' This Criminal Appeal against acquittal arises from the judgment of learned Magistrate 1st Class, Wazirabad, whereby he on 31-5-1984 acquitted Muhammad Aslam respondent of the charge under section 13 of the Arms Ordinance, 1965.
2. The allegations against him were that on 31-10-1983 he was found keeping unlicensed carbine with him near Mor Haripur Band of P.S. Saddar, Wazirabad. He denied the allegations and claimed to be tried.
3. To prove its case ,prosecution produced 3 witnesses namely, Muhammad Khan P.W.1, Rehmat Ullah P.W.2 and Syed Saghir. Hussain Shah, ASI, P.W.3. They deposed that at the time of his arrest in the connected murder case, a carbine was recovered from the possession of the petitioner on his personal search.
4. When examined under section 342, Cr.P.C., he denied the possession of unlicensed carbine. He did not produce any evidence in defence.
5. The learned Magistrate while disbelieving the P.Ws acquitted the respondent of the charge vide, his judgment dated 31-5-1984 on the ground that Muhammad Khan P.W.1 and Rehmat Ullah P.W.2 being brother and nephew respectively of the deceased of the connected case, were not reliable and no independent person from the vicinity was produced by the prosecution.
6. Learned Assistant Advocate-General submits that the reasons given by the trial Court for the acquittal of the accused are untenable inasmuch as, the evidence of Muhammad Khan P.W.1 and Rehmat Ullah P.W.2 could not have been rejected on account of mere relationship with the deceased of the connected case and that Syed 3aghir Hussain Shah, ASI, P.W.3 was also a dependable witness.
7. I have considered the submissions made by the learned counsel with care and have examined the evidence produced by the prosecution. {{PAGE CUT}} I feel that the evidence accepted at its face value no case of keeping unlicensed carbine is made out, inasmuch as, the P.Ws. Have no stated that the respondent had no licence to keep carbine. The relevan provisions of law may be quoted advantageously:- S.13. "Whoever commits any of the following offences, namely:-
(a) sells, or keeps, offers or exposes for sale, any arms, ammunitioi or military stores, or undertakes the repairs of any arms ii contravention of the provisions of section 4;
(b) ...............................................................
(c) ...............................................................
(d) ............................................
(e) has in his possession or under his control any arms, ammunitia or military stores in contravention of the provisions of sectio S.4(1) "No person shall sell, or keep, offer or expose for sale any arms, ammunition, or military stores, or undertak the repairs of any arms, except under a licence and'i the manner and to the extent permitted thereby."
S.9. "No person shall have in his possession or under his contrc any arms, or any ammunition or military stores, except unde a licence and in the manner and to the extent permitter thereby."
' From the examination of the relevant provisions of law reproduced above, it is very much .Obvious that possession similiciter o an arm is not an offence punishable under the Ordinance. A perso can be convicted when it is proved that he had no licence to keel the arm or he was possessing "unlicensed arm". The want of licenc is main ingredient of offence punishable under section 13 of th Arms Ordinance, 1965. That being the position, I am of the vies that the conviction of the respondent on the basis of evidence of record is not possible under the law. The onus was on the prosecutioi to prove not only the possession of arms by the petitioner but als! That he had no licence to keep the same. Since prosecution has faile to prove that the petitioner had no licence to keep the carbine therefore, there is no option but to dismiss this appeal. Orde accordingly.