' This is an appeal by Dittu appellant against his conviction under section 14 of Arms Ordinance (XX of 1965) (hereinafter called the Ordinance) and sentence of seven years' R. I. Passed by the learned Civil Judge/Magistrate section 30, Hasilpur, for having kept in his possession in his Jhugi a '12 bore single barrel gun, which he got recovered on his pagination. This appeal was admitted to regular hearing on the question of quantum of sentence alone.
2. The learned counsel for the appellant has at the hearing simply prayed for the reduction of the sentence on the ground that sentence of 7 years' R.
1. On the recovery of a '12 bore single barrel shot-gun is excessive and should not have been awarded to the appellant. The learned counsel for the State concedes that this sentence is excessive on the facts of this case and according to his assessment, it should be reduced to a period of three years. None of the two counsel, has however, been able to tell me as to what is the yardstick with which to measure that imprisonment for 7 years is excessive and imprisonment for 3 years would be the proper sentence. I am, therefore, constrained to make resort to and scan the provisions of sections 14 and 14-A of the Ordinance which are relevant sections to find out if they contain anything in them as should serve as a guideline for the quantum of sentence to be imposed upon an offender under section 14 of the Ordinance.
3. The portions of sections 14, 14-A and 13 of the Ordinance which are relevant for the purpose of this case would read as below:-
14. Whoever,-
(a) does any act mentioned in clause (e) of section 13 (i. e. Has in his possession or under his control any arms, ammunition or military stores without any licence in that behalf) in such manner that such act is not likely to be known to any public servant shall be punished with imprisonment for a term which may extend to seven years, or with fine, or with both: ' Provided that if such offence is committed in respect of any fireman, military stores or ammunition, the imprisonment with which the offender shall be punished shall not be less than two years."
"14-A. Certain offences triable by Magistrates.-(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898), an offence punishable under section 13 or section 14 shall, unless it has been committed in respect of any of the arms, ammunition or military stores referred to in the proviso to the said section 13 be triable by a Magistrate of the first class.
(2) It may be noted that arms ammunition and military stores mentioned in proviso to section 13 are as below:-
(a) cannon, grenade, bomb or rocket; or
(b) light or heavy automatic weapon, rifle of '303 bore or over, musket of '410 bore or over or pistol or revolver of 441 bore or over, or ammunition which can be fired from such weapon, rifle, musket, pistol or revolver.
4. It is clear from mere perusal of section 14 that maximum sentence for keeping an arms (of any type) in one's control in a manner that it remains concealed from the view of public authorities is seven years. Further it is clear from the proviso to section 14 that minimum punishment for keeping a fire-arm (as opposed to a mere arms) in one's control in a manner that it does not become known to the public authorities is two years. These are the first two guidelines furnished by the section for quantum of sentence to be imposed upon a person. The third criterion is furnished by section 14-A read with proviso to section 13. Section 14-A says that notwithstanding anything contained in Cr. C. P. The offence under section 14 in respect of an arm which is not an arm mentioned in proviso to section 13 or in other words in respect of a fire-arm simpliciter is triable by a First Class Magistrate. Now the power of the First Class Magistrate to punish a criminal is, under section 32 of Cr. P. C. Restricted to maximum sentence of three years. Therefore, the 3rd guideline which is furnished by section 14-A is that ordinarily an offence under section 14 of the Ordinance in respect of fire-arm which is not included in fire-arms mentioned in proviso to section 13 i. e. An ordinary fire-arm is punishable with sentence of three years or rigorous imprisonment.
5. Now I may examine the present case in the light of this guideline. The case was transferred by the Sessions Judge, Bahawalpur from the Court of Magistrate Section 30, Bahawalpur Camp, Hasilpur to the learned Magistrate as Magistrate Section 30, Hasilpur. It was also tried by him as Magistrate Section 30. There appears, however, to be no realization by the said Magistrate that under section 14-A of the Ordinance it was a case triable by a First Class Magistrate. Therefore, though the trial was not illegal, Magistrate Section 30 is also basically a First Class Magistrate, the sentence beyond a period of three years' imprisonment was illegal as the said case was in respect of a fire-arm not included in the array of arms mentioned in proviso to section 13 and as such was triable by a First Class Magistrate. It is no doubt true that section 346, Cr. P. C. Was not applicable as the said Magistrate himself had with him section 30 powers and he could proceed with the trial if he had come to the conclusion that case was of more serious nature and appellant-accused deserved higher punishment than the one which could be awarded by him as a First Class Magistrate but then in that case he should have written an order to that effect and informed the appellant of the same and then proceed with the trial. In the case in hand, however there is no interlocutory order of that nature passed by the learned Magistrate and, therefore, the inference which can be drawn is that he was not conscious of the existence on the Statute Book of section 14- A restricting his power in the case in hand ordinarily to one of a First Class Magistrate. In the Circumstances, he could not have sentenced the appellant to a period beyond the period of 3 years under powers available to him as a First Class Magistrate. The provision of section 14-A in my opinion is indicative of policy of law as laid by the Legislature in its wisdom that in normal cases, a criminal under section 14 would not be visited with a penalty of more than three years' imprisonment and taking that into consideration in the absence of any indication on record as to why appellant was treated as a criminal for being tried by a Magistrate with enhanced powers, it must be held that sentence of 7 years' R. I. Imposed upon him was excessive.
6. Besides the above, within the framework of a maximum sentence of 7 years for arms and a minimum sentence of 2 years for fire-arms (as opposed to mere arms prescribed under said section 14, nature of the fire-arm recovered and its power of destruction is the next criterion for determining the quantum of sentence to be imposed upon a criminal). For this, examination of list of arms and ammunition as defined in sections 3(a) and 3(b) is necessary. Sections 3(a) and 3(b) of the Ordinance read as below:- "3(a) 'Ammunition' includes-
(i) ammunition of all types for light and heavy automatic weapons, revolvers, pistols, rifles, carbines, muskets and shot-guns;
(ii) ammunition constructed and modified for firing projectiles or gas or smoke containers;
(iii) gun was, gun flints, percussion caps, fuses, friction tubes and detonators;
(iv) all types of grenades, bombs, rockets, mines and fuels for flame throwers;
(v) all types of explosives, fulminating material and propellants, including all articles specially designed for torpedo operation and depth charges;
(vi) all parts of ammunition, but does not include lead, sulphur or saltpetre;
(b) 'arms' includes-
(i) Cannon;
(ii) fire-arms of all types, such as light and heavy automatic and semiautomatic weapons, rifles, carbines, muskets, shot-guns (whether single or double-barrelled), revolvers, pistols and appliances the object of which is the silencing of fire-arms;
(iii) air pistols, bayonets, swords, sword-sticks, daggers and knives with blades of for inches or more (but not kitchen knives or knives used in good faith for the carrying on of a profession) and flick-knives irrespective of the size of the blade.
(iv) knuckle-dusters, spears, spearheads, bows and arrows and parts of arms;".
' Further 'cannon' which is included in arms is defined in section 3(c) of said Ordinance as below:- 3(c) 'Cannon' includes,-
(i) All types of artilery, mortars, machines and sub-machine guns;
(ii) . .
(iii) .
(iv) revolvers or pistols of over 46 inches bore;
(v) nuclear weapons of all types;
(vi) Projectors, guided missiles and dischargers for grenades, rockets, bombs and gas or smoke- containers.
7. By reading the definition of arms and of cannon which is included in the definition of arms it is clear that there are most destructive type of arms included in the word 'arms' as defined in section 3 of the Ordinance. Some of them are nuclear weapons of all types, projectors, guided missiles and discharges for grenades, for rockets and for bombs etc. And all types of artillery, mortars, machines and sub-machine guns and revolvers and pistols of over 46 inches bore. It is clear that only holder of such types of most dangerous fire-arms in his possession or control in the circumstances that they remain concealed from view of public authorities, can be punished with maximum sentence of seven years under the section 14 on the principle that only extreme cases should be visited with extreme penalty. A person keeping in his control comparatively less dangerous arms cannot be treated at par with person holding extremely dangerous and most destructive type of arms enumerated above. It is obvious that a person keeping in his possession clandestinely a nenclear weapon or an artillery gun or a mortar cannot be equated, as regards degree of criminality, with a person holding merely a single barrel shot-gun. Further holding in one's control under the same circumstances ammunition (which includes grenades, bombs, rockets and mines etc. As defined in section 3(a) can similarly be punished with maximum imprisonment of 7 years. But can it be said that holder of a grenade, bomb, rocket or mine is guilty of same degree of criminality as a holder of a mere single barrel shot-gun. The obvious answer is no. It is clear, therefore, that a criminal under section 14, who was a holder of a C mere single barrel shot-gun which could not be equated with fire-arms of higher order could not have been given maximum sentence prescribed in the section.
8. Next factor which in my opinion can guide the court to determine the appropriate sentence in a case is the position occupied by fire-arm in the array of totality of arms. As already shown, first in their power of destruction come the most dangerous types of arms included in the word `cannon'.
Next come the fire-arms of all types. They are obvious less destructive than arms included in cannon. The arms like pistols, bayonets, swords and daggers etc. Come next while spears, bows and arrows etc. Fall in the lowest category, of arms. Categorizing the arms on the basis of their power of destruction of human life, I think, the position of fire-arms of permitted bores comes somewhere above the middle of the list of arms and, therefore, the sentence to be awarded in such cases should be above half the maximum sentence provided for the offence. Therefore, in normal cases of offence of retention of fire-arms, sentence should be somewhere more D than half the maximum sentence. This would be so if there are no other circumstances of aggravation of the offence. Furthermore, within the category of fire-arms, there are superior categories of fire-arms like heavy and light automatic weapons and relatively inferior types of fire-arms like single barrel or double-barrelled shot-guns and in their case sentence can be lower and may well come to half the maximum sentence prescribed for the offence.
9. Taking all the above criteria into consideration, the sentence of seven years awarded by the learned Magistrate was excessive in the extreme. The learned Magistrate treated the appellant as a criminal of the worst type holding arms without licence and keeping it concealed from public authorities. The infliction of the maximum punishment by the Magistrate is indeed open to a grave objection that it is not at all commensurate with offence committed and is unnecessarily harsh.
10. The learned Magistrate wholly ignored that the arm recovered from appellant is not even a double-barreled shot-gun and was only a single-barrelled shot-gun. He wholly excluded from consideration that in this weapon only one cartridge can be fired at one time and one has to load another in order to fire the next shot. Therefore, this single-barreled shot-gun is not comparable even to double-barrelled shot-gun E from which two cartridges can be fired at one and the same time. In the circumstances of this case, taking the above criteria into consideration, in my opinion sentence of three years' R. I. Was the proper sentence to be awarded in this case.
11. Furthermore, appellant's antecedents which are another criterion for determining the appropriate sentence to be imposed upon a criminal do not show the appellant to be a man of depraved character or even a previous offender. It is given in the identity certificate (Fard Shanakhat) appended to the challan file that a case under section 457/380, P. P. C. Is pending against him. There is nothing, however, to show that he had been convicted for the same. Such a person should not in my opinion be kept in the Jail for such long a period as may result in deterioration of his character F and turning him into a hardened criminal. For this reason, the sentence of three years' R. I. In my opinion would meet the ends of justice in this case.
12. Needless to say that in proposing a sentence of three years I have relied on the principle that punishment should not be vindictive or unduly severe and harsh that it should be the least that will prevent the repetitions of the crime by the offender and will deter others similarly placed from committing the said offence.
13. For the foregoing reasons, I accept the appeal partly and reduce the sentence of the appellant from seven years to three years' R. I. The appellant would be entitled under section 382-B, Cr. P. C.
To the reduction of his sentence of imprisonment to the extent of period be remained in detention in Jail as an under trial prisoner.