1. ' This appeal is directed against judgment dated 1-4-1990 passed by learned Sessions Judge, Kalat at Mastung, whereby appellant was convicted under section 13-E Arms Ordinance, 1965 and sentenced to undergo R.I.For 3-1/2 years.
2. Facts briefly stated are that on 12-9-1989, police authorities received an information about appellant's indulging in repairing unlicensed arms. Consequently shop of appellant located at Quetta Mastung Road was raided and following articles were alleged to have been recovered from there:--
(i) One broken revolver .32 bore with plastic handle (Pakistan made) (Article A).
(ii) One revolver .32 bore with black handle (Darra made) (Article B).
(iii) One pistol .22 bore (Star) with Brown handle with empty magazine (Article C) (broken).
(iv) One broken revolver 354 wooden handle with cover (Article D).
(v) One broken rifle 7-M.M. (German make) (Article E).
(vi) One barrel of 7-M.M. With body belt (Article F).
(vii) One barrel 308 with belt (Article G).
2. (viii)One broken barrel of 7-M.M. (Article H).
(ix) One broken barrel with trigger of shotgun (Article I).
(x) One barrel of shotgun (Article K) (broken)
(xi) One belt rod with spring Kalashinkov No, 1561 (Article L).
(xii) Barrel cover cone welded and broken (Article M).
3. ' F.I.R. No, 58 of 1989 under section 13-D Arms Ordinance was registered with Police Station, Mastung.
4. However, after completion of investigation appellant was sent up for trial before learned Sessions Judge, Kalat at Mastung. The prosecution has examined Head Constable Abdul Qadir and Tajamul Hussain, Station. House Officer, Mastung and Investigating Officer Sher Zaman to substantiate recovery of case-property from the possession of appellant. Whereas in his statement under section 342, Cr.P.C. Appellant has generally denied all the allegations. He explained that during raid only one licensed shotgun was secured by the police authorities from his possession. Statement on oath of appellant under section 340(2), Cr.P.C. Was also recorded wherein he produced permit authorising him to carry out business of repairing arms at Mastung. He categorically denied recovery of the articles from his possession. In the cross-examination when articles were put to him he said that Articles 'A' to 'M' were merely scrap and compeletly unserviceable damaged pieces/implements. Appellant also adduced two defence witnesses namely (i) Abdul Aziz and (ii)
5. Bahadur Khan. They have tried to show that nothing incriminating was recovered from possession of appellant when his shop was raided. Learned Sessions Judge, Kalat on appraisement of evidence found appellant guilty for the offence under section 13-D Arms Ordinance and by means of judgment dated 1-4-1990 sentenced him to undergo R.I. For 3-1/2 years. Present appeal was filed on 5-4' 1990 challenging said conviction.
6. ' Mr. Abdul Wasey learned counsel for appellant emphatically argued that search was conducted in violation of section 103 Cr.P.C. Because no independent witness was associated by the raiding party at the relevant time. He submitted that witnesses being police officials were deeply interested. It was also argued that there exist material contradictions in the statements of prosecution witnesses which have been unjustifiably ignored by the trial Court. Learned counsel canvassed that Articles A to M were merely scrap and did not constitute any arm within the definition of section 3(1)(b) of Arms Ordinance. Referring to statement of P.W. 1 it was urged that prosecution has failed to show that possession of any such article needed licence or violated law. It was alternately argued that appellant is an old man of 70 years and single bread-winner of the family, therefore, keeping in view circumstances the sentence was excessive.
7. ' On the other hand Mr. Ifitkhar Muhammad learned Advocate-General vehemently opposed the appeal. It was contended that at least Articles A and D were fully covered by the definition clause contained in section 3(1)(b) of the Arms Ordinance. He also supported the quantum of punishment awarded by the trial Court in this case. It was, however, disputed that appellant had permit for repairing licensed 'Arms'. However, he found difficulty to support prosecution stand in respect of remaining implements.
8. ' I have considered arguments addressed by learned counsel for parties. Or better appreciation of respective stands, it would be worth-while to have brief resume of evidence available on record.
9. P.W. 1 Abdul Qadir stated that above-detailed articles were recovered from the possession of appellant when his shop located at Quetta-Mastung Road was raided on 12-9-1989. During cross- examination this witness unambiguously admitted that articles exhibited in the Court (case property) was not serviceable. He deposed that recovered articles were merely scrap. This witness has mentioned that articles were sealed into parcel in his presence; but trial Court has made specific note that said articles were produced in two unsealed bags which neither contained any mark nor bore signature.
10. ' P.W. 2 Tajamul Hussain has merely stated about recovery of articles 'A' to 'M' from the possession of appellant. He has not talked about nature or character of these articles. Whereas appellant has denied the recovery. It was explained by him in the statement on oath that he was repairing licensed shotgun of Haji Khan when police came to his shop and took it away. He asserted that defence witnesses were sitting with him at that time. A permit showing valid authorisation to carry out repair of licensed arms was also brought on record. Genuineness and validity of this permit has not been challenged by prosecution. Appellant during his cross-examination replied that Articles A, C and K and all others were not serviceable. However, he had vaguely mentioned that Exhs. A and D are revolvers. Learned Advocate-General from this portion of his statement attempted to suggest that these two articles be deemed serviceable. Both the defence witnesses have tried to show that merely licenced gun was taken into possession by raiding party from the appellant. On thorough evaluation, apparently statement of P.W. Abdul Qadir is very important and crucial. He has maintained that all the Articles (`A' to 'M') were unserviceable and merely scrap. P.W. Tajamul Hussain S.H.O. Who was examined later has not even explained character of nature of weapons.
11. Primarily prosecution is obliged to satisfactorily explain that recovered material factually falls within the definition of Arms or Ammunition as contemplated by provisions of West Pakistan Arms Ordinance, 1965. It is cardinal principal of criminal law that burden of proof is always on the prosecution and unless good prima facie case specifically establishing involvement of the accused for commission of certain offences is established, conviction cannot be recorded. Besides accusation cannot be based merely on the lacunas or deficiency of the defence but on the strength of prosecution evidence. Therefore, in the light of available evidence it has to be seen (i)
12. Whether articles were recovered from the possession or control of appellant, and (ii) whether such recovery constitutes violation of law warranting his conviction.
13. ' It may be seen that prosecution version suggests that case property was unserviceable material mainly scrap or unrepairable stray parts of weapons. Said portion of evidence has neither been explained nor challenged by the prosecution; rather appellant also in his statement confirmed this aspect. In the given circumstances of the case objection about non-adherence with requirements of section 103, Cr.P.C. Is of no avail. From the unchallenged portion of evidence recovery of case property from appellant's possession or control is duly established. However, it has to be seen whether possession thereof factually constituted an offence punishable under section 13-E Arms Ordinance, 1965. As mentioned earlier prosecution witness Abdul Qadir has maintained that case property was merely scrap and unserviceable parts of weapons. Indian High Court in case State v.
14. Muhammad Ali (AIR 1955 Allahabad. 700) has discussed that if firearm does not lose its specific character and same continues to fall within the ambit of definition resulting in violation for keeping the same without licence. Simultaneously it was observed that primarily prosecution had responsibility to substantiate that weapon or any part thereof was really serviceable or repairable.
15. It would be profitable to reproduce below relevant portion from reported judgment (AIR 1955 Allahabad. 700).
16. "In this decision learned Judge of this Court observed that judging whether a particular weapon is a firearm or not the test is not whether that particular weapon is serviceable at the time but whether it has lost its specific character and ceased to be a firearm. This observation was based upon a Full Bench decision of the Madras High Court in 'Queen-Empress v. Jayarami Reddi', 21 Mad 360 (FB)(B). We are in agreement with the view expressed above, but we do not find that this helps the State counsel in the case.
17. ' It is true that a weapon does not cease to be a firearm if it has not lost its specific character but the onus of proving that a weapon has not lost its specific character is upon the prosecution.
18. Where doubts are entertained about it, it is necessary for the prosecution to` satisfy the Court that the weapon still possess its specific character. In this case the trial Court felt a doubt and even gave an opportunity to the State prosecutor to satisfy him, yet this opportunity was not availed of by the State prosecutor."
19. ' Similarly factum of unserviceable nature of weapon and character of the fire-arm has been discussed in Sawami Dayal v. State (AIR 1953 Allahabad 353): ' The first point argued by him is that the pistol itself was not quite fit for use and, therefore, it could not be an "arm" within the definition of that term in S. 4 Arms Act. He invited my attention to the statement in the recovery list that the handle of the pistol was partly rotten and both its triggers were out of order and a string was tied to the barrel in two places. The finding of the trial Court regarding the condition of the pistol is that it was partly broken and unworkable. Under the above circumstances his argument was that admitting that the pistol was recovered, it had ceased to be an arm under the Arms Act. The evidence indicates that the pistol had not lost its character as pistol. With a certain amount of repair it could easily be used as an arm. Under these circumstances, I am of opinion that the article recovered should be considered to be an article for which a licence was needed and the possession of the same would be punishable under the Arms Act.
20. ' In this connection the learned counsel relied strongly on Queen v. Sidappa, 6 Mad. 60(FB), a Full Bench decision of the Madras High Court, in which it was laid down that a gun rendered unserviceable by the loss of the trigger does not fall within the definition of "arms" in section 4 Arms Act, 1878, and that the possession of such a weapon without a licence is no offence. This ruling would no doubt to a certain extent support his contention. I, however, find that the law laid down in this ruling was subsequently reconsidered by a Full Bench of the Madras High Court reported in Queen-Empress v. Jayarami Reddi, 21 Mad. 360(F.B.) and the view taken in the previous case was dissented from. According to the view taken in this case the test in such a case is not so much whether the particular weapon is serviceable as a firearm but whether it has lost its specific character and has ceased to be a firearm. I respectfully agree with the view expressed in this ruling. If a contrary view were to be held, it will enable any person wanting to circumvent the provisions of law to take out some small part like a screw from an arm and keep the arm in his possession and it would not be possible to convict him merely on the ground that the instrument itself was; unworkable at the time."
21. ' Single Bench of Madras High Court in his judgment reported as Public Prosecutor v. Kandikatla Nagabhushanam alias Bhushanam (AIR 1943 Mad. 661) has held; that possession of unserviceable weapon which after necessary repairs could be used as firearm essentially required 'licence' else such possession would constitute offence. In another matter Queen-Empress v. Jayarami Reddi (Indian Law Reports Vol.XXI p.360) Full Bench of Madras High Court ruled that if weapon has not lost its character and could be utilized after repairs same would fall within the definition of 'Arms'.
22. Relevant observations are also reproduced below:-- "Would you contend that each portion or a part of a gun was within the definition of "arms"? If it were absolutely unserviceable, I would no contend that it were so, but it is otherwise, if it can be rendered serviceable. The decision in The Queen v. Siddappa (1) defeats the policy of the Act and places an unreasonable construction upon its terms: If that decision be maintained, it would be open to anybody possessing a revolver to remove the screw of the trigger and thus render it unserviceable as a weapon and thereby to evade the provisions of the law. Moreover, in the present case, the accused purchased with the revolver a supply of ammunition and in respect of this he is liable (DAVIES, J.--He has not been charged with committing an offence as to the ammunition). That is true, but the circumstances show the intentior with which the revolver was purchased.
23. ' Mr. N. Subramanyam for the accused: It has been found, as a matter o fact, that the revolver was unserviceable. (SHEPHARD, J.---What ha the question of its being serviceable to do with the matter? Is it not a gun?) It ceases to be a gun when it cannot be used as such. In its present state it is not a gun. The only possible test is that stated in The Queen v. Siddappa (1). Any other test would bring within the purview of the action arms which were kept as relics or curiosities.
24. ' JUDGMENT.---We think there is no doubt that the revolver in the case is a firearm within the meaning of the Act. The question is not so much whether the particular weapon is serviceable as a firearm, but whether it has lost its specific character and has so ceased to be a firearm. In referring to the serviceable character of the arm we think the decision in The Queen v. Siddappa (1) was not correct and that the proper test was lost sight, of. Whether in any particular case the instrument is a firearm or not, is a question of fact to be determined according to circumstances. We answer the ".
25. ' Thus considering ratio decided in all the afore quoted reports and relevant provisions of law; it is quite obvious that if any firearm or a part thereof is rendered unserviceable for the time being, but does not lose its real character and possibility for repairing it, exists; same would certainly fall within the purview of 'Arms' specified under section 3(1)(b) of West Pakistan Arms Ordinance, 1965.
26. Now examining the implements/articles recovered in the instant case on the anvil of principle discussed above, it may be seen that even according to prosecution Article 'A' and Articles 'C' to 'M' are merely scrap being unserviceable and completely un-repairable. Therefore, its possession would not constitute any offence. Nevertheless Article 'B' on the available record appears to be merely unserviceable. Learned defence counsel attempted to emphasize that prosecution ought to have established that firearm which was apparently unserviceable, could at all be utilized after necessary repairs. He, therefore, canvassed that appellant was at least entitled to benefit of doubt.
27. I am afraid that normal principle of general law would not be attracted in the peculiar circumstances of this case. In my opinion once recovery of unserviceable firearm is established from the possession of accused in that event neither prosecution is completely absolved from showing that said weapon could be repairable, nor simultaneously accused can be exonerated from his responsibility of explaining said implements/instruments being totally unrepairable thereby having lost its character justifying its possession without licence. However, record does not show that Article 'B' was not repairable. Accordingly, considering the cumulative effect of total evidence on record, and principle of law discussed above, I am inclined to observe that 'possession of Article B' without licence clearly violated the law. It was then suggested that appellant being holder of valid permit for repairs laboured under erroneous impression about possessing such type of broken implements/or parts. Obviously no such latitude could be extended to appellant.
28. However, considering peculiar circumstances, possibility of wrong notion about possessing broken implements, and existing nature of Article 'B' it would be fair to take lenient view against appellant.
29. ' From the above discussion, while maintaining conviction only for the possession of unserviceable revolver 'Article B', I propose to reduce the sentence and hold that imprisonment for the period of SIX months shall meet ends of justice. Consequently, sentence awarded to appellant is reduced to rigorous imprisonment for Six Months. Appellant shall also have benefit of period, he remained as undertrial prisoner; within the purview of section 382-B, Cr.P.C.
30. ' With aforesaid modification of sentence appeal is dismissed.