' AHMED KHAN LASHARI, J.--- The learned Special Judge, S.T.A./Additional Sessions Judge-I, Quetta vide judgment, dated 30-5-2002, passed in Arms Case No,5 of ,2001. Convicted the accused Gul Muhammad under section 13-E of Arms Ordinance, 1965 and sentenced to suffer R.I. For five years and to pay fine of Rs,20,000, in 'default to further suffer S.I. For three months with benefit of section 382-B, Cr.P.C. Against which this criminal appeal has been directed.
2. The stated facts of the prosecution case are that during investigation of case Crime No,10 of 1999 offence under sections 302/324, P.P.C. The appellant recovered an unlicensed kalashnikov along with its magazine, containing 29 live bullets, from his house and produced it to the Investigating Officer/Naib Tehsildar Maqbool Ahmed (P.W.2) which was seized and case Crime No,11 of 1999 under section 13-E of the Arms Ordinance, 1965 (hereinafter referred to as the Ordinance) was registered against him. The charge for the offence was read over to the appellant which was denied.. The prosecution to prove the accusation produced P, W.1 Syed Abdul Malik, Dafedar Levies, as recovery witness, P. W.2 Naib Tehsildar Maqbool Anwar. The complainant as well as Investigating Officer of the case. The appellant in his statement under section 342, Cr.P.C., denied the prosecution allegation, however, he did not opt to record his statement on oath or to produce any witness in defence. The learned trial Court on completion of trial, vide judgment impugned convicted and sentenced the appellant as mentioned hereinabove, hence this appeal.
3. Mr. Shamsuddin, Advocate, learned counsel for appellant contended that the appellant himself produced the kalashnikov to the Investigating Officer which he collected from deceased Zahir, who along with his sons and others came to the house of appellant and made firing on him. The learned trial Court illegally convicted the appellant for possession of unlicensed kalashnikov under section 13-E of the Ordinance.
4. Sardar Munir Ahmed Durrani, Advocate appeared for State and contended that during investigation of case Crime No,10 of 1999, on the disclosure of appellant the unlicensed kalashnikov with 29 live cartridges was recovered from his house. The P.Ws. Being official witnesses, having no enmity with the appellant, in their account proved the factum of recovery. The learned' trial Court on proper appraisal of evidence rightly convicted the appellant.
5. We have heard the learned counsel for the parties and have gone through the record as well as impugned judgment. The case of prosecution is that the appellant during investigation of a murder case made disclosure and produced the kalashnikov to Investigating Officer, stated to be used in the commission of offence.
' F'.W.1 Syed Abdul Malik deposed that in his presence the accused produced a kalashnikov with magazine containing 29 live cartridges including one bullet in the chamber from his house which was seized vide recovery memo. Ex.P.1 and he stood Mashir to it. P.W.2 Maqbool Anwar Naib Tehsildar/complainant stated that during investigation of a murder case the appellant disclosed about the crime weapon and led the Levies to his house and produced a kalashnikov with magazine containing 29 live cartridges, for which he did not possess any license or permit as such, case under Arms Ordinance, was registered against him.
' The appellant in his statement under section 342, Cr.P.C. Admitted the recovery of kalashnikov and live bulletswith a plea that. The kalashnikov belonged to deceased Abdul Zahir, who along with his sons and others came to his house and attacked upon him. The defence plea was accordingly suggested to the prosecution witnesses. It may be noted that we after believing the recovery in main case have acquitted the appellant on the plea of self-defence. It is to be examined the immediate or temporary possession of kalashnikov, not owned by a person covered by section 9 and hit by section 13-E of the Ordinance which reads as under:-- "No person shall have in his possession or under his control any arms, or any ammunition or military stores, except under a license and in the manner and to the extent permitted thereby."
' The law provides actual and physical possession of arm and its use for the purpose by a person without holding a license or permit to be an offence, mere constructive and presumed control does not constitute a liability which the law might for other purposes import into the facts of the case.
(Relied on judgment reported in PLD 1967 Pesh. 53). We to support the view, like to reproduce the ,principle laid down on the point in case Emperor v. Santa Singh reported in AIR (31) 1944 Lah. 339 wherein it has been held:-- "The words 'possession and control' in S.19(t), Arms Act, and S.5, Explosive Substances Act, mean something more than mere constructive or legal possession and control. Possession and control required to constitute offences under the aforesaid sections must mean conscious possession and actual control, and as under those sections mere possession of incriminating articles constitutes serious criminal offences there must be men sea or guilty knowledge before a person can be convicted of such possession, consequently, where incriminating articles under ,S.19(t), Arms Act, and S.5, Explosive Substances Act, are recovered from a place in the occupation or possession of more persons than one and it is not possible to fix the liability on any particular individual, a Court is not bound to hold that the said articles were in possession or under the control of the head of the family: 9 Lah. 531=(28) 15 AIR 1928 Lah. 272=109 IC 209 and 11 Lah. 305=(30) 17 AIR 1930 Lah: 884=122 IC 108 overruled; case-law discussed."
' The possession is link with intention or consciousness and knowledge of the person which is to be established to bring the case within four corners of the proviso of section 13 of the Ordinance in order to constitute an offence. There can be no possession without intention and consciousness and where possession is base for crime then it must be established through evidence.
' It is worthwhile to mention here that we have believed the plea of self-defence, grave and sudden provocation of the appellant and held that the deceased Abdul Zahir along with others came to his house and attacked upon him, when his wife interfered, deceased Abdul Zahir and the wife of appellant, who was holding the Holy Qur'an, fell down, then the accused collected the kalashnikov and made fires on deceased and injuring two others. In the circumstances the production of kalashnikov just after the incident to P.W.2 does not come within the purview of section 13-E or hit by section 9 of the Ordinance. The appeal is accepted, impugned judgment is set aside. The appellant be set at liberty, if not required in any other case.