The petitioner has been convicted under section 19( f ) of the Arms Act, for having in his possession, rifle P. 1, Pistol P. 2 and 15 cartridges P. 3/1-15 without a licence. He has been sentenced to undergo four months' R. I.
2. According to the prosecution, on the 18th of September 1963, Ghulam Rasul Sub-Inspector of C. I.
A. Staff interrogated the accused. He led the Police Officer and got recovered rifle P. 1, Pistol P. 2 and ] 5 cartAdges T'. 3/1-15, wrapped in a gunny bag from the dhar of bhoosa. The same were taken into possession in the presence of Muhammad Afzal Shah and Allah Bakhsh P. WQ.
3. The petitioner in the course of his defence stated that he had been falsely implicated in this case or account of enmity and examined Noor Mohd. And Hamad Ali in defence. He denied the recovery at his instance.
4.It is contended by the learned counsel for the petitioner that there is no satisfactory evidence in this case to show that the rifle, the Pistol and the cartridges in question were actually recovered at the instance of the petitioner. This contention is obviously untenable. Both the Courts below have examined the evidence of Ghulam Rasul Sub-Inspector, Muhammad Afaal Shah and Allah Bakhsh P. Ws. And came to the conclusion that there was no material discrepancy in the evidence of these prosecution witnesses.
5. On examining the evidence I am clear in my mind that the public witnesses or the police officer had no grudge or ill---feelings against the petitioner, nor their evidence on the question of factum of recovery can be described as discrepant,. To sum up, I would say that the findings of the Courts below on this point can not be challenged at perverse. Learned counsel for the petitioner next contended that even if, it is believed that the rifle, the pistol and the cartridges in question were recovered at the instance of the petitioner, he could not be said to have been found in possession of the same. In this connexion he cited Rehmat alias Rehman v. The State (PLD 1965 Lab. 386) and Emperor v. Buta Singh (AIR 1917 Lab. 48). In the first case Mr. Justice A. R. Khan, as he then was, took the view that the mere fact that the accused pointed out a place from where the incriminating article was recovered without proof that the place was in. The exclusive possession of the petitioner was not sufficient to bring home the offence to him. In the second case, a Division Bench of this Court comprising Chevis and Shadi Lal, JJ, observed :- "The mere fact that a person points out a place not his own where stolen property is concealed, does not justify the Court in drawing the conclusion' that the person who pointed out the stolen article had recieved or retained it."
It was further observed: "The mere knowledge of the place of concealment does not necessarily lead to the conclusion that the person having such knowledge actually received the stolen articles or participated in the act of concealment."
6. Learned counsel appearing for the State cited Jiando v. The State (PLD 1962 Kar.288) wherein Mr. Justice A. S. Faruqui (as he then was) took notice of Emperor v. Buta Singh. He pointed out the observations of Mr. Justice Muhammad Munir with regard to the decision in Emperor v. Buta Singh, where his Lordship observed that the rule stated therein was "too broadly and is a definite hindrance in the way of those who in the administration of criminal justice seek guidance from circumstantial evidence." Mr. Justice A. S. Faruqui observed: "with the conclusion reached by Munir, J. I am, if I may say so, in respectful agreement".
7: In Sher Mohammad v. Emperor (AIR 1945 Lab. 27) Munir, J. Discussed the question raised at the bar at some length and observed: - "The question what inference from a relevant fact may be drawn as to the existence or otherwise of a fact in issue and with what degree of certainty is in each case a matter for the Judge to determine on the facts of that case and cannot be regulated by a generalization. The outstanding fact in such cases is that the discovery of the incriminating article from a place which is hidden from public view but is pointed out by the accused unmistakably shows that the accused was in sortie way privy to the felony. "This is the most natural and prominent inference which the Court will draw under section 114, Evidence Act, and the fact being within the peculiar knowledge of the accused it is for him to show that he acquired knowledge of the place of concealment in some other way. If, therefore, tile prisoner makes no attempt to explain how he acquired knowledge of the place leaving aside the question of proving the truth of the explanation if given, there is nothing in law to prevent the Court from convicting him if after considering all the surrounding circumstances and bearing in mind the other possible hypothesis and the principle that it is better that ten guilty men should escape than one innocent span be punished the Court comes to the conclusion that the accused himself must have put the article or articles there, it not only may but it is its duty to convict."
8. In the instant case, the accused has not explained the circumstances whereby he obtained the knowledge of the fact that the incriminating articles were lying in the direr of bhoosa. In this view of the matter, in my opinion tile prosecution has succeeded to establish the case satisfactorily against the petitioner. I dismiss the revision petition tin merits.
9. The question of sentence requires consideration. The petitioner was sentenced on the 29th of February 1964. His appeal was dismissed on the 29th of April 1964. He was 'admitted to bail by this Court on the 19th of May 1964. He had already suffered 29 days' imprisonment. It would not be proper after this long interval of time which has elapsed between the accused coming out of prison and the hearing of the case, to send him to jail now. Taking all the circumstances into consideration, I am of the considered opinion, that the sentence already undergone and a fine of Rs. 200 or to default to three months' R. I. Would meet the ends of justice and I, order accordingly.
The District Magistrate would take necessary steps to carry out their order.