1. This appeal is directed against the judgment, dated 23-1-1989 passed by the learned Fifth Additional Sessions Judge, Larkana whereby the appellant was convicted and sentenced to undergo R.I. For two years and fine of Rs.1,000 or in default to undergo further R.I. For one month more.
2. The facts of the case are that, the appellant was already in custody of P.S. Dhamra when on 18-6- 1984 he was interrogated by S.I. Kadir Bux Rind (S.H.O.) regarding weapon of offence used in the main offence under section 302, P.P.C. The appellant showed his willingness to produce the weapon, as such he led the police party to his house situated in village Vikio Sangi, Taluka Larkana and from the eastern side of the courtyard from under a hedge, he produced a Chhura which was secured by the police under a Mashirnama in presence of Mashirs H.C. Gaibi Khan and P.C. Abdul Majeed. After the recovery, the police party alongwith the appellant came back to the police station where S.H.O. S.I. Kadir Bux Rind lodged the F.I.R. Crime No.66/84 under section 13-E Arms Ordinance.
3. After the usual investigation the challan was submitted in the Court and the case came up for trial before the learned Fifth Additional Sessions Judge, Larkana. The trial Court framed the charge (Exh.2) against the appellant for having committed an offence punishable under section 13-E Arms Ordinance, to which the appellant did not plead guilty and claimed to be tried.
4. At the trial, the prosecution examined P.W.I Qadir Bux Rind, his deposition is Exh.4. He produced Mashirnam8 of recovery Exh.4/A and F.I.R. Exh.4/B. The second witness examined is P.W.2 Gaibi Khan, his deposition is Exh.5. Thereafter the prosecution closed its side.
5. The statement of the accused was recorded as Exh.8, he denied the allegations, neither wanted to examine any defence witness nor wished to be examined on oath. At the conclusion of the trial, the appellant was convicted as already mentioned hereinabove.
6. The prosecution case rests on the evidence of two witnesses. P.W.1 Qadir -Box Rind is the seizing Officer. In his deposition he states that he interrogated the accused in the murder case, he showed his willingness to produce the Chhura used in the crime. He led the police to his house in village Vikio Sangi, Taluka Larkana and from under a hedge he produced the Chhuri which was seized under a Mashirnama in presence of H.C. Ghaibi Khan and P.C. Abdul Majeed. He then came back to the police station where he lodged the F.I.R. Of this case. In his cross-examination, he states they had gone in a Taxi. They had not seen the inmates of the house. They had seen many persons and some of them were asked to act as Mashirs but they refused, therefore, police officials were made Mashirs. He denies to have falsely implicated the appellant or foisted the Chhuri.
7. The second witness is P.W.2 Ghaibi Khan. He also states that on interrogation accused led police to his house at village Vikia Sangi and from inside he produced Chhuri before the police, which was secured by S.H.O. Under a Mashirnama which was signed by them. In his cross-examination he states that they left the police station at about 11-30 a.m. They had gone in a Taxi. It might be that the villagers had gathered over there, but he does not remember. Inmates of the house were not there. He denies that he is deposing falsely or that accused had not produced the Chhuri.
8. I have heard Mr. Samiullah Qureshi for the appellant and Mr. Zawar Hussain Jafferi, learned AA.-G.
9. For the State. The latter has supported the conviction of the appellant.
10. Mr. Samiullah Qureshi states that in the present case witnesses are police officials though independent witnesses were available, therefore, for the purpose of securing the Chhuri the provisions of section 103, Cr.P.C. Have been violated.
11. I am afraid this argument is not tenable. The seizing officer P.W.1 Qadir Bux Rind has explained that he tried to obtain independent witnesses but none was prepared to act as a Mashir, therefore, he had no other alternative but to make the police officials as Mashirs.
12. However, I have noticed a legal flaw in this case which vitiates the conviction of the appellant.
13. The appellant has been charged under section 13(e) of the Arms Ordinance, 1965. The charge under section 13(e) is sustainable only if the I violation of section 9 is proved. In other words for the violation of section 9, the punishment is provided by section 13(e). Therefore, it is incumbent upon the prosecution to conclusively prove the violation of section 9.
14. Now the requirement of section 9 of the Arms Ordinance is two--fold:--
(a) a person is found in possession of arm/arms.
(b) it is without a licence.
15. In the present case there is no evidence whatsoever to show that appellant was ever asked if he has a licence for the alleged Chhura or not. In this regard the charge framed by the Court, the evidence of the witnesses, the statement of the accused, all are completely silent and at no stage any such question was at all put to the accused. In these circumstances the appellant has been precluded from giving an explanation, as such the appellant has not violated the provisions of section 9, consequently his conviction under section 13(e) of the Arms Ordinance is not sustainable.
16. In this regard I am supported by a D.B. Decision of this Court, reported in 1972 P Cr. L J 165 and the relevant portion is as under:-- "It goes without saying, that keeping of a gun by itself is not an offence. It becomes an offence only when some body in possession of the same does not have and cannot produce a licence therefor.
17. 1t is also, an axiomatic 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 conviction would not be sustainable."
18. Resultantly, this appeal is allowed. The conviction and sentence of the appellant are set aside and he is acquitted of the charge.
19. The appellant is on bail, his bail bond stands discharged.
20. N.H.Q./A-1234/K