MUHAMMAD AKBAR SAMEJO Versus THE STATE

1. ALLAHDINO MEMON. J. --- This is an application under section 561-A, Cr.P.C. for quashment of proceedings pending against the applicant under, sections 8/9, 13-B of the Arms Ordinance, 1965, before the learned Judge. Special Court (Suppression of Terrorist Activities), Karachi.

2. The brief facts giving rise to the--present application are that on 25-8-1990, S.H.O. Muzaffar Ali Kalwar of Police Station Shahrah-e-Faisal, Karachi, lodged a report under section 13-B of the Arms Ordinance, according to which, he, S.I. Muhammad Sultan Jadoon, A.S.I. Muhammad Nazir, A.S.I. Arik Kamil, alongwith subordinate staff were patrolling in a Government mobile in Police Station Shahrah-e-Faisal Area, when they saw white Toyota Land Cruiser Jeep with tinted glasses which had no number plate, either on the front or on the back side, near Military Gate, Shahrah-e-Faisal. They signalled the driver to stop the Jeep but he did not stop the same and, therefore, they chased the same with the help of Mobile and stopped it near Drigh Road Railway Station at 9-20 p.m. apart from the driver, one other person was also Seltting by his side Qn the front seat, and. on inquiry the driver disclosed his name as Muhammad Akbar Samejo, while his companion give his name as Muhammad Razzaq Awan. One M.P.5/A-2 bearing No.6740038 with magazine loaded with 25 cartridges was found in the lap of driver Muhammad Akbar while another M.P.5/A-2 bearing No.A 75070 with a magazine loaded with 25 cartridges was lying on the side of his left leg. They also found one magazine loaded with 25 cartridges. One Kalashnikov No.37095 loaded with a magazine having 25 cartridges was found in possession of Muhammad Razzaq and a rifle No.3223 loaded with 10 cartridges was lying on the left side of his leg. There was a Khaki bag lying between his feet in which there were 43 cartridges, 30 bullets of Kalashnikov 13 bullets of rifle, 223, bore one wireless set WHF Micro was found working on channel No.5. The accused could not produce licences for the arms and ammunition nor they were able to produce papers regarding Jeep and wireless set and, therefore, they were arrested. Separate F.I.Rs under section 13-B of the Arms Ordinance were lodged.

3. After necessary investigation, the applicant was sent up before the Court.

4. A formal charge was framed against the applicant, to which he pleaded not guilty. The charge reads, as follows:---

5. "I Nabi Sher Junejo, Judge, Special Court (Suppression of Terrorist Activities) Karachi, hereby charge you, accused Muhammad Akber Samejo son of Muhammad Ibrahim Samejo that, you on 25-8-1990, at about 2-30 p.m. opposite Drigh Road Railway Station, Shahrah-e Faisal Road, Karachi, were going armed with two M.P. 5/A-2 (automatic weapons) and three magazine alongwith 75 live cartridges, for which you had no licences. And thereby you committed an offence under section 8/9 read with' section 13(d) of Arms Ordinance, 1965, and within the cognizance of this Court.

6. And I hereby direct you that you be tried by this Court on the aforesaid charge,"

7. An application under section 249-A, Cr.P.C. was moved before the learned Judge, Special Court, but the same was rejected, therefore, the present application has been moved for the quashment of the above proceedings, pending against the applicant.

8. We have heard Messrs Shafi Muhammadi and Muhammad Faridul Haq, learned counsel appearing for the applicant Mr. Muhammad Zubair Qureshi, learned counsel appearing for the State and have gone through the documents produced alongwith the quashment application. ,

9. Mr. Shari Muhammadi, learned counsel raised the following contentions:---

(1) That the servant or friend or any other person holding or carrying arms on behalf of Master (licence holder) or friend, inside the House or outside the house in the presence or absence of the owner does not commit any offence if he is in control and not in possession with no intention to use the same.

(2) If a person is tried under a provision of Ordinance and that Ordinance has expired, then the Court has no jurisdiction to try him under the Ordinance. In this connection it was further contended that Ordinance 16 of 1988 expired after four months, and the same was not in existence on the 23th August, 1990 when the incident took place and thus section 13-A and section 13-B of the Ordinance were not in existence at the time when the applicant was prosecuted.

(3) That the Ordinance having expired the- Court had no powers to impose, amend or to make any addition in the said law unless the law is in existence. .

10. In support of his contentions, the learned counsel has relied upon:---

11. A I R 1941 pat. 209; A I R 1948 Bom. 1973 and P L D 1967 Pesh. 53, 116 and 182:

12. Mr. Faridul Haq, learned counsel has contended that looking to the circumstances of the case, and the preamble of the Act of Suppression of Terrorist Activities Act, 1975, the case could not be tried by Special Court and the proceedings were without jurisdiction. In support of his contentions, the learned counsel has relied upon:---

13. P L D 1972 SC 279; P L D 1978 Lah. 1087 and P L D 1990 Kar. 488

14. Mr. Zubair Qureshi, learned counsel appearing for the State has contended that no doubt the arms secured from the applicant belonged to Asif Ali Zardari and were licenced arms but the licences had expired. He has further contended that although there is nothing on record to show that there was intention on the part of applicant to use the same and, therefore, he was technically liable for the offences under section 13-D.

15. We have considered the contentions and have gone through the documents produced alongwith the quashment application.

16. Adverting to the first contention of Mr. Shafi Muhammadi, it is an admitted position that the arms secured from the applicant were licensed arm. of the Asif Ali Zardari, and this fact is also very clear from the challan submitted by Investigating Officer before the Court. It is also an admitted position that the applicant was driver of Asif Ali Zardari. He had gone to Airport to see Asif Ali Zardari off. The challan shows that the licences were recovered from the vehicle in question but it is the prosecution case that the same had expired. However, there is no evidence as to when the licences had expired. The above facts have not been controverted to even by Mr. Muhammad Zubair Qureshi, learned counsel for the State, therefore, we have to see as to what offence was committed by the applicant when he was only taking arms and ammunition belonging to his master back to his house. It will be appropriate to refer to the provisions of the Arms Ordinance, 1965 under which the charge has been framed against the applicant:

17. Section 8: Prohibition of going armed without licences; a licence

(1) No person shall go armed with any arms except under a licence and to the extent and in the manner permitted thereby.

(2) Any person so going armed without a licence or in contravention of its provisions may be disarmed by any Magistrate, Police Officer or other person empowered by Government in this behalf by name or by virtue of his office.

18. Section 9: Unlicensed possession of arms etc . No person shall have in his possession or under his control any arms, or any ammunition or military stores except under a licence and in the manner and to the extent permitted thereby.

19. Section 10 of the Arms Ordinance:---(1) Any person possessing arms, ammunition or military store the possession whereof, has in consequences of the cancellation or expiry of a licence or of an exemption or the death of the licensee or otherwise become unlawful, shall without unnecessary delay deposit the same either with the officer incharge of the nearest police station or at his option and subject to such conditions as Government may by rule prescribe, with a licenced dealer;

20. Provided that where within one month of the expiry of a licence an application for its renewal has been made by registered post or by hand, the retention by the holder of such licence of the arms, ammunition or military store covered by the licence shall be deemed to be lawful until such time as the- licence has been renewed or its renewal refused.

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

(a) .................................................................................................................

(b) .................................................................................................................

(3) ..............................

21. Section 13-- Penalty for breach of section 4,5, 8 to 11. Whoever commits any of the following offences, namely:---

(a) ...................................................................................................................

(b) ....................................................................................................................

(c) .....................................................................................................................

(d) goes armed in contravention of the provision of section 8;

1. In the case of Avidi Veerasami v. Emperor AIR 1940 Mad. 257 wherein the applicant was convicted under section 19(f) of the Arms Act, it was contended on his behalf that he was merely carrying the gun to the house of his master under his orders and, therefore, his conviction under section 19(f) of Arms Act cannot be sustained The contention was accepted and the conviction

2. Emperor v. Khuda Gond 8 Cr. L J 406 wherein the respondent was convicted under section 19(f) of Indian Arms Act for possessing a gun without licence. The allegation against the accused was that he was a servant of one Zamindar and had accompanied Dajiba a cousin of his Zammdar, who apparently held licence to go armed and to come to this village to shoot. The Magistrate found that Dajiba felt thirsty, to get a drink leaving the gun with Khuda Gond and while the accused was waiting for the Zamindar, the Police came,up and seized the gun and thereafter, the accused was sent up before the Court and was convicted. The learned Sessions Judge made a reference under section 438, Cr.P.C. to the Court of Judicial Commissioner, Nagpur for setting aside the conviction. In the reference he had relied upon Emperor v. Harpalrai wherein it was observed as follows:---

22. "If this conviction be legal the owner of a gun, who hands it over to a servant whilst his hands are employed in buttoning up his coat or adjusting his dhoti might with equal logic he prosecuted for abetment of offence under section 19(f)'of Arms Act and the servant for the main offence."

23. The above reference was accepted, and the conviction end sentences were set aside.

3. Kedarnath v. Emperor 42 Cr. L J 97 wherein the applicant, who was the, owner of the gun had gone with Jamal Ahmed for shooting, when they returned, they came to know that section 144, Cr.P.C. was promulgated prohibiting carrying of arms. He stayed in the house of, his friend Jamal Ahmad for that night but he had to leave at 6-00 a.m. on the following morning and therefore, left his gun and bedding etc. in the house of Jamal Ahmed with the intention to return back shortly for taking the same. Next day, the houses of various persons were searched, and from the house of Jamal Ahmed the gun was recovered for which he had no licence, as the licence stood in the name of Kedarnath: The accused was sent up under section 19(f) of the Arms Act and he was convicted. The learned Sessions Judge made a reference to the High Court of Patna for setting aside the conviction of the two accused, and his Lordship while interpreting words possession and `control' came to the conclusion that:---

24. "Possession of the gun must be deemed to have remained with Kedarnath though it was not actually in his physical possession, and Jamal Ahmed was in possession of the gun at all, then at the most his possession was on behalf of the licensed, Kedarnath and not on his own behalf."

25. And, therefore, the reference was accepted and the accused were acquitted.

4. Parmeshwar Singh v. Emperor (AIR 1933 Patna 600) wherein the accused was found in possession of a gun of his master and was convicted under section 19(e) of the Arms Act and was ordered to pay fine of Rs.5 (five only), in appeal it was held that:---

26. "It is evident that the petitioner was in possession of the gun on behalf of his master, who was in Bath and who had left the place where the petitioner was guarding for a short time only."

27. Therefore, the appeal was allowed and the conviction and sentence was set aside and the appellant was acquitted.

5. In the case of State v. Noor Haider (PLD 1967 Pesh. 182) where the nephew and the servant of the licensee was found carrying the licensed shot gun of his master at his bidding to his village it was held that:--

28. "No offence whatsoever under the Arms Ordinance was committed and the conviction was quashed."

29. From the above factual as well as legal position it is clear that the contention raised by Mr. Shafi Muhammadi is well founded and the applicant did not commit any offence while he was carrying the licensed Arms of his master Mr. Asif Ali Zardari from Airport to Bilawal House. In this connection it will be appropriate to refer to a decision of High Court of Peshawar reported as Hassan Khan v. The State P L D 1967 Pesh. 103, wherein the question of possession used in the Arms Ordinance came up for consideration and it was observed that: "the word "possession" within the meaning of Ordinance on account of judicial interpretation has acquired special meaning and it would not cover the case of temporary possession without any intention to use the weapon, in such a situation the licensee would still be deemed to be in possession, unless it is shown that the possession was delivered to the unauthorised person with intention to use the fire arm."

30. From the above factual as well as legal position, it is clear that the arms in question were not handed over by Mr. Asif Ali Zardari to the applicant for the purpose of using the same but the applicant was to hand over the same at Bilawal House. This fact stands proved from the evidence of Mr. Asif Ali Zardari, the stand taken by the applicant in the Court, and even prosecution has not produced any evidence to show that these arms were handed over to the applicant by Mr. Asif Ali Zardari for using the same.

31. Adverting to the second contention of Mr. Shat Muhammadi, it will suffice to say that the applicant has been charged under sections 8, 9 and 13-D of the Arms Ordinance, therefore, the mere fact that he was challaned under section 13-B of the Arms Ordinance will not affect the proceedings.

32. Adverting to the third contention of Mr. Shafi Muhammadi, it will suffice to say that in view of the-charge framed-against the applicant, the contention is misconceived and irrelevant and does not require consideration.

33. Adverting to the contention of Mr. Muhammad Faridul Haq that looking to the preamble of the; Suppression of Terrorist Activities Act 1975 the applicant could not be tried under section 8/9, 13-D of the Arms Ordinance, no doubt where the statute is silent with regard to definition of certain expressions and does not define them in any of the sections or it is silent on some subject and the matter is not free from ambiguity, in order to find an answer to the question, it is legitimate to refer to the preamble. But it is one of the cardinal principles of construction that where the language of an Act is clear, the preamble must be disregarded, though where the object or meaning of an enactment is not clear, the preamble may be resorted to explain it. Again, where general language is used in an enactment which, it is clear, must be C intended to have a limited application, the preamble may be used to indicate to what particular instances the enactment is intended to apply. In this connection Q reference may be made to the case of Messrs Burrakur Coal Co. Ltd. v. Union of India A I R 1961 SC 954.

34. There is no cavil with the principles enunciated by their Lordships in P L D 1972 SC 279. However, since there is no ambiguity in the provisions of Suppression of Terrorist Activities Act, resort cannot be to the preamble and therefore, the contention of Mr. Muhammad Faridul Haq that the case was not covered by the provisions of Suppression of Terrorist Activities Act is untenable.

35. In view .of the above discussion, the quashment application is allowed, the proceedings pending against the applicant before the learned Judge, Special Court (Suppression of Terrorist Activities) Act 1975 at Karachi are hereby quashed.

36. We had decided the above application by a short order on Ist September, 1991, and these are the reasons for the same.

37. N.H.Q./M-1566/K Proceedings quashed.