' AJMAL MIAN, J.---This is an acquittal appeal, with the leave of this Court, against the judgment dated 24-9-1991 passed by a Division Bench of the High Court of Sindh in Criminal Miscellaneous Application No,223 of 1991 filed by the respondent under section 561-A, Cr.P.C. For 'quashment of proceeding then pending against him under sections 8, 9 and 13(d) of the Arms Ordinance, 1965, hereinafter referred to as 'the Ordinance', before the learned Judge, Special Court, Suppression of Terrorist Activities, Karachi, hereinafter referred to as 'the Special Judge', allowing the same and quashing the above proceeding.
2. Leave to appeal was granted to consider the question, whether provisions of section 10 of the Ordinance would be relevant for consideration in the disposal of the above case.
3. The brief facts are, that the respondent, pursuant to the F.I.R. Lodged on 25-8-1990 by Muzaffar Ali Kalwar, S.H.Q., Police Station Shahrah-e-Faisal, Karachi, was charged as under by the learned Special Judge: "I Nabi Sher Junejo, Judge, Special Court (Suppression of Terrorist Activities), Karachi, hereby charge you, accused Muhammad Akbar Samejo son of Muhammad Ibrahim Samejo that, you on 25-8-1990, at about 2-30 p.m. Opposite Drigh Road Railway Station, Shahrah-eFaisal Road, Karachi, were going armed with two M.P. 5/A-2 (automatic weapons) and three magazines alongwith 75 live cartridges, for which you had no licences. And thereby you committed an offence under section 8/9 read with section 13(d) of Arms Ordinance, 1965, and within the congnizance of this Court.
' And I hereby direct you that you be tried by this Court on the aforesaid charge."
' It seems that in support of the above charge, number of witnesses were examined by the prosecution but before the respondent was examined under section 342, Cr.P.C. He moved an application under section 249-A, Cr.P.C., before the learned Special Judge for quashment of the above proceeding, which was dismissed by an order dated 25th April, 1991. Thereupon, the respondent filed aforesaid Criminal Miscellaneous Application in the High Court of Sindh, which was allowed through the impugned judgment. After that, the State filed a petition for, leave to appeal, which was granted to consider the above question.
4. We have heard Mr. Abdul Ghafoor Mangi learned Additional Advocate-General, Sindh on behalf of the State and Mr. Shafi Muhammadi, Advocate who was permitted by this Court to argue on behalf of the respondent as he had appeared for him before the High Court and the respondent was not in a position to engage any other advocate.
5. Before dealing with the legal aspect, it may be pertinent to quote the factual aspect found by the High Court. The relevant portion of the impugned judgment reads as follows:-- "it is an admitted position that the arms secured from the applicant were licensed arms of Mr. Asif Ali Zardari, and this fact is also very clear from the challan submitted by Investigating Officer before the Court. It is also an admitted position that the applicant was driver of Asif Ali Zardari. He had gone to Airport to see Asif All Zardari off. The challan shows that the licences were recovered from the vehicle in question but it is the prosecution case that the same expired. However, there is no evidence as to when the licences had expired. The above facts have not been controverted to even by Mr. Muhamamd Zubair Qureshi, learned counsel for the State, therefore, we have to see as to what offence was committed by the applicant when he was only taking arms ammunition belonging to his master back to his house."
6. It may be pertinent to point out that the respondent was charged under sections 8, 9 read with section 13(d) of the Ordinance. It may be advantageous to reproduce the above provisions and also clause (e) of section 13, which read as under:-- ' Section 8: "Section 8. Prohibition of going armed without licence.--(1) No person shall go armed with any arms except under a licence and to the extent and in the manner permitted thereby.
(2) Any person so going armed without a licence or in contravention of its provisions may be disarmed by any Magistrate, Police Officer or other person empowered by Government in this behalf or by virtue of his office.
(3) Nothing in subsections (1) and (2) shall apply to a person carrying arms under a written authority issued in accordance with the rules."
Section 9: "Section 9. Unlicensed possession of arms, etc.--No person shall have in his possession or under his control any arms, or any ammunition or military stores, except under a licence and in the manner and to the extent permitted thereby."
Section 13: "Section 13. Penalty for breach of sections 4, 5, 8 to 11.--Whoever commits any of the following offences, namely:
(a) ................................................
(b) ................................................
(c) ................................................
(d) goes armed in contravention of the provisions of section 8;
(e) has in his possession or under his control any arms, ammunition or military stores in contravention of the provisions of section 9; (f)
(g)
(h) ................................................................. Or ' shall be punished with imprisonment for a term which may extend to three years, or with fine, or with both: ' Provided that the punishment for possession of an unlicensed fire-arm shall not be less than one year.
' Explanation.--Possession of fire-arm by a person licensed or authorised under this Ordinance to possess or keep such fire-arm, shall not, even after the expiry of such licence or authority, be deemed to be possession of an unlicensed fire-arm for the purposes of award of enhanced penalty under the proviso to this section."
7. A perusal of the above-quoted section 8 shows that it prohibits everyone going armed with any arms except under a licence and to the extent and in the manner permitted thereby. It also empowers Magistrates, Police Officers or other persons empowered by the Government in this behalf by name or by virtue of his Office to disarm any person who, in contravention of the provisions of subsection (1) of section 8 of the Ordinance goes armed without a licence. However, subsection (3) of above section 8 makes it clear that anything in the above two subsections shall not apply to a person armed under a written authority issued in accordance with the rules.
' It may also be noticed that section 9 contemplates that no person shall have in his possession or under his control any arms, or any ammunition or military stores except under a licence and in the manner and to the extent permitted thereby.
' It may also be pointed out that section 13 provides penalty for the breach of sections 4, 5, 8 to 11. It may further be noticed that clause (d) of section 13 deals with the contravention of section 8, whereas, clause (e) deals with the breach of section 9. The penalty for the contravention of the above provisions provided for is imprisonment for a term which may extend to three years or with fine or with both. It may also be observed that the proviso to the above section 13 provides that the punishment for possession of unlicensed fire-arm shall not be less than one year, wheras, explanation thereof provides that the possession of fire-arm by a person licensed or authorised under the Ordinance to possess or keep such arm shall not, even after the expiry of the licence or the authority, be deemed to be in possession of unlicensed fire-arm for the purpose of awarding enhanced penalty under the above proviso to the section.
8. It may be appropriate at this juncture to refer to section 10 of the Ordinance, which has been referred to in the leave granting order, which reads as follows: "Section 10. In certain cases arms to be deposited at police station or with licence dealer.--(1) Any person possessing arms, ammunition, or military stores the possession whereof, has, in consequence of the cancellation or expiry of a licensee or of an exemption or the death of the licensee or otherwise, become unlawful, shall without unnecessary delay deposit the same either with the officer incharge of nearest police station or at his option and subject to such conditions as Government may by rules prescribe, with a licensed dealer: ' Provided that where, within one month of the expiry of a licence an application for its renewal has been made by registered post or by hand, the retention by the holder of such licence of the arms, ammunition or military stores covered by the licence shall be deemed to be lawful until such time as the licence has been renewed or its renewal refused. . (2) When arms, ammunition or military stores have been deposited under subsection (1), the depositor, or in the case of his demise his legal heirs, shall at any time before the expiry of such period as Government may by rules prescribe, be entiled--
(a) to receive back anything so deposited the possession of which by him or his legal heirs has become lawful; and
(b) to dispose, or authorise the disposal, of anything so deposited by sale or otherwise to any person whose possession of the same would be lawful, and to receive proceeds of any such sale: ' Provided that nothing in this subsection shall be deemed to authorise the return or disposal of anything the confiscation of which has been directed under section 20.
(3) All things deposited under subsection (1) and not returned or disposed of under subsection (2) within the prescribed period therein referred to shall be forfeited to Government.
(4) (a) Government may make rules consistent with this Ordinance for carrying into effect the provisions of this section.
(b) In particular and without prejudice to the generality of the foregoing provisions, Government may by rules prescribe--
(i) the conditions subject to which arms, ammunition or military stores may be deposited with a licensed dealer, and
(ii) the period after the expiry of which things deposited as aforesaid shall be forfeited under subsection (3)."
' A plain reading of the above section indicates that it provides for deposit of the arms upon the happening of the events specified in subsection (1) which includes the expiry of the licence. It may also be pertinent to point out that the proviso to subsection (1) lays down that a licensee of a fire- arm, if within one month of the expiry of his licence, makes an application for renewal by registered post or by hand, the retention of the holder of such licence of the arms, ammunition or military stores covered by the licence, shall be lawful until such time as the licence has been renewed or its renewal refused.
' It may also be pointed out that subsections (2), (3) and (4) of section 10 of the Ordinance deal with the procedure about depositing of arms, etc.
9. Reverting to the above case, it may be observed that the High Court found that the arms which were seized from the respondent were licensed arms, belonging to respondent's empolyer Asif Ali Zardari, whom he had taken to the Karachi Airport and after seeing him off, the respondent was returning to his employer's house. The question arises, whether in the above factual background, the respondent can be said to have contravened above sections 8, 9 and 13 (d) of the Ordinance.
The above question has been subject-matter of judicial review for over a century. It will, therefore, be appropriate to refer the following case-law on the above question.
(i) Queen-Empress v Tota Ram and others ( 1894 XVI ILR 276), in which the facts were that the servant took his master's gun to a blacksmith for repairs. The licence of the master had expired d.
Inter alia, the servant was charged under section 19 of the Indian Arms Act and was tried and convicted. Burkitt, J. Quashed the above conviction against the servant and observed as follows: "As to Nathu, all that has been proved against him is that he was the servant of Tota Ram, and, as such servant, took the gun to Kalua for repairs. His case, in my opinion, clearly comes within the cases of Queen-Empress v. Alexander William and of Queen-Empress v. Bhure. In accordance with the judgment of this Court in those cases I am of the opinion that no offence has been committed by Nathu in simply carrying the gun from his master's house to the blacksmith for repair. I annul the conviction and sentence passed on him, and direct that the fine, if paid, be refunded."
(ii) Gharu Chandra Ghosh v. The King-Emperor 1913 XVII Calcutta Weekly Notes 979, in which the facts were that the petitioner was carrying a gun on behalf of his master with the licence to the Magistrate for the purpose of renewal of the licence. He was prosecuted for contravening section 19(6) of the Indian Arms Act, 1878. A Division Bench of the Calcutta High Court, while quashing the proceeding, pointed out that the case of the prosecution was not that the petitioner was possessing the gun with the object of using it nor it was urged that he used it at all.
(iii) Emperor v. Koya Hansji (1912 ILR 37 Born. 181) in which the facts were that the servant was sent by his master to fetch his licensed gun from an adjacent village, where he had left it while he was returning. The servant was caught and thereafter charged and convicted for the contravention of section 19 of the Indian Arms Act. A Division Bench of the Bombay High Court set aside the above conviction by holding that the servant was merely having temporary possession and, therefore, he had not contravened the above provision. Reliance was placed on the earlier cases decided by the Calcutta and Allahabad High Courts.
(iv) In re: Avidi Veerasami (AIR 1940 Mad. 257), in which a learned Single Judge of the Madras High Court set aside the conviction of a servant, who was found in possession of a licensed gun of his master. The explanation given by him was that he was merely carrying the gun to the house of his master under his orders,
(v) Kedar Nath and another v. Emperor (AIR 1941 Patna 209). In the above case the facts were that one Jamal Ahmad and Kedar Nath were friends. They had gone out for shooting with a gun which belonged to Kedar Nath. When they were returning at about 5-00 p.m., they were informed about the order under section 144, Cr.P.C. On account of communal riots, issued by the District Magistrate.
Kedar Nath stayed in the house of his friend Jamal Ahmad for that night but before 6-00 a.m. On the following morning, he had to leave for Patna for medical treatment as he was attacked with asthma. He left his gun and bedding in Jamal Ahmad's house with the intention to return shortly afterwards for them. It seems that during house search, the above gun was found in the house of Jamal Ahmad, who had no licence. Kedar Nath and Jamal Ahmad were convicted under section 21 of the Indian Arms Act. Upon reference made by the Sessions Judge, Gaya, the above convictions were set aside by a learned Single Judge of the Patna High Court. The learned Judge, after referring to the case-law, concluded as follows: "It is clear from the law laid down in all these rulings that possession of the gun must be deemed to have remained with Kedar Nath, though it was not actually in his physical possession, and if Jamal Ahmad was in possession of the gun, at all, which may be considered doubtful if he was unaware that it was within his house, then at the most the possession of Jamal Ahmad was on behalf of the licensee, Kedar Nath, and not on his own behalf. The learned Magistrate in his explanation upon the rule has referred to the special conditions prevailing at the time, the communal riot and the great danger that arms might be misused. The answer is that these circumstances are quite irrelevant When it come to deciding the legal question involved. Leagally, it is to my mind, clear that neither of these convictions was proper, and they cannot be sustained. This being so, I accept the reference in both cases, and set aside the convictions and sentences upon both Kedar Nath and Jamal Ahmad. The fines, which had been paid, must now be refunded."
(vi) Kashi Charan Paul v. The State (PLD 1965 Dacca 284), in which the facts were that the petitioner was convicted under section 19(e) of the Arms Act, 1878 for having been found in possession of arms without licence. His petition for making reference to the High Court failed before the Sessions Judge. Thereupon, he approached the Dacca High Court. A learned Single Judge of the above High Court on the basis of the finding by the Court below, that licensee of the gun in dispute, Prcm Chandra (who was brother of the petitioner) was himself present at the place of occurrence, held that temporary possession of the gun in presence of the holder of the licence, was not violative of the above provision, as it was not a possession as contemplated under section 14 of the above Act.
(vii) The State v. Ghulam Sabir (PLD 1967 Pesh. 53). In the above case the licensee, while riding a scooter, met with an accident with the result that his pistol and other articles scattered on the road.
His cousin collected the pistol alongwith the other articles. He was convicted for having possession of the pistol without licence, by the Magistrate First Class, Nowshera. The District Magistrate, Peshawar, made a reference to the High Court for enhancement of the sentence. A learned Single Judge of the erstwhile High Court of West Pakistan rejected the above reference and quashed the conviction by holding that possession of the pistol under the circumstances was deemed to be with the licensee though, because of unavoidable circumstances, he, was not in possession.
(viii) Hassan Khan v. The State (PLD 1967 Pesh. 103), in which the facts were that the petitioner had given his licensed shot gun to his brother Sikandar Khan with which the latter allegedly killed his co-villager Tagga Khan. However, upon trial the petitioner's brother Sikandar Khan was acquitted and it was found that he had not used the aforesaid gun. On the basis of the above factual finding, it was held by a learned Single Judge of the erstwhile High Court of West Pakistan that the conviction against the petitioner could not be sustained. It was pointed out that the word 'possession' employed in the Ordinance had acquired special meaning and it would not cover the case of temporary possession without the intention to use the weapon.
(ix) The State v. Raidool (PLD 1967 Pesh. 116). In the above case the facts were that a police party, while patrolling, sezied one automatic pistol and a bandolier containing 20 live cartridges of .22 bore from the respondent. The licence of the pistol, which was in the name of respondent's brother Raza Khan was also found with him. He was not a retainer under the licence. The respondent was charged and tried for contravening sections 9, 13 and 16-B of the West Pakistan Arms Ordinance, 1965. The District Magistrate recommended sentence of fine of Rs, 200 or in default four months' R.I.
The above reference was rejected by a learned Single Judge of the erstwhile High Court of West Pakistan.
(x) The State v. Noor Muhammad (PLD 1967 Pesh. 182), in which the facts were that the respondent was servant as well as nephew of Saifur the licensee of the shot gun. He was charged and tried. The reference made by the Magistrate for recording conviction was rejected by a learned Single Judge of the erstwhile High Court of West Pakistan. Reliance was placed on the cases of (1) Emperor v.
Lalman Tharu Supra (AIR 1937 Patna 347) and (2) Avidi Veerasami v. Crown (AIR 1940 Mad. 257). The following extract from the above first case, which was decided by a Division Bench, was quoted with approval: ' In the case of a licensed weapon a person who merely assists the owner of the weapon by carrying it for him or taking it somewhere for him may be said to assist his master in doing a perfectly legal act, for the master being the licensee is entitled to have the gun in his possession."
10. The proposition of law enunciated in the above case-law seems to reflect correct legal position.
In our view, temporary possession or control of a servant in the course of discharge of his normal duties, over his master's licensed fire-arm under the masters' order/direction, in the circumstances, which warrant such order/direction will not attract the above provisions of the Ordinance. However, if a servant without any justifiable reason is found in possession or control of a lecensed fire-arm of his master, he may render himself criminally liable though he may claim that his possession or control was temporary.
11. Adverting to the facts of present case, it may again be observed that the High Court on the basis of material on record found that the fire-arms secured from the respondent were licensed arms of the respondent's master Asif Ali Zardari who was going out of Karachi by air. The respondent being driver took him in the jeep to the Karachi Airport. The respondent was duty bound to carry his master to the Airport in the vehicle provided by him. The respondent was not expected to ask his master not to carry the above arms in the jeep for his personal safety, nor he could have asked him to take the arms with hiin while boarding the plane from Karachi Airport and, therefore, the respondent in the discharge of his normal duties was taking back the above arms to his master's house when they were seized by the Police party. In our view, the High Court has rightly concluded that no case could have been made out against the respondent for criminal liability keeping in view the above prepondrance of the judicial view.
12. However, Mr. Mangi, Learned Additional Advocate-General has urged that since the licences of the arms in question had already expired, when they were seized, even the possession of Asif All Zardari was illegal in view of the above section 10 of the Ordinance and, hence, the possession and control of the respondent over the arms in question even under the order/direction of his master could not have been legal. Suffice it to observe that it is not the case of the prosecution that the respondent knew the factum that the aforesaid licences had already expired. Additionally the respondent was not charged under section 10 of the Ordinance.
13. The impugned judgment of the High Court does not suffer from any infirmity as to warrant interference by this Court. We, therefore, dismiss the above appeal.