Appellant Allah Rakbio son of Muhammad Urs has been convicted by the learned Additional Sessions Judge. Tharparkar at Sanghar under section 14 of the West Pakistan Arms Ordinance, 1965 (hereinaf(er referred to as the Ordinance) and sentenced to R. I. For three years on the charge of being in possession of an un--licensed revolver and six bullets which were alleged to have been found concealed in the fold of his trousers.
2. Mahmoodul Hassan P. W. 1 who ordinarily resides at Shahdadpur owns a bungalow in Khudadad Colony at Karachi where he stays whenever he comes to the city. In December 1966, one Muhammad Sharif Warya, a friend of P. W. 1 had come to Karachi and was staying in the house of Mahmoodul Hassan The appellant who was at that time employed as a cook of Muhammad Sharif Warya was also staying with him. Mahmoodul Hassan, his guest Muhammad Sharif and the appellant all left for Shahdadpur on 12-12-1966. On 10-2-1967, when P. W. 1 returned to his house at Karachi he found the lock of his cup--board broken and his Webly Scott revolver No. A-20757 SB*32 bore missing therefrom. The matter was reported to Brigade Police Station by Mahmoodul Hassan on 12-2-1967 at 11-30 a.m.
3. On 23-6-1967 at about 10-45 p.m. A. S. 1. P. Sardar Ahmed of Tando Adam Police Station, acting on spy information left on a round in connection with securing of some absconders including the appellant. He and his staff concealed themselves in the fruit market. At about 12-20 a.m. The appellant was seen coming from the railway station side.
He was secured by the A. S. I. P. And on search Webly Scott revolver No. 20757 which was alleged to have been stolen from the house of P. W. Mahmoodul Hassan was recovered from the fold of his trousers. The appellant had no licence for any fire arm. The unlicensed revolver was secured by the police in presence of mashir Saindino P. W. 3 vide memo. Of recovery Exh.
7. According to the evidence of A. S. I. P. Sardar Ahmad the revolver was so concealed that it could not be visible to him before the search. Sardar Ahmed brought the appellant and the articles recovered from him to the Police Station Tando Adam, where he lodged his First Information Report Exh. 8 in the course of the same night. On 6-7-1967 P. W. Mahmoodul Hassan was shown this revolver and he identified it to be his. The. Appellant was, there--after challaned.
4. Apart from the evidence of A. S. 1. P. Sardar Ahmed the recovery of revolver No. 20757 from the appellant was proved by the evidence of mashir Saindino P. W. 3 who was a respectable Zamindar of the locality. This witness was not even cross--examined by the appellant and he was fully corroborated by the mashirnama, Exh. 7.
5. The version of the appellant was a bare denial of the prosecution case. In the Court of the committing Magistrate he stated that he was a servant in the house of one Faqir Gbulam Hussain where Muhammad Sharif Warya and mashir Saindino used to come frequently. The appellant stated that mashir Saindino had given false evidence against him as they did not like each other.
He also stated that Saindino was a regular police mashir and bad been set up by them. The appellant stated further that he was arrested at 8-0 a.m. From the house of Ranger Muhammad Ismail.
6. At the trial, however, the appellant admitted that he was a servant of Muhammad Sbarif Warya with whom he bad gone to Karachi and had stayed at the residence of P. W. Mabmoodul Hassan.
He added that he bad been falsely involved in this case as be wanted to leave the service of Muhammad Sbarif who would not allow him to do so. Afterwards when the appellant left this service Muhammad Sharif got him falsely involved in this case.
7. The inconsistent statements made by the appellant in the two Courts amply demonstrate their falsity. Besides not a single question was put to mashir Saindino or A. S. 1. P. Sardar Ahmed which could throw any doubt on their testimony.
8. It has been accordingly fully established that the appellant was carrying the Webly Scott revolver No. 20757 which was concealed in the folds of his trousers. The ;question would still remain whether on these facts he could be convicted for an offence under section 14 of the Arms Ordinance, which reads as follows :- "W hoever-
(a) does any act mentioned in clause (a), clause (c) or clause (e) of section 13 in such manner that such act is not likely to be known to any public servant as defined in the Pakistan Penal Code (Act XLV of 1860), or to any person employed upon any railway or to the servant of any public carrier,
(b) on any search being made under section 21, conceals or attempts to conceal any arms, ammunition or military stores, shall be punished with imprisonment for a term which may extend to seven years, or with fine, or with both . . . . . : '
The heading of this section shows that it deals with "certain breaches of sections 4, 5, 9 and 21" of the Ordinance. This Ordinance was promulgated on 8th June 1965 and there is, accordingly not much case-law on the subject.
While interpreting the provisions of the Ordinance it may, however, be useful to examine the corresponding sections of the Arms Act (Act XI of 1870 (hereinafter referred to as the Act) which was in force till it was repealed by the Ordinance as, provided under section 39 thereof.
Section 20 of the Act reads as follows :- "Whoever does any act mentioned in clause (a), (c), (d) or (f)--of section 19, in such manner as to indicate an intention that such act may not be known to any public servant as defined in the Pakistan Penal Code, 1860, or to any person employed upon a Railway or to the servant of any public carrier, and whoever, on any search being made under section 25, conceals or attempts to conceal any arms, ammunition or military stores, shall be punished with imprisonment for a term which may extend to seven years, or with fine, or with both."
9. On a comparison of the two sections it would be seen that the two sections are identical except in one respect, namely, that the words "in such manner as to indicate an intention that such act may not be known to any public servant" in section 20! Of the Act have been substituted by the words ' in such manner that such act is not likely to be known to any public servant" fn section 14 of the Ordinance. In the heading of this section also the word "secret" appearing in the marginal note of section 20 has been omitted.
This change in language is significant and appears to have been introduced with a view to relieve the prosecution of the duty to establish the requisite intention on part of the accused, namely that his act of manufacturing, possession, import, export, etc. Of fire arms may not be known to any public servant. Under section 14 of the Ordinance all that the prosecution is required to establish is that the accused did either of these things in such manner that his act was not likely to be known to a public servant.
This distinction can also be seen from the heading of these two sections. It i> sigaificant that whereas the marginal note in section 20 of the Act is "for secret breaches of sections 5, 6, 10,. 14 and 15", the word "secret" has been omitted and substituted by the word "certain" in the heading of section 14 of the Ordinance.
The burden of proof is accordingly lighter under section 14 of the Ordinance and it follows that every case which could come under section 20 of the Act must necessarily fall under section 14 of the Ordinance ; but the converse would not necessarily be true.
10. In the light of what is stated above some of the imporant decisions under section 20 of the Act may now be considered.
11. In the case of Rehmat v. The State (1) a learned Single Judge of this Court relying on Channan Singh v. The Crown (2) held that "something more than a mere ordinary concealment should be established in order to bring the illegal possession of arms within the meaning of section 20 of the Arms Act". It was trot clarified as to what was meant by "something more than a mere ordinary concealment". The case of Channan Singh v. The Crown, however, proceeded on the basis that section 20 of the Act applied only to cases where import or export of arms was attempted and not to every case of possession or concealment of arms. A similar view was also taken in Ibrahim v.
Crown (3) but this view was later dissented from in the following cases t-- Mst. Bubo v. Emperor AIR 1926 Lab. 61 ; Chet Singh v. Emperor AIR 1926 Lab. 262 ; Sachindra Kar Gupta v. Emperor AIR 1933 Cal. 692 ; and Jagdish Dutt v. Emperor AIR 1940 Oudh 337.
1 would respectfully agree with the view expressed in these cases t but as held in Chet Singh's case itself "some special indication of an intention that the possession of arms was being concealed" would be necessary before an accused was found guilty under, section 20 of the Act.
11. An analysis of the various authorities on this subject would show that this indication of intention can be furnished by the conduct of the accused. In this respect I may mention the cases of- Udamsingh and another v. Emperor AIR 1915 Lab. 193 ; Harsh Nath Chatterjee and another v. Emperor AIR 1915 Cal. 719; Saehindra Kar Gupta v. Emperor AIR 1933 Cal. 692; Jodhsingh v. Emperor AIR 1939 Lab. 17 1 Jogdish v. Emperor AIR 1940 Oudh 337 ; and Mansingh alias Priya Varat Singh v. Emperor AIR 1941 All. 349. in all of which the accused were found guilty under section 20 of the Act because of their suspicious conduct. For example, in Harsh Nath Chatterjee and another v. Emperor the appellant had tept unlicensed arms in a house which he had acquired in a false name; and he always kept its doors and windows closed. Another,
(1) PLD 1965 Lab. 386
(2) I L R 6 Lab. 51=AIR 1925 Lab. 393
(3) 44 P W R Cr. 1912 circumstance against him was that he was wanted by the police and was, therefore, concealing himself. Similarly in Sachindra Kar Gupta v. Emperor, which was a Division Bench case, the appellant began to shiver when questioned by the police who were looking for "declared absconders". In the Allahabad case appel--lant Mansingh was seen looking suspiciously at his Jhola or haversack which contained a revolver. In a later case from the same High Courtreported as Nfazu v. The State (1) it was however, held that merely running away on sight of police would not be sufficient indication of concealment.
The character and antecedents of the accused person may also be a relevant consideration in this respect. In the case of Prem Kumar v. Emperor (2) when a revolutionary was caught at a railway station with a trunk containing an unlicensed revolver, it was presumed that he must have intended to conceal its posses--sion. The question whether an accused person does or does not offer an explanation is also a relevant circumstance ; but the basic test appears to be whether concealment of the possession was the predominant intention. In other words what the Court is required to see is whether the accused would have carried the weapon in the same manner even if he held a valid licence for its, possession. In Udham Singh v. Emperor Leslie Jones, J. Observed as follows :- "No man, however, who carries a revolver would put it any--where else than in a pocket. For the sake of convenience he would not think of carrying it in his hand, and unless he wishes to advertise its possession to the whole world, he would not carry it exposed to view as in a belt."
Similarly in Ramchander v. Rex (3) where the accused carried an unlicensed pistol in a hand bag which was locked and on being asked by a policeman said that the bag contained a pistol, it was held that he could not be convicted under section 20 of the Act. In the same case, it was observed as follows :- "I do not think it makes any difference whether a pistol is carried in a pocket or in a hand bag, both are usual and convenient modes of carrying it. Carrying it in a hand bag even if it be locked, indicates no greater intention to conceal the possession than carrying it in a pocket. A man may carry currency notes in his pocket without having in his mind any intention of concealing its possession from the public. If he carries it instead in a hand bag nobody would say that he did so with an intention of concealing it from the public. The fact that the pistol is not visible to the public is absolutely irrelevant. The law is not so absurd as to lay down that when a person has in his possession an unlicensed pistol he must carry it exposed to the public view lest he should be found guilty of the graver offence of section 20. It certainly does not .Expect a man having no licence for a pistol to advertise his possession of it by carrying it exposed."
(1) (1962) 2 Cr. J 123(2) AIR 1931 Lah. 571
(3) AIR 1950 All. 386 Llesai, J. Referred to and discussed a large number of authorities in this case and reached the following conclusions :- "It was stated in Jogendra Mohan v. Emperor (34 Cr. L 1879= AIR 1933 Cal. 516), that there is a strong presumption that a person in unlicensed possession of a revolver has a fixed intention that his possession should not become known to public servants. This presumption can be said to exist in respect of all offences, committed by all persons and not merely in respect of an unlicensed possession of arms. To start with the presumption that the concealment is with the intention referred to in section 20 is to rewrite the law. The law is not that a person is prima facie guilty under section 20 and would be guilty under section 19 (f ) only on his showing that be did not intend to conceal his possession of the arms, it is otherwise. Some kind of concealment of the possession is contemplated by the Legislature because as I said earlier, it would be monstrous for it to lay down that a person keeping in his possession unlicensed arms must keep them exposed to the public view lest he should render himself liable to a severe penalty. The intention mentioned in section 20 has to be proved by the prosecution though it will usually be proved from circumstantial evidence. But there must be circumstances from which it can be presumed, the Court cannot start with assumption of the intention fronr the mere circumstance that the arms are not exposed to the public view. The Legislature has laid down the onus of proving the special intention on the prosecution and the prosection, cannot be disburdened of the onus. That something more than ordinary concealment which is natural and to be expected= of every criminal is clear from a number of authorities. It was the diffculty of distinguishing between the ordinary conceal--ment and the special concealment sought to be punished under section 20 that led some Courts to the view . That section 20 is-- meant to punish only concealed exports and imports of arms."
12. This case was followed in Kanhaiyalal v. State (I)---wherein it was held that the mere fact that an unlicensed firearm--wrapped up in handkerchief was recovered from the pocket of the accused without any additional circumstance would not bring his case within the ambit of section
20. In the same judgment it was--further observed as follows ---.- "I agree with the view taken in Udham Singh's case AIR 1915 Lah. 193 that the mere fact that a fire- arm is recovered from the pocket of the accused without any additional circum. Stance would not bring the case within the ambit of section 20= of the Arms Act. In other words, it cannot be presumed against him simply because a revolver is found in his pocket that he had an intention to conceal it from the gaze of a public servant.
Even those persons who hold licences to carry arms generally keep pistols and revolvers in their pockets and it is not usuaty for them to exhibit them openly in a belt like a police or military
(1) AIR 1961 Raj. 63 officer. It is contended;by learned Assistant Government Advocate that the accused had wrapped the pistol in a handkerchief and this fact indicates his intention to conceal the pistol. To my mind, this contention is not tenable.
Most of the people keep the revolver either in a leather-bag or in a cloth-bag in order to keep it protected from dust etc. Simply because the accused had put a handkerchief on the revolver, it would not be proper to presume that he had no other intention but to conceal it from the eye of a public servant. I do not, therefore, agree with the learned Sessions Judge about the presumption which he has raised under section 20 of the Arms Act."
It would be seen from these decisions that each particular case has to be considered on its own facts, and no hard and fast rules can be laid down. In this connection, I may with advantage refer to the case of Abdul Wahid v. Emperor (l) wherein the appellant was alleged to have been carrying a chhavi concealed in his loin cloth. Fforde, J. Observed as follows :- "In every case it is a question of fact whether the person found in possession of a concealed weapon is carrying the weapon in such a way as to indicate an intention to bide the article from the classes of persons referred to in section 20. 1 am only concerned with the facts disclosed by the evidence in the case before me, and it seems to me that the fact that a person is concealing a weapon while he is on a railway platform must indicate an intention to conceal that weapon from inter alia railway officials who are about that platform. I am in complete agreement with the view adopted by Addison, J. In Chet Singh v. Emperor AIR 1926 Lab. 262=7 Lab. 65 that section 20 is not confined, as has been held by Scott-Smith, J. And Kensington, J., to cases where the import or export of arms is attempted. It seems reasonably clear from the sections 19 and 20, Indian Arms Act, that the matter is not confined as held by those two learned Judges. In my judgment upon the circumstances of this caso as proved, the appellant has been rightly convicted under section 20 of possessing a chhavl in such a manner as to indicate an intention that his possession may not be known to any person employed on a railway: It was also held by Abdul Qadir, J., in the case of Sher AU v. Emperor (2) that each case of concealment of arms must be decided on its own facts.
Similarly in the cases of Khem Singh v. Emperor (3), Jogendia Mohan Guha v. Emperor (4) and Ganga Prasad v. Emperor (5), it was, if 1 may say so with respect, very rightly held that the question whether specific intention as indicated In section 20 of the Act exists in a particular case or not is a pure question of fact and depends upon the circumstances of each case.
(1) AIR 1928 Lab. 110 (2) AIR 1923 Lab. 79
(3) AIR 1914 Lab. 591 (4) AIR 1933 Cal. 516
(5) AIR 1933 Pat. 493
13. Judged in the light of these principles, it is obvious in the present case that the revolver recovered from the person of .The appellant was stolen from the house of P. W. Mahmoodul Hassan where the appellant was staying at or about the time of its theft. In the F. I. R. Exh. 5, lodged by P. W.
Mahmoodul Hassan on 12-2-1966 the number and the particulars of the stolen revolver were mentioned and they tallied with the particulars of the revolver recovered from the appellant on 24- 6-1967 which were mentioned in the lllashirnama Exh.
7. The appellant had also concealed the revolver in the fold of his trousers although he could have kept it in his shirt pocket. The appellant was an absconder and was seen coming from the side of Tando Adam Railway Station at about 12 mid-night.
14. Moreover, as I have stated above under section 14 of the Ordinance intention such as was necessary under section 20 of the Act is not necessary. All that is required is that irrespective of the intention of the accused, the unlicenced arm may be concealed In such a manner that such act is not likely to be known to any public servant. It is obvious that if a revolver is concealed !n the fold of trousers, it is not likely to be seen by anyone. In this particular case the revolver was also stolen property and police was on look out for the thief. In view of all these circumstances there can be no doubt whatsoever that the appellant has been rightly convicted under section 14 of the West Pakistan Arms Ordinance. Th.- sentence of R. I. For three years also does not appear to be excessive. I would, accordingly dismiss this appeal.