' MIAN SHAKIRULLAH JAN, J.--- The two appeals, one filed by Khawaj Muhammad (Criminal Appeal No,71 of 1999) and the other filed by Babu Khan (Criminal Appeal No,72 of 1999), against their conviction under section 16 of the Arms Ordinance, 1965 and 13 of the Arms Ordinance relating to the recovery of arms ammunition i.e. Kalashnikov bearing No,07945938 and certain rounds of 7.62 bore with the allegations of delivering the same by Khawaj Muhammad and recovered from Babu Khan and which kalashnikov is licensed in the name of the former.
2. Initially a case was registered under section 13, Arms Ordinance vide F.I.R. No,213, dated 10-10- 1997, Police Station Battagram against Babu Khan on the assertion that while he was going in a Datsun the police recovered the abovementioned arms ammunition from his possession to which he could not produce a valid licence and was booked accordingly. On production of the licence for the kalashnikov by Khawaj Muhammad another case vide F.I.R. No,224, dated 8-11-1997 under section 16 of the Arms Ordinance was registered against him.
3. At the trial of appellant Babu Khan three witnesses were examined by the prosecution. P.W.1 Gohar Rehman and P.W.3 Zahid, F.C. Who both are the marginal witnesses to the recovery memo.
Vide which the kalashnikov was taken into possession by Abdullah Khan, Inspector. Ashiq Hussain was examined as P.W.2 who on the receipt of the Murasila has registered the case. Since Abdullah Khan, Inspector was died and this witness also stated that he being well-conversant with the handwriting and signatures of Abdullah Khan and, thus, testified that the Murasila, the recovery memo. Were in his handwriting and also bore his signatures.
4. On the close of the prosecution case the accused was examined under section 342, Cr.P.C.
Wherein he has stated that the recovery of the arms ammunition has been effected from Khawaj Muhammad and not from him.
5. Similarly Khawaj Muhammad was also put to trial under section 16, Arms Ordinance. The prosecution examined two witnesses i.e. Muhammad Bashir as P.W.1 and Gulzar Khan as P.W.2. The former has deposed in respect of the production of the licensed rifle by Khawaj Muhammad appellant and its taking into possession by the Investigating Officer Gulzar Khan has deposed to the effect that he was well-conversant with the handwriting and signatures of Abdullah. Khan, S.H.O. Since dead, who drafted the Murasila, prepared the recovery memo. And signed the same.
6. Khawaj Muhammad was also examined under section 342, Cr.P.C. He has produced no evidence in defence except the certified copy of application Exh.P.1. Which he has written to the Sessions Judge for the return of the kalashnikov and the order of Sessions Judge, Exh.P.2, dated 6-11-1997 for the return of the same to the applicant. He in his statement has also stated the same facts as narrated by Babu Khan accused by stating that it was he (Khawaj Muhammad) from whose possession the kalashnikov was recovered and he was a valid licensee and the police have manipulated the case by falsely implicating him and Babu Khan.
7. The learned trial Court convicted and sentenced Khawaj Muhammad appellant to one year's R.I.
Under section 16, Arms Ordinance and was placed under probation on the condition that he would furnish bail bonds in the sum of Rs,50,000 with the sureties. Babu Khan appellant was also convicted and sentenced to three years' R.I. With a fine of Rs,1,000 or in default of fine to undergo three months' R.I. He was also placed under probation. It is against these judgments and orders against which the present two appeals, as mentioned in para. No,1, have been filed.
8. The application Exh.P.1 indicates that this was submitted in the Court on 16-10-1997 stating therein that despite the production of the licence copy before the police with regard to the kalashnikov, but neither the same is returned to him nor a case under section 16, Arms Ordinance is registered against him, and it is after the issuance of notice to the State by the Court on 16-10-1997 when the case under section 16, Arms Ordinance was registered on 8-11-1997, after passing of the order by the Court on 6-11-1997 for return of the kalashnikov to the appellant, and this order is Exh.P.D. The observation of the learned Court in this respect is worth perusal and is as under:-- "I am told that licence for the kalashnikov in question was delivered to the S.H.O., yet he is adamant in keeping it out of consideration for some ulterior motives. I feel that public functionary particularly police is still to be trained with the concept of public service and unless they are shaken out of their deep slumber by some stern measures, the rule of law in this country will, remain always a dream to be cherished for. Realising this situation I feel that it would be appropriate to issue an order for the immediate return of the kalashnikov to the owner with an explanation from the S.H.O.
Concerned as to why he failed to proceed in accordance with the legal provisions after he had received the licence copy from the owner."
9. The story as set up by the prosecution is not denied in toto by the accused-appellants i.e. Their travelling in the Datson and the recovery of kalashnikov but with only difference i.e. The prosecution alleges the recovery from Babu Khan while the two appellants alleged it from Khawaj Muhammad.
It is also in the statement of the witnesses that there were other passengers present in the Datson at the time of recovery and also that there was a religious centre where persons from the public were also present but none has been cited as a witness. The prosecution version is not having the support of the star-witness in the case i.e. Abdullah Khan, S.H.O. Being dead and could not have been produced. It is not a case like the other recovery case where the question arises as to wherefrom such a valuable article has been manoeuvred by the police and to plant it upon the accused and which factor goes a long way in favour of the prosecution and against the accused even in absence of any public witness but here in this case it is quite different as in this case the only question involves is from whose possession the arms were recovered with the possibility of excavating a pretext to have such arms ammunition by the police and particularly in the absence of any deposition by the Investigating Officer himself in order to ascertain from him the non-citing of the public witness and about the very assertion of Khawaj Muhammad appellant produced the licenc copy but the same was not taken from him by the Investigating Officer. Such-like doubts in the prosecution story also further strengthened by the observation of the learned trial Court vide Exh.D.1 having the knowledge of the real facts at the initial stage when the case was before him for the return of kalashnikov.
10. Even otherwise in case where for the arms ammunition a person can produce a valid licence then a lenient view is taken. In case Syed Akbar Ali Shah v. The State 1995 PCr.LJ 1317 it was observed as under:-- "Documentary evidence available on record showed that the fire-arm and the ammunition belonged to the applicant who had claimed those said articles, therefore, could not be forfeited in favour of Government and the Trial Court's order to that effect was consequently set aside with the direction to District Magistrate to hand over the same to the applicant after proper identification who was their licensee."
In case Ghulam Sarwar v. The State 1997 PCr.LJ 1283 it was held as under:-- "Gun recovered at the instance of accused in the murder case and confiscated in favour of the State, had been claimed by the accused's father (petitioner)---Petitioner being the lawful owner and the licensee of the gun was entitled to have the gun restored to him on furnishing the necessary documents---Revision petition was accepted accordingly."
' Similarly in case Hassan Khan v. The State PLD 1967 Pesh. 103 it was held:-- "sustaining conviction under section accused must be proved to have voluntarily delivered arms or allowed its use by another."
11. Even if the prosecution story is held to be true even then on the production of licence by the licensee in respect of the arms then no offence whatever under the Arms Ordinance has been constituted, in this respect reliance can be placed on case The State v. Noor Haider PLD 1967 Pesh.
182 and in which case it was held as under:-- "Since the respondent is the nephew and servant of Saifur, licensee and as he was carrying the licensed shotgun of his master at his bidding to his village, no offence whatever under the Arms Ordinance has been constituted. It will be profitable hereto refer to the decisions in (1) Emperor v.
Lalman Tharu AIR 1937 Pat. 347; (2) In re: Avidi Veerasami v. Crown AIR 1940 Mad.
257."
' In the first noted case, the Division Bench comprising of Agarwala and Warma, JJ., observed:-- "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."
' In the latter case, it was held-- "A servant of a gun licensee merely carrying the gun of his master to the house of the master under his orders is not guilty under section 19(1)."
12. Consequently, we accept both these appeals, set aside the orders of conviction of the learned trial Court and order that the kalashnikov be returned to its licensee/owner Khawaj Muhammad.