 2 of Act XXXI of 1860, was applicable in the districts concerned (it is not contended that the Central Government issued any special notification).

7. Of the authorities cited before us, three, namely, The Government of Bombay v. Dody `Ama Bi Basa Pa' (I L R 9 Bom. 478) Andr Ahmad v. Emperor (A I R 1926 All. 143) and Abdul Majeed v. The State (P L D 1958 Kar. 473) throw no light on the question with which we are confronted. In Abdul Majeed's case the sanction of the District Magistrate had been obtained for the prosecution of the accused, but was found to be invalid. That case is therefore entirely irrelevant. In Dody Ama's case the only notification produced in support of the contention that section 30, clause 2, of Act XXXI of 1860 was in force in the territory concerned at the material time was one declaring that the provisions of the said Act as modified by Act VI of 1866 were in force in certain specified places and districts. I very respectfully agree with the observations of the learned Judges that whatever the object or intention of the above notification may have been, it cannot be construed as an order of disarmament under section 32, clause 1 of Act XXXI of 1860, and that it does not purport to issue the specific order without which the disarmament cannot be effected. It was further held in the same authority that a circular dated the 2nd of August 1857, addressed by the Chief Secretary to the Government of Bombay to the Magistrate of Belgaum, conveying certain discretionary powers to disarm, could not be regarded as an order for a general search for arms under section 24 of Act XXVIII of 1857, the said Act not having been passed until more than a month after the circular was issued. In the case before us on the other hand, notifications were issued stating that section 32 of Act XXXI of 1860 had been applied before the present Act came into force, and the question for decision is that of the probative value of those notifications.

8. Amir Ahmad's case is also not on all fours, but for a different reason, namely, that in that case a notification issued in the year 1858 was produced, which not only extended the provisions of sections 1, 2 and 5 of Act XXVIII of 1857 to the whole of the then North‑West Provinces, but also authorised a general search for, and seizure of arms in those parts of the Province which lay to the north of the rivers Jumna and Ganges. The fact that a general search for arms had been ordered was thus proved by the production of the order itself.

9. The remaining two authorities cited are, however, in point. The first in Sunder Singh v. Emperor (274 P L R 1914). In that case the petitioner was convicted for an offence under section 19 (f) of the Act committed in the Karnal District. The contention that the sanction of the District Magistrate was necessary was repelled on the ground that as the offence had been committed many years after the Act came into force, there was no necessity for sanction, even though the provisions of section .32 of Act XXXI of 1860 as modified by Act VI of 1866 were in force in the greater part of the then Punjab, including the Karnal District. The important point for the purposes of the present case is that the fact that section 32 of Act XXXI of 1860 was in force in the Karnal District was by implication, held to be established by the production of Punjab Government Home Department Notification No. 826 of the 26th of February 1875 (one of the notifications produced before us), no other evidence of the existence of an order for a general search for arms being referred to in the judgment.

10. The other authority cited is Government Advocate, North‑West Frontier Province v. Fazal Rahim Haider (A I R 1933 Pesh. 69). In that case an appeal was preferred by Government against the acquittal of a person convicted under section 19 (f) of the Act for the unlicensed possession of certain arms, the acquittal being based on the absence of the District Magistrate's previous sanction required by section 29 of the Act. After citing the provisions of section 29, the learned Judges observed:‑ "The section was obviously introduced into the Act by way of a safeguard against indiscriminate prosecutions. Its effect is to make the previous sanction of the District Magistrate necessary in all districts in British India except in those in which clause (2) of section 32 of Act XXXI of 1860 applied in 1878, and even in the latter districts the sanction was necessary for three months after the introduction of the Act. If, therefore, previous sanction for the Frontier Districts is not necessary, it has to be shown that clause (2) of section 32 of the 1860 Act applied to these districts in 1878. The general effect of the application of section 32 of the 1860 Act was to disarm the district to which it was applied. The Punjab generally was disarmed under the provisions of the Arms Act of 1860, but as appears from the Punjab Government Notification No. 2069, dated 16th May 1878, the districts which now constitute the present Frontier Province were not disarmed, except three small villages in the Peshawar District. Clause (2), section 32 of the 1860 Act, however, relates to two classes of districts, those which had been disarmed under clause (1); of that section and those where an order for a general search for arms had been issued and was still in operation under the previous Act (XXVIII of 1857)." It is true that the respondent in the above case was acquitted in consequence of the failure of the Government Advocate to produce any order authorising a general search for, and seizure of arms, but, as already stated, the noteworthy point is that Punjab Government Notification No. 2069, dated the 18th of May 1878, was accepted as showing that the districts which later constituted the North‑West Frontier Province were not disarmed.

11. In both the above authorities, therefore, the relevant notifications were considered as proving, in the one case that most of the former Punjab districts had been disarmed, and in the other, that the North‑West Frontier districts had not.

12. Of the notifications produced before us the most important are No. 533 of 1860 of the 1st of September 1860 (referred to by our learned brother Changez), No. 826 of the 26th of February 1875, and No. 2069 dated the 16th of May 1878, all issued by the former Punjab Government. (The last‑mentioned is the one referred to in the Fazal Rahim Haider's case, above cited). No. 836 of the 25th of February 1875 first notified for general information that the general provisions of Act XXXI of 1860 as modified by Act VI of 1866 bad effect in the districts under the Punjab Government, but went on to state in paragraph 2:‑ "In the following districts the provisions of section 32 (prohibiting the possession of arms and ammunition without a license) are in force, except in regard to certain classes and persons specially exempted, as hereinafter detailed." Paragraph 3 then detailed the districts in which the provisions of section 32 were not in force. The remaining notification, No. 2069 of the, 16th of May 1878, is in the same terms, the only difference being that the list of classes and persons specially exempted from the provisions of the section was augmented by the addition of the name of one Noor Muhammad, Zamindar arid Lambardar of Naraullah in the Delhi District.

13. The first point to be borne in mind with respect to Notification No. 533 of the 1st of September 1860 (reproduced in paragraph 3 above) is that it was not issued under Act XXXI of 1860, being, on the contrary, in the nature of an advance intimation that the said Act was to be applied from the 1st of October 1860. Reference may be made in this connection to section 1 of Act XXXI of 1860, which runs:‑ "Act XXVIII of 1857 shall continue in force until the 1st day of October 1860." As Act XXXI of 1860 received the assent of the Governor‑General on the 17th July 1860, a period of some two and a half months was thus allowed before the Act came into force. It, therefore, follows that the words "the Lieutenant Governor is pleased to exempt, as heretofore, from the provisions of sections 25, 26 and 32 * * * * * * * * * * *" cannot refer to an exemption granted after the coming into force of Act XXXI of 1860. Section 24 of Act XXVIII of 1857 authorised the Governor‑General‑of‑India‑in‑Council and other specified authorities, to order a general search for arms in any district or place specified in such order. Clause 2 of section 32 of Act XXXI of 1860, reproduced in paragraph 2 above, relates to those Provinces, districts or places in which either a general order for disarmament or an order for a general search for arms had been issued and was still in operation under Act XXVIII of 1857. The proper construction of the notification under consideration' therefore, is that a general search for arms had been issued under the latter Act; that such order was still in operation on the date of the notification; that certain persons and categories of persons had been exempted by the Lieutenant Governor from the operation of that order; and that the exemption was to continue after the coming into force of Act XXXI of 1860.

14. The next notification, No. 826 of the 25th of February 1875, was issued after the enforcement of Act XXXI of 1860 and states that the provisions of section 32 of that Act were in force' in the districts detailed in the notification. Notification No. 826, therefore, by implication refers back to notification No. 533, but there is an important point of distinction between the latter and the notification referred to in Dody `Ama's case, which merely stated in general terms that the provisions of Act XXXI of 1860 as modified by Act VI of 1866 were in force in certain specified places and districts. Notification No. 533 grants an advance exemption to certain persons or categories of persons from the provisions of section 32 of the 1860 Act, and the reference to a previous exemption would, as already pointed out, be meaningless unless a general search for arms had been o made under section 24 of Act XXVIII of 1857. If, therefore, the contents of Notification No. 533 are accepted as correct, the condition necessary for the application of section 32 of the 1860 Act had been fulfilled.

15. As already stated, the provisions of Notification No. 2069, dated the 16th of May 1878, are in all essential particulars identical with those of Notification No. 826 of 1875. It is to my mind significant that Notification No. 2069 was issued only two months after the coming into force of the present Act, which became law on the 15th of March 1878. Before applying section 15 of the Act it was apparently considered expedient to intimate to the public the names of those districts to which section 32, clause 2 of Act XXXI of 1860, was applicable, and such intimation was given by the above notification.

16. The next question for determination is whether the notifications referred to above can be accepted, without further proof, as showing that the provisions of section 32, clause 2 of the 1860 Act were in force in the districts concerned. In considering this matter, an important point to be noted is that whereas clause 5 of the said section required that an order for disarmament passed by the Governor‑General‑of‑India‑in‑Council or the Local Government should be published in the appropriate Gazette, no such condition was laid down in respect of orders for a general search for arms. Although, therefore, an order for disarmament, if it existed, could be found by examining the Gazettes for the relevant period, it is a much more difficult task to trace an order for a general search for arms. Learned counsel for the petitioner asserted that all orders, of whatever kind, passed by the authorities enumerated in section 24 of Act XXVIII of 1857 were required to be published in the Gazette, but if this were so, clause 5 of section 32 would have been redundant.

17. Section 3 of the Evidence Act lays down that a fact is said to be proved when, after considering the matter before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. In Emperor v. Ram Dat (A I R 1933 Oudh 340) while discussing the question of what constitutes proof of the guilt of an accused person, the learned Judges observed:‑ "Absolute certainty, amounting to demonstration of guilt, in this work‑a‑day world is seldom to be had in the affairs of life; and we are frequently obliged to act on degrees of probability which fall very short of it indeed. Practical good sense and prudence consist mainly in judging a right whether in each particular case the degree of probability is so high as to justify one in regarding it as a certainty and in acting accordingly. In holding a certain fact or thing as proved all that a Judge need look for is such a high degree of probability that a prudent man, in any other transaction where the consequences of a mistake were equally important, would act on the assumption that the thing was true. Section 3, Evidence Act, defining what facts are said to be proved, is so worded as to provide for two conditions of mind; first, that in which a man feels absolutely certain of a fact, in other words 'believes it to exist', and secondly that in which, though he may not feel absolutely certain of a fact, he thinks it so extremely probable that a prudent man would, under the circumstances, act on the assumption of its existence." Applying the above criterion to the facts of the present case, I am of the opinion that in the conduct of his ordinary affairs any prudent man, faced with the question of whether section 32 (2) of Act XXXI of 1860, was in force in particular district, would undoubtedly act on the assumption that what is stated in the notifications above discussed is correct. In my opinion, therefore, the notifications can be accepted as proof of the fact that the provisions of section 32 (2) of Act XXXI of 1860 were in force at the relevant time, and there is no suggestion that the notification were ever cancelled.

18. The answer to the point raised in Petitions Nos. 460 and 466 to 468 of 1964 also, in my opinion, presents no difficulty. Although a new District of Lyallpur was created in. the year 1901, that district was carved out of District Jhang, and since the provisions of section 32 (2) of Act XXXI of 1860 were in force to the whole of the latter district, a subsequent re‑apportionment of territory would not affect the operation of the section, which must accordingly be held to apply to District Lyallpur.

19. One last point remains to be dealt with, namely, the exact scope of section 15 of the Act. Section 19 (f) makes punishable the act of having in one's possession or under one's control any arms, ammunition, or military stores in contravention of the provisions of section 14 or section

15. Sections 14 and 15 must, therefore, be read together. Their provisions have been reproduced in paragraph 5 above. It will be noted that whereas, by virtue of section 14, a licence is required for the possession by any person throughout Pakistan of cannon, find‑arms, or any ammunition, or military stores, the operation of section 15 is limited to those districts in which section 32, clause 2 of Act No. XXXI of 1860 is applicable, A plain reading of the two sections, therefore, leads irresistibly to the conclusion that it is only in the districts to which section 32 (2) of the 1860 Act applies that a licence is required for the possession of those categories of arms which do not fall within the scope of section

14. The point may be illustrated thus: a person is found in possession of a spear in a district to which the provisions of section 32, clause 2 of Act XXXI of 1860 were never applied. What offence has he committed? He has, ex hypothesi, not contravened section 15, while section 14 only makes it obligatory to take out a licence for a limited category of arms, within which a spear does not fall. He therefore cannot be prosecuted under section 19 (f) of the Act.

20. The further question of whether, in the second half of the twentieth century, a distinction created in the year 1878 between two classes of district and based upon condition I prevailing in 1860 should continue is one for the Legislature to determine.

21. My answer to the reference would, therefore, be as given above. M. JAMIL ASGHAR, J.‑I agree. K. B. A. Reference answered.