Agha Ali Hyder, J.--The appellant was convicted by the learned Additional Sessions Judge, Jacobabad, for an offence under section 13-E of the West Pakistan Arms Ordinance of 1965, and sentence to undergo R. I. for two years. Aggrieved by the judgment of conviction and sentence, he has come in Appeal.
2. The prosecution story is that, on 26-4-1966, the appellant came to be arrested from his village in connection with a murder case. It is stated that he had volunteered to produce a gun. He had taken the police party inside the house and produced a . 12 bore single-barrelled gun from the roof.
As the appellant could not produce any licence, a case was registered against him under section 13-E, of the Arms Ordinance, which came to be challaned on 13-5-1966.
3. The appellant in his statement denied the allegations made against him.
4. Mr. Azizullah Shaikh, learned counsel for the appellant, did not advance any argument in this appeal presumably because the appellant had already undergone the sentence, which was concurrent with the sentence awarded in the main case. However, it is to be noted that the S. H. O., namely, Imam Din, did not choose to state that he had asked for the production of the licence. It is true, that Bagh the Masftir has deposed that the appellant, never produced any licence, but he need not have done it without any demand for the same. What is more no question had been put to the appellant in his statement at the trial or for that matter at the Court of Inquiry.
It goes without saying, that keeping of a gun by itself is not an offence. It become an offence only when some body in possession of the same does not have and cannot produce a licence therefor.
It is also an exiomatic principle of law, that if a question which weighs with the Court for the determination of guilt is not put to the accused and he is precluded from giving an explanation for the same, it must be totally ruled out of consideration. As the appellant was not asked to produce the licence and as no question about it was put to him at the trial under section 342, Cr. P. C., the con viction would not be sustainable. After all, it is, for the prosecution to establish their case, which cannot be said to have been done.
5. In this view of the matter, we will set aside the conviction and sentence and allow the Appeal. .