MUHAMMAD KHAN vs THE STATE and others

' KHALIL-UR-REHMAN RAMDAY, J.---Muhammad Khan petitioner was tried and convicted for the commission of an offence punishable under section 7(b) and 7(c) of the Surrender of Illicit Arms Act, 1991 and was punished with ten years' R.I. His appeal before the Lahore High Court bearing Criminal Appeal No,1675 of 2004 failed.

2. Hence this petition.

3. Section 7 of the said Act of 1991 is a punishing provision and provides as. Under:- "(7) Punishments.-(l) whoever contravenes the provisions of section 4 or section 5 or fails to surrender illicit arms shall,-- (a)

4. The provisions of sections 4 and 5 of the said Act read as under:-- "(4) Surrender of illicit arms.--1) All persons in possession or control of any illicit arms shall surrender such arms within such time as is notified by the Federal Government to the Deputy Commissioner, Assistant Commissioner or officer-in-charge of a Police Station within whose jurisdiction such persons ordinarily reside or to such other authority as may be specified by the Federal Government by notification in the official Gazette.

(2) ......................................

(5) Surrender of arms, etc., by persons on visit abroad.---A person on a lawful visit abroad at the commencement of this Act shall, within the time notified under section 4 of his return of Pakistan, through an authorized route or port of entry, surrender and deposit all illicit arms in his possession or control to one of the authorities specified in section 4."

5. A bare perusal of the provisions of the said Act of 1991 especially the provisions contained in the above quoted sections 4, 5 and 7 would demonstrate that what is an offence under section 7 is not the keeping of illicit arms or being in possession thereof but what is in fact such an offence is being in possession of illicit arms on the commencing date and not surrendering the same to such authority within such time as was specified by the Federal Government by a notification in the official Gazette.

6. Therefore, what was required to be proved by the prosecution in the present case was:--

(a) that the petitioner was in possession of illicit arms on the commencing date of the said Act of 1991;

(b) that a notification had been issued by the Federal Government which stood published in the official Gazette specifying the time within which such illicit arms were to be surrendered to the named authority or to such other authority as may be specified through the said notification; and

(c) that despite such a notification and despite being in possession of illicit arms on the commencing date of the said Act, the petitioner had not surrendered the same within the specified time to the specified authority.

7. We have gone through the record but there is no evidence available therein that the petitioner was possessed of any illicit arms when the said Act of 1991 was promulgated. Even the notification required to be issued under subsection (1) of section 4 of the said Act was never placed on record to show that the petitioner had not surrendered the said illicit arms within the specified time. In fact we asked for the representative of the Home Department and an Additional Secretary and a Section Officer of the said Department entered appearance and confirmed that no such notification existed in their Department.

8. The prosecution having failed to prove the necessary ingredients of the offence punishable under section 7 of the Surrender of Illicit Arms Act of 1991, the impugned conviction and punishment recorded against the petitioner could not be sustained. Resultantly, this petition is converted into an appeal which is allowed as a result whereof the impugned conviction and punishment recorded by the learned trial Judge and as maintained by the learned High Court through the impugned judgment, are set aside and as a further result whereof the petitioner is acquitted of the said charges and shall be set a liberty forthwith if not required to be detained in any other case.

9. It is almost 15 years since the promulgation of this Act XXI of 1991 and it is about time the operators of the same i,e, Ministry of Interior in the Federal Government and the Home and the Police Departments in the four Provinces read the provisions of the said Act to find out what offence/offences were created by the same and further that it could not be used as a substitute for the Pakistan Arms Ordinance, 1965. Such a negligent conduct on the part of the concerned agencies was not only creating harassment to the ones prosecuted under the said Act but was also acting to the benefit of the criminals whose conviction and punishment then become unsustainable and they then go scot-free. The half-hearted manner in which the said Act was being enforced was evident from the fact that the Federal Government appears never to have issued the requisite notification under section 4(1) of the said Act nor is the Home Department, at least in the Government of Punjab, possessed of any such notification and despite this people are being prosecuted and punished under the said Act.

10. On account of such a negligent act on the part of the ones responsible for prosecuting the present petitioner, the Government of Punjab in the Home Department is ordered to pay compensation of Rs,100,000 (rupees one lac) to Muhammad Khan appellant in terms of section 250 of the Cr.P.C. Read with Article 187 of the Constitution.