1988 P Cr (PLP)

KHIZAR HAYAT KHAN, J.‑‑Nazar Muhammad son of .Shall Muhammad caste Arain, resident of Jhawarian, district Sargodha, has filed this appeal against the order of Additional Sessions Judge, Sargodha, convicting him under section 16 of West Pakistan Arms Ordinance XX of 1965, and sentencing him to undergo rigorous imprisonment for a period of two years.

2. During the night between 22/23rd January, 1982, at 12‑30 a.m. Muhammad Hayat (P.W.3) lodged a report with Altaf Hussain Shah, Inspector Police (P.W. 6) at Bhalwal Police Station, regarding murder of Zil Muhammad and also produced revolver bearing No.B‑7637 and an inscription "M. Sharif Peshawar" (P1) with live cartridges (Ex.P2 to P5) before him which were allegedly snatched by him from Ashfaq Ahmad accused. The Inspector had seized these articles under memo Ex.PA. About two months later S.1. Asghar Ali (P.W.4) seeing that said revolver was entered on the licence of the appellant, drew up a complaint Ex.PD under section 16 of West Pakistan Arms Ordinance XX of 1965, on 22nd March 1982 and Iftikhar Hussain, Muharrir Head Constable (P.W.5)on its basis registered formal F.I.R. Ex.PD/1, the same day. The appellant was, thus, challaned to Court on the allegation that he had supplied his licensed revolver (Ex.Pl) to Ishfaq Ahmad who allegedly committed murder of Zil Muhammad with the same. The trial was held by learned Additional Sessions Judge, Sargodha.

3. Six P.Ws appeared at the trial in support of the allegations. Nazar Muhammad (P.W.2) is a dealer in Arms. He stated that he had purchased revolver (P1) through cash memo (copy Ex.P.B.) on 25‑1‑1979 and sold it to the appellant on 9th March 1980 vide entry made in his register against serial No. 72, dated 9‑3‑1980 photocopy of which is Ex.PC. It may be mentioned that in his earlier statement, dated 8th January 1984, he gave number of the sale‑entry as

321. He denied the suggestion that he had sold revolver (P6) to the appellant and not (P1). Abdul Rashid (P.W.1) stated that in the year 1980 he was Arms Clerk in the Office ,of Deputy Commissioner, Sargodha. The appellant, according to the record, was issued a licence for possessing a revolver and that he had entered revolver No.B‑7637 'Pak made' .32 bore on the licence of the appellant. Muhammad Hayat (P.W. 3) stated that he had snatched revolver (Pl) with cartridges etc. from Ashfaq Ahmad (accused in murder case) and had produced it before SHO at the police station which was seized under memo Ex.PA. Altaf Hussain, Inspector Police (P.W. 6) also supported him.

4. The appellant when examined under section 342 Cr.P.C. denied the allegation. He explained that revolver (P1) allegedly recovered from Ishfaq Ahmad did not belong to him and that his licensed revolver is Ex.P6 which bears NO.B‑7637. It appears from question No.5 put to the appellant in his statement recorded under section 342 Cr.P.C. that during investigation of murder case the appellant had produced revolver (P6) bearing No.B‑7637 alongwith his licence obviously to prove that revolver was (P.1) was not his. He produced no witness in defence.

5. Learned trial Court considering the material on record observed that revolver (P1) apart from bearing No.B‑7637 also bore words "M.Sharif Peshawar" which was sold by Nazar Muhammad (P.W.2) to the appellant. The trial Court therefore, held that revolver (P6) which bears inscription "M. Sharif Peshawar" is the licensed revolver of the appellant, which had been snatched by Muhammad Hayat (P.W.3) from Ashfaq Ahmad accused of the murder case. Consequently, the appellant was found guilty under section 16 of the West Pakistan Arms Ordinance, XX of 1965, hence this appeal.

6. We have heard learned counsel for the appellant and also for the State and perused the record as well.

7. Section 16(b) of Arms Ordinance, 1965 reads as under:‑ "Whoever delivers any arms, ammunition or military stores into the possession of any person without previously ascertaining that such person is legally authorised to possess the same, shall be punished with imprisonment for a terms which may extend to three years or with fine or with both. It would be seen that there is no direct evidence that revolver (P1) recovered from Ashfaq Ahmad (accused in a murder case) had been supplied to him by the appellant. The appellant denied that revolver (P1) belonged to him. He asserted that his licensed revolver was revolver (P6) which bears No. B‑7637. He had produced this revolver and his licence during the investigation so his plea is not afterthought. Both revolver Ex.Pl and Ex.P6 bear NO.B‑7637. The difference is that revolver EX.P1 bears additionally an inscription "M. Sharif Peshawar". The question for determination is whether revolver P1 is appellants licensed revolver or revolver Ex.P

6. Admittedly the entry on the licence shows that appellant's revolver bears No.B‑7637. It does not show that his revolver bore the words "M. Sharif Peshawar". Similarly the record of Nazar Muhammad (PW2), Arms Dealer i.e. photo copy Ex.PC of sale register does not show that the revolver sold to the appellant bore any such inscription. Therefore, it cannot be held with any amount of certainty that the revolver (P1) recovered from Ashfaq Ahmad accused belonged to the appellant, hence appellant's conviction under section 16 of Arms Ordinance cannot be sustained. The appeal is accordingly allowed. Conviction and sentence of appellant is, therefore, set aside and he is acquitted. He is on bail. He is discharged from his bail bonds. S.A./N‑123/L Appeal accepted.