' Local Police raided the house of Abdul Akbar, petitioner herein, on 1-9-1982 at about 23.30 hours.
This raid was conducted to arrest Muhammad Ayaz, said to be proclaimed offender, who is the son of Abdul Akbar, petitioner herein. The proclaimed offender was not found in the house at the time of raid. The police, however, arrested Abdul Akbar for being in possession of an unlicensed D.B.
Shotgun (made in Spain) bearing No,248592 and six .12 bore live cartridges. This raid was conducted by police-party, including the S.H.O., and none from the locality was associated with the raid. After completion of the investigation, challan against Abdul Akbar, petitioner herein, was submitted to the Court. Abdul Akbar was tried by the learned Illaqa Magistrate for committing offence punishable under section 13, Arms Ordinance. The charge was framed against him on 18- 4-1983, which was read over to him, to which he pleaded not guilty. Trial, therefore, proceeded against him, whereat prosecution examined Abdul Mutlaib (P.W.1), then S.H.O., P.S., Shabqadar, Lal Badshah (P.W.2), then A.S.I., P.S. Shabqadar and Khalo Khan, Moharrir Head Constable (P.W.3). The prosecution closed its evidence and thereafter Abdul Akbar accused was examined by the Court on 31-5-1983. In his statement before the Court, the accused claimed that the shot gun recovered during the house search was a licensed weapon and that he had produced the licence before the S.H.O. At the time of search. The accused also produced that very licence bearing No,453/DCSH, covering D.B. Shotgun No,248592, before the Court. The licence stood renewed upto 31-12-1984.
After the statement of the accused had been recorded, the Court summoned Muhammad Humayun, Licence Clerk and Muhammad Amin, Arms Dealer as Court witnesses. Their statements were recorded and the prosecution and defence afforded opportunity to cross-examine them.
Significant to note, after the statements of the Court witnesses were recorded, the accused was not provided with opportunity to clear anything which might have appeared in these statements against him. The learned trial Magistrate finding Abdul Akbar accused guilty of committing offence punishable under section 13 of the Arms Ordinance convicted him thereunder and sentenced him to pay a fine of Rs,80, or in default to suffer twenty days simple imprisonment. In the lenient view which the learned Magistrate took in this case, he was influenced by the fact that the accused had been attending the Court for trial and re-trial for a long time. The shotgun and the .12 bore cartridges which were recovered during the raid were directed by the learned Magistrate to be confiscated to the State. The licence copy, found to be a duly issued licence, was, however, returned to Abdul Akbar accused.
2. Abdul Akbar was not satisfied with his conviction. He appealed to the Court of Sessions. His appeal was, however, heard by Mr.Ishtiaq Noor Pardesi, Additional Sessions Judge, Charsadda. The learned Additional Sessions Judge, while partially accepting the appeal, vide his order dated 3-1- 1984, set aside the conviction and sentence of Abdul Akbar accused, petitioner herein and acquitted him of the charge under section 13, Arms Ordinance. He, however, maintained the order of the learned trial Magistrate respecting the confiscation of the shotgun. The accused was acquitted by the learned Additional Sessions Judge because he was found to be in 'temporary possession' of the weapon at the relevant time and according to the authority reported as PLD 1967 Pesh . 116, such possession did not constitute offence under section 13, Arms Ordinance. From this approach to the case, it can safely be presumed that the learned Additional Sessions Judge dealing with the appeal had in mind that the weapon was a licensed weapon and its 'temporary possession' by the accused, therefore, did not constitute offence. He has, at the relevant place, also indirectly expressed in his order to that effect. So was the law laid down by this Court in the authority, referred to above, quoted by the learned Additional Sessions Judge in his impugned order. As the order of the learned Magistrate respecting the confiscation of the shotgun to the State was not disturbed by the first appellate Court, Abdul Akbar had grievance against that order, which he assailed in this Court by filing this revision petition.
3. Mr.Safirullah Khan, Advocate, appeared on behalf of the petitioner and Mr. Amirzada Khan, Advocate-General appeared on behalf of the State. They were heard and the record of the case carefully perused with their assistance,
4. The learned counsel for the petitioner contended that the impugned order of the learned Additional Sessions Judge was self-contradictory in that on the one hand he reached the conclusion that the 'temporary possession' of the shotgun in question (obviously of a licensed weapon) by the accused-petitioner was not an offence; so acquitting him mainly on this ground, but on the other he concluded that since the number on the safeguard did not tally with the number engraved on the butt and the barrels, the shotgun was not covered by the licence issued in the name of Muhammad Ayaz, thus confiscating the shotgun to the state being an unlicensed weapon. The learned counsel further contended that the evidence brought on record established beyond any doubt that a licence for the shotgun was issued to Muhammad Ayaz son of Abdul Akbar by a competent authority, that the number engraved on the shotgun was duly entered in the licence copy and the licence register maintained in D.C's Office and that this entry in the licence copy and the register had been made much earlier than the date on which raid was conducted.
His precise contention was that since the shotgun recovered from the house of the petitioner was a licensed weapon and since at the relevant time it was lying in the house of the petitioner, it could not have been confiscated by the Court as no offence with respect to it was committed by any person, muchless the petitioner. The learned counsel maintained that for that reason the confiscation order made by the trial Court and confirmed by the learned Additional Sessions Judge being illegal merited interference by this Court.
5. The learned Advocate-General very frankly, and rightly so, conceded that the shotgun which has been confiscated to the State in this case, was in reality, covered by the licence issued in the name of Muhammad Ayaz son of Abdul Akbar. The learned Advocate-General made this concession after seeing in the Court the shotgun which was requisitioned by this Court for inspection. Such a conclusion, rightly reached by the learned Advocate-General, was inescapable inasmuch as both the butt and the barrels of the shotgun were having engraved on them number 248592, which was the number entered in the licence copy of Muhammad Ayaz and the relevant register kept in the Office of the, Deputy Commissioner. So far as the safeguard was concerned, it bore on it the figure '592' which consisted of last three digits of the main number. The first contention of the learned Advocate-General was that, being not the licence-holder of the shotgun involved in this case, the petitioner had no locus standi to file this revision petition. He, however, conceded that after summoning the record this Court could in exercise of suo mote revisional jurisdiction revise the impugned order in the manner deemed appropriate. His other contention was that the shotgun being the case property could be confiscated to the State by the Courts dealing with the case. His other argument was that in case the confiscation order was set aside then the shotgun could be directed to be handed over by the District Magistrate only to the person in whose name the licence exists and that under no circumstances the shotgun could be delivered to the petitioner who was legally not authorised to carry it.
6., I have carefully considered the arguments of the learned counsel representing the petitioner and the State in the light of the evidence brought on record. As already pointed out, the D.B.
Shotgun No,248592 (made in Spain) was covered by a validly issued licence in the name of Muhammad Ayaz son of Abdul Akbar. The fact that the house of Abdul Akbar was raided by the police in order to arrest his son Muhammad Ayaz would clearly establish that the house from where the shotgun was recovered was, according to prosecution's own case, jointly occupied by the petitioner and his son Muhammad Ayaz. The fact whether Muhammad Ayaz son of Abdul Akbar was a proclaimed offender has not been clearly established from the evidence brought on record.
The prosecution could have easily proved this fact by bringing on record the copy of order of the Court declaring Muhammad Ayaz as a proclaimed offender. The failure of the prosecution in this regard would create a presumption against it. The mere admission of the accused-petitioner to that effect would not brand Muhammad Ayaz, a third person in this case, a proclaimed offender. Be that as it may, even a proclaimed offender could leave his licensed weapon in his house, and such leaving by itself did not constitute an offence under the Arms Ordinance. While it was so kept in the house it could not be secured by the police because no offence with respect to it, as held by the learned first appellate Court, was committed by the petitioner before me. It has come in the statement of police witness (Lal Badshah A.S.I., P.W.2) that the recovery of the gun was effected inside the house. There is also not an iota of evidence on the record to show that the petitioner had used the shot gun in any manner. I am, therefore, of the view that since the shotgun was a licensed weapon and since it was kept by the licence-holder in his house and since its 'temporary possession' by the petitioner, who has already been acquitted of the charge, did not constitute an offence, it could not be regarded as the case property so as to become available for confiscation by the Court. Any illegal adventure by the police in that respect did not vest the Court with power to make an effective confiscation order. That being so, the confiscation order of the shotgun made by the learned Magistrate and confirmed by the learned Additional Sessions Judge, being illegal, cannot be allowed to stand. In consequence, therefore, further action taken by the Provincial Government in disposing of the shotgun, which was founded on that illegal order, also cannot be allowed to stand.
7. I agree with the learned Advocate-General that the shotgun in question can only be returned to the person in whose name it has been licensed. He is Muhammad Ayaz. Son of Abdul Akbar.
8. In the end, while accepting this revision petition, I would set aside the orders of the two Courts below to the extent impugned herein. I would further, under subsection (2) of section 517, Cr.P.C., direct the District Magistrate, Peshawar to keep the shotgun in question in safe custody to be returned to the licence-holder as and when he comes forward to collect it. This order is without prejudice to any actioh available to the State at law. Copy of this order to be sent to District Magistrate, Peshawar for necessary action.