1. ' S. ALI ASLAM JAFRI, J.---Applicant who was arrested on 17-8-2004 in Crime No.53 of 2004 of Police Station, Taluka Mirpurkhas under section 13(d) of Arms Ordinance for being found in possession of SMG MP5 of his master Manzoor Hussain Wassan MNA at the relevant time while driven a Double Cabin Toyota Pick-up bearing Registration No.CK 3434 of his master, and now facing trial in the Court of learned Sessions Judge, Mirpurkhas, for the said charge has filed this application under section 561-A, Cr.P.C. Seeking quashment of the proceedings pending against him in the said Court.
2. ' The case of the prosecution appears to be that on 17-8-2004 SIP Sher Khan Rind S.H.O., Police Station, Taluka Mirpurkhas lodged a report under section 13(d) of Arms Ordinance, 1965 at the said police station, stating therein that on that date while holding Naka-Bandi on Main Road in front of the Police Station, at about 0100 hours he checked a Double Cabin Toyota Pick-up coming from Jarwani Shakh and found that a person was driving the said vehicle whereas two other persons were sitting on the rear seat. On enquiries the driver disclosed his name and address to be Nazeer Ahmed son of Mir Muhammad Wassan resident of Village Nawab Ali Wassan, Taluka Kotdiji, District Khairpur. Besides him one SMG MP5 No.Az-A-7707 with magazine and 25 live rounds of SMG was lying on the front seat. On enquiry about the licence, he disclosed that the vehicle he was driving as well as the weapon belong to his master Manzoor Hussain Wassan MNA and at that time its licence was not with him. The two other persons sitting on the rear seat of the vehicle were found empty- handed. In respect of the documents of the vehicle, driver Nazeer Ahmed informed that the documents were not available with him at that time. Accused was arrested under section 54, Cr.P.C. In presence of the constables due to non-availability of public mashirs and such mashirnama was prepared. The arm recovered was found in working condition with 25 live rounds hence after registration of the F.I.R. And usual investigation, the applicant was challaned under section 13(d) of Arms Ordinance, 1965. The vehicle was also seized under section 550, Cr. .P.C. While suspecting it to be a stolen property.
3. ' From the perusal of the police papers it appears that after some time MNA Manzoor Hussain Wassan also reached at the police station and produced the licence before the,police for the said arm. He also produced the registration papers of the vehicle in question which was restored to him.
4. Applicant/accused was also released in view of surety bond furnished by Manzoor Hussain Wassan and P.R. Bond executed by applicant. However, challan against the applicant was submitted and he is facing trial under section 13(d) of Arms Ordinance.
5. ' Mr. Muhammad Yousaf Leghari, learned counsel for the applicant, has argued that during the investigation the SMG MP5 was found to be licensed weapon of Manzoor Hussain Wassan so also the vehicle in question seized allegedly under suspicion, as after some time Manzoor Hussain Wassan had reached at the police station where his statement was recorded by the police in which he claimed to be the owner of vehicle in question and SMG MP5 for which he produced his Licence bearing No.46515/89-2-11-89. He had also stated before the police that while going from Mirpurkhas to village of MPA Irfan Ali Shah during the election campaign or the seat of National Assembly, he stayed behind due to puncture of his vehicle whereas his double cabin pick-up which was ahead of other vehicles and being driven by his driver and guard Nazeer Ahmed in which his licenced SMG MP5 was laying was taken in possession by the police. Mr. Muhammad Yousaf Leghari, learned counsel for the applicant, in support of this application for quashment has argued that even if the case of the prosecution is taken as it is, the charge is groundless and no case for registration of F.I.R. Under section 13(d) of Arms Ordinance or submission of challan has been made out against the applicant in view of the material collected by the police during investigation and well settled principle of law that temporary possession of a licensed arm by a servant/driver or guard of a licensee owner does not constitute an offence punishable under section 13(d) of Arms Ordinance. In support of this contention learned counsel referred to the case reported as The State v. Noor Haider PLD 1967 Peshawar 02 where learned Single Judge with reference to Emperor v.
6. Lalman Tharu AIR 1937 Pat. 347 and in re: Avidi Veerasami v. Crown AIR 1940 Mad. 257 quashed in conviction of Noor Haider a nephew and servant who was carrying the licensed shot-gun of his master at his bidding to his village, hence no offence whatever under the Arms Ordinance was found to have been committed.
7. ' The rule laid down in the above cited cases which was taken into consideration by the learned Single Judge, is reproduced hereinafter:-- "In the first noted case, the Division Bench comprising of Agarwala and Warma, JJ had observed:-- - "In the case of a licensed weapon a person who merely assist the owner of the weapon by carrying it for him or taking it somewhere from him may be said to assist of his master in doing a perfectly legal act, for the master being the licensee is entitled to have the gun in his possession."
8. ' In the latter case, it was held:-- "A servant of a gun licensee merely carrying the gun of his master to the house of the master under his orders is not guilty under section 19(f)."
9. ' Learned counsel further argued that an identical question come up for hearing before the Honourable apex Court in the case reported as State through A.-G. Sindh v. Muhammad Akber Samejo 1992 SCM R 2310, where after examining the law on the point enunciated by various Courts of this country as well as from Indian Jurisdiction and while referring to above referred two cited cases Ajmal Mian, J. (as his Lordship then was) speaking for the Bench, observed as under:-- "The proposition of law enunciated in the above case-law seems to reflect correct legal position. In our view, temporary possession or control of a servant in the course of discharge of his normal duties, over his master's licensed fire-arm under the master's order/direction, in the circumstances, which warrant such order/direction will not attract the above provisions of the Ordinance. However, if a servant without any justifiable reason is found in possession or control of a licensed fire-arm of his master, he may render himself criminally liable though he may claim that this possession or control was temporary."
10. ' With reference to the facts of the case his Lordship observed in para.11 of the judgment as under:-- "11. Adverting to the facts of present case, it may again be observed that the High Court on the basis of material on record found that the fire-arms secured from the respondent were licensed arms of the respondent's master Asif Ali Zardari who was going out of Karachi by air. The respondent was duty bound to carry his master to the Airport in the vehicle provided by him. The respondent was not expected to ask his master not to carry the above arms in the jeep for his personal safety, nor he could have asked him to take the arms with him while boarding the plane from Karachi Airport and, therefore, the respondent in the discharge of his normal duties was taking back the above arms to his master's house when they were seized by the police party. In our view, the High Court has rightly concluded that no case could have been made out against the respondent for criminal liability keeping in view the above preponderance of the judicial view."
11. ' Learned counsel, therefore, vehemently urged that the proceedings pending against the applicant under section 13(d) Arms Ordinance, 1965 are liable to be quashed.
12. ' Mr. Anwar H. Ansari, learned. State counsel, has apposed to the prayers made in this application and argued that this application for quashment is not maintainable as the applicant did not approach the trial Court in the first instance and in view of the rule laid down in the case of Bashir Ahmed v. Zafar-ul-Islam and others PLD 2004 SC 298, wherein scope of quashment proceedings was considered and held that the provisions of section 561-A, Cr. P. C . Should never be understood to provide an additional or alternate remedy nor could the same be used to override the express provisions of law as against an order passed on an application under section 249-K, Cr.P.C. By a Magistrate refusing to acquit the accused as remedy to an aggrieved person was available under section 439 or 439-A, Cr.P.C. It has been further held that inherent powers can be invoked to make a Departure from the normal course prescribed by law only and only in exceptional cases of extraordinary nature and reasons must be offered to justify such a deviation. Such objection was also raise by the office questioning the maintainability of this application. However, the learned State counsel has not been able to controvert the facts regarding the recovery of the licensed SMG MP5 of MNA Manzoor Hussain Wassan from his Double Cabin Toyota Pick-up or that applicant was his driver and that after some time Manzoor Hussain Wassan appeared at the concerned police station where he had found his vehicle parked outside and produced his licence for the said SMG MP5 and registration papers of the vehicle and the accused/applicant was released by the police after obtaining surety bond from licensee Manzoor Hussain Wassan and P.R. Bond executed by the applicant.
13. ' To meet the objection regarding the maintainability of this application with reference to the case of Bashir Ahmed v. Zafar-ul-Islam and others (supra) Mr. Muhammad Yousaf Leghari, learned counsel for the applicant, has argued that the case in hand falls under the exceptional cases of extraordinary nature, as Manzoor Hussain Wassan being MNA of opposition party was busy in that area in Election Campaign in the bye-elections, in support of the candidate of Pakistan Peoples Party against the candidates of ruling party Muslim League (Q) and it was done by the police with mala fide intentions to humiliate him and keep him away from the election campaign in favour of his party candidate, as such the case in hand stands covered within the rule laid down by the Honourable apex Court justifying the departure. Learned counsel further argued that it is not always necessary to approach the trial Court in the first instance and this Court in exercise of its inherent powers can entertain application for quashment directly under the circumstances, as in this case. In support of his contention learned counsel referred to a number of decision from various high Courts of the country as well as the Honourable apex Court including the case of Munir Ahmed v. State PLD 1985 SC 257 and Syed Manzoor Hussain Shah v. Agha Hussain Naqvi and State 1983 SCMR 775.
14. Indeed for seeking acquittal in a case of groundless charge, usually the trial Court is to be approached in the first instance, but the rule is not absolute and it is not always necessary to insist for its strict compliance. In appropriate cases, as the case in hand more particularly when quashment of the proceedings is sought deviation is permissible. Even otherwise, there is no bar under section 561-A, Cr.P.C. To entertain application directly by this Court.
15. ' After examining the material available on record and respectfully following the rule laid down in the case of Muhammad Akber Samejo (supra). I am inclined to hold that temporary possession or control of the applicant who is a driver/servant of licensee Manzoor Hussain Wassan in the course of discharge of his normal duties over the master's licensed fire-arm under the master's order/ direction will not attract the provisions of section 13(d) of the Arms Ordinance. Thus, the applicant does not appear to have committed an offence for which he has been charged and being tried.
16. Thus, proceedings pending before the learned trial Court, if allowed to continue shall amount to abuse of the process of law, hence the same are hereby quashed. Consequently, the applicant stands acquitted of the charge.