SARDOOD KHAN Versus THE STATE

ORDER

During the course of investigation of case F.I.R. No.100 of 1992 of Police Station, Qamar Masani of District Mianwali registered for the alleged commission of an offence punishable under section 324/34, P.P.C., one Sardood Khan accused was alleged to have led to the recovery of a rifle from his house. Consequently, a further case bearing F.I.R. No.114 of 1992 was registered against the said accused person and having been sent up for trial, a charge under section 13 of the Arms Ordinance XX of 1965 was framed against him. A learned Magistrate exercising powers under section 30 of the Cr.P.C. at Mianwali found the said Sardood Khan guilty of the offence punishable under section 13 of the Arms Ordinance XX of 1965 through a judgment, dated 13-4-1993 and resultantly punished him to suffer one and a half years' R.I. therefor. The appeal of the said convict before the learned Sessions Judge, Mianwali failed vide judgment, dated 21-4-1993.

2. Hence this revision petition.

3. Referring to the finding of the learned trial Court during the course' of the statement bf P.W.1 to the effect that the rifle in question was not in working order; that the clutch of the rifle was not capable of being pressed nor could a bullet be put in the said rifle, the learned counsel for the convict-petitioner argued that even if it be conceded that the said alleged rifle had been recovered from the possession of the petitioner, the same would not fall within the purview of Arms, Consequently, he argued that the conviction, of the petitioner was bad in law.

4. The above-referred finding of the learned trial Court is available on record. An object cannot be said to be fire-arm unless it is capable of being used as one. A so-called rifle, if it is not in working order is only a stick or an iron pipe and not a fire-arm. This being so both the learned Courts below were in error in convicting the petitioner under section 13 of the Arms Ordinance XX of 1965 for the recovery of an article which was not capable to be used as a fire arm and thus did not qualify to be declared as such. Therefore, the impugned conviction of Sardood Khan petitioner recorded under section 13 of the Arms Ordinance XX of 1965 by the learned trial Court through its judgment, dated 13-4-1993 and maintained by the learned Sessions Judge through his judgment, dated 21-4-1993 is set aside and the petitioner is acquitted of the said charge. In case the petitioner is still in custody, then he shall be released forthwith, if not required to be detained in any other case.

Criminal Revision No.221 of 1993 is allowed in the above terms.

N.H.Q./S-459/L Revision petition allowed