' These two revision applications are directed against the judgments of Sessions Judge, Sanghar passed -in criminal appeals maintaining the convictions of applicants Rehmat All and Ashiq Ali for offences under sections 16-B and 13-D, Arms Ordinance, respectively. The sentences were, however, reduced by the learned Sessions Judge in appeal from R. 1, for two years to that of R. I. For one year in each case.
2. It is the case of the prosecution that there was a dispute over land between Ghulam Mustafa Rajput and Shah Muhammad Punjabi. Ghulam Mustafa had cultivated this land but Shah Muhammad had leased it out to Muhammad Nawaz Brohi who wanted to recover possession forcibly. On 14-4.1972 Muhammad Ishaque Mukhtiarkar along with the police party was deputed by the District Magistrate to go to the spot and quell the disturbances as there had been sporadic firing between both the parties. The Mukhtiarkar and the police came to the otak of Ghulam Mustafa. They found applicant Ashiq Ali standing in the wheat cultivation on the disputed land with a gun. It was the case of Ghulam Mustafa that the cultivation had been raised by him and Ashiq Ali and Rehmat Ali were his haries on that piece which was included in the disputed land. Police found Ashiq Ali with the gun loaded with one cartridge. No other ammunition was found on the person of Ashiq Ali. Ashiq Ali explained that the gun belonged to his nephew Rehmat All who was also a hari with him on that piece of land and they were both guarding the crop against forcible taking over of possession by the opposite-party. Rehmat Ali had explained that he had left for a short while to attend call of nature leaving his gun in temporary possession of his uncle Ashiq Ali, when police bad arrived. That the gun was not meant to be used by Ashiq Ali.
3. It has been argued by Mr. Ramchand on behalf of the applicants that no offences under the Arms Ordinance are made out on these facts against Rehmat All or Ashiq Ali. Mr. Ramchand has cited decision in State v. Noor Haider (1). In that case licensed fire-arm was being carried home by a servant on behalf of his master. The shot-gun and the cartridges were recovered from the servant. The master deposed that he was the licensee and the accused was his nephew as well as servant and as did not need the shot-gun at Peshawar where he was going, he sent it back from Nowshera to his village through the servant. Reliance was placed on two reported decisions in Emperor v. Lalman Tharu (2) and In re : Avid] Veerasami v. Crown (3). In the first case it was observed that in case of a licensed weapon a person who merely assists the owner of a weapon by carrying it for him would be doing a perfectly legal act. In the later case it was held that a servant of a gun licensee carrying the gun of his master to the house of the master under his orders is not guilty. Mr. Ramchand has also referred another decision in Kashi Paul v. State (4). In that case it was observed that mere possession of gun would not be an offence and mere temporary possession was not possession as contemplated under the Act. That going armed with a fire-arm was considerably narrower than being in possession merely, of a fire-arm. Therefore, when a fire- arm was handed over by the licensee to his brother it was held that no offence was committed. It was further observed in that case that under those circumstances even firing of the gun by the person in temporary possession would make no difference. {{FOOT NOTE}}
(1) PLD 1967 Pesh. 182 (2) AIR 1937 Pat. 347
(3) AIR 1940 Mad. 257 (4) PLD 1965 Dacca 284 {{FOOT NOTE}}
4. In the present case admittedly both Rehmat All and Ashiq Ali had cultivated wheat crop on that piece of land; both of them were guarding the crop against forcible trespass. Rehmat Ali was admittedly the licensee of that gun. At the time of the arrival of the police Rehmat AU had temporarily left that .Place leaving the gun with his uncle Ashiq Ali. Ashiq All was not going anywhere with the weapon but he was merely standing there until the arrival of Rehmat Ali.
Presumably after Rehmat Ali had arrived he would have taken the gun back from Ashiq Ali for guarding the crop. Under these circumstances the indications are that Ashiq Ali merely in temporary possession of that gun, and it could not he said that he was going armed with that gun within the meaning of section 13-D of the Arms Ordinance. Likewise Ramat Ali while leaving the gun in custody of Ashiq Ali during his temporary absence from the crop had no intention to transfer possession of his licensed weapon to Ashiq Ali. Under these circumstances neither Ashiq All nor Rehmat Ali could be found guilty of offences under the Arms Ordinance. The convictions and sentences passed against them arc accordingly set .Aside and the revision petitions are accepted.
Both the petitioners are on bail, their bail bonds are hereby discharged and they need not surrender. accordingly.