' The material facts culminating in this application under section 561-A, Cr.P.C. Briefly, are that applicant Choudhry Muhammad Ashraf who is a businessman was staying in Mehran Hotel Karachi with his nephew Choudhry Naeem. He had to leave for Islamabad to participate in the death anniversary of his mother. He, therefore, left his nephew Choudhry Naeem and his luggage in the hotel with promise to return after two days. His stay at Islamabad, was, however, delayed, with the result that Choudhry Naeem also proceeded to Islamabad to join him. Choudhry Naeem carried the luggage belonging to applicant without knowing that it contained his licensed revolver.
When the luggage was kept on the screening counter the revolver was detected by the officials of Airport Security Force. Out of fear Choudhry Naeem did not claim the baggage and he proceeded to Islamabad, where he apprised the applicant about the incident. In the meanwhile on 3-2-1988 a case under section 13-D of the Arms Ordinance, 1965, was registered at Police Station Airport against unknown passenger (Crime No,24 of 1988). The applicant contacted his friend, namely, Raja Muhammad Arif at Karachi, on telephone who made enquiry about the baggage at Airport Security Force Control Room at Terminal No,3. The police suspected him and he was taken into custody. Raja Muhammad Arif contacted the applicant on telephone who alongwith Choudhry Naeem came to Karachi and narrated the above facts. Accordingly Raja Muhammad Arif was released under section 169, Cr.P.C. And Choudhry Naeem was prosecuted for the offence under section 13-D of the Arms Ordinance, 1965. The present applicant was also sent up to stand trial for the offence under section 16(b) of the Arms Ordinance, 1965. During the pendency of the case the applicant applied for acquittal under section 249-A, Cr.P.C. But his prayer was refused by S.D.M.
Airport Karachi East on 20-2-1989, with the following order:- 'Defence Advocate and Assistant Attorney present. Heard both at length. The application of defence advocate under section 249-A, Cr.P.C. Is not supported with solid arguments presented by learned defence advocate. I, therefore, reject this application as premature since no charge has been framed against accused. The defence advocate is advised to move afresh when charge is framed and at least two witnesses have been examined."
2. It is in these circumstances that the present application for quashment of proceedings pending against the applicant is filed.
3. I have heard Mr. Khawaja Naveed Ahmad, learned counsel for applicant and Mr. K.M. Nadeem, learned AA.-G. For State. The latter has supported the application made under section 561-A, Cr.P.C.
For quashment of proceedings pending against the applicant.
4. Section 249-A, Cr.P.C. Provides that nothing in Chapter XX of the Code of Criminal Procedure, 1898, shall be deemed to prevent a Magistrate from acquitting an accused at any stage of the case if after hearing the prosecutor and the accused and for reasons to be recorded, he considers that the charge is groundless or that there is no probability of the accvsed being convicted of any offence. Order accordingly. On a plain reading of this section it is clear that a Magistrate has got powers to acquit the accused even if no witnesses are examined. The word `groundless' used in this section is not capable of any precise definition. It, however, means when there are no good grounds for charge. If acting judiciously the Magistrate comes to the conclusion that no criminal offence is made out he can acquit the accused under this section even before the charge is framed.
5. Section 16(b) of the Arms Ordinance, 1965, provides that:-- "Whoever--
(b) delivers any arms, ammunition or military stores into the possession of any person without previously ascertaining that such person is legally authorised to possess the same, shall be punished with imprisonment for a term which may extend to three years or with fine, or with both: Provided that if such offence is committed in respect of any fire-arms, military stores or ammunition, the imprisonment with which the offender shall be punished shall not be less than one year."
6. On the, face of the record there was no delivery of revolver by the applicant to his nephew Choudhry Naeem. Again the delivery as contemplated by section 16(b) of the Arms Ordinance, 1%5 should be a delivery giving the person control over the arms and authority to use it as an arm. The possession of revolver by Choudhry Naeem for carrying it to Islamabad in the luggage of applicant was without mens ma'. The case of re: Avidi Veerasami, reported in AIR 1940 Mad. 257, is relevant in a situation like this. In Hassan Khan v. The State reported in PLD 1%7 Pesh. 103, Faizullah Khan, J. (as he then was) observed:- "To bring the case under the mischief of clause (b) there must be legal evidence to prove that the licensee had voluntarily delivered the fire-arm to a person who was not authorised to possess the same, or that he (licensee) had voluntarily permitted him to take into possession the firearm.
Again, the word 'possession' within the meaning of the Ordinance on account of judicial interpretation has acquired special meaning and it would not cover the case of temporary possession without any intention to use the weapon, in that in such, a situation the licensee would still be deemed to be in possession. The deciding factor under clause (b) is whether the possession was delivered voluntarily to the unauthorised person with intention to use the fire-arms."
7. While examining the question of possession in the circumstances indicated above, Faizullah Khan, J reiterated his earlier views in the case reported as the State v. Noor Haider PLD 1967 Pesh.
182 in the following words:-- "Since the respondent is the nephew and servant of Saifur licensee and as he was carrying the licensed shot-gun of his master at his bidding to his village, no offence whatever under the Arms Ordinance has been constituted."
8. Though ordinarily the High Court will not interfere at an interlocutory stage of a criminal proceeding in a subordinate Court, it will certainly interfere in order to prevent the harassment of a person who is prosecuted on a charge which on the face of it is groundless. The test to be applied is to see whether the allegations even if taken at their face value do not constitute an offence as alleged. The circumstances enumerated above call for an interference by this Court to prevent the abuse of process of law.
9. Mr. K.M. Nadeem, learned A.A.-G. While supporting the prayer of applicant has stated that there is also a report in police papers under section 168, Cr.P.C. Recommending cancellation of case on the ground of mistake of facts.
10. In the result the application made under section 561-A, Cr.P.C. By the applicant is accepted and the proceedings pending against him in the Court of D A.C. And S.D.M. Airport Karachi (East), under section 16(b) of the Arms Ordinance, 1965, are hereby quashed.