JUDGMENT

Fraser, J C - This judgment covers an appeal preferred by Government against the acquittal of a person convicted under Section 19(f), Arms Act, for the unlicensed possession of a pistol, dagger and three rifles. The acquittal was based on the absence of the District Magistrate's previous sanction required by Section 29 of the Act. The question raised before us is a most important question of law and practice and applies not only to the Peshawar, but also to the other four districts of the Frontier Province. We may clear the ground by saying that it is admitted by the Government Advocate that if the District Magistrate's previous sanction is regarded as necessary, its absence will be fatal to the prosecution case. This is clear, for it is the existence of the sanction which confers jurisdiction upon the trying Magistrate, Reference may be made to a decision of a Bench of the Lower Burma Chief Court in Nga Po Chein v. Emperor (1919) 8 LR 452. The only point left for our consideration is whether the previous sanction of the District Magistrate is necessary for the prosecution of a case under Section 19(f). Arms Act, 1878. Section 29 runs as follows:

Where an offence punishable under Section 19, Clause (f), has been committed within three months from the date on which this Act comes into force in any province, district or place to which Section 32 Clause (2), Act 31 of 1860, applies at such date, or where such an offence has been committed in any part of British India not being such a district, province or place, no proceedings shall be instituted against any person in respect of any such offence without the previous sanction of the Magistrate of the district.

2. The section was obviously introduced into the Act by way of a safeguard against indiscriminate prosecutions. Its effect is to make the previous sanction of the District Magistrate necessary in all districts in British India except in those in which Clause (2) of Section 32 of Act 31 of 1860 applied in 1878, and even in the latter districts the sanction was necessary for three months after the introduction of the Act. If, therefore, previous sanction for the Frontier Districts is not necessary, it has to be shown that Clause (2), Section 32 of the 1860 Act applied to these districts in 1878. The general effect of the application of Section 32 of the 1860 Act was to disarm the district to which it was applied. The Punjab generally was disarmed under the provisions of the Arms Act of 1860, but as appears from the Punjab Government Notification No. 2069, dated 16th May 1878, the districts which now constitute the pres6nt Frontier Province were not disarmed, except three small villages in the Peshawar District, Clause (2), Section 32 of the 1860 Act, however relates to two classes of districts, those which had been disarmed under Clause (1), of that section, and those where an order for a general search for arms had been issued and was still in operation under the previous Act (28 of 1657). A case, the facts of which were very similar to the present ones, came before a Judge of the Allahabad High Court in Amir Ahmad v. Emperor . In that case the District Magistrate's previous sanction was found to be unnecessary owing to the discovery of a notification issued in 1858 authorizing a general search and seizure of arms in certain portions of the North Western Provinces, We adjourned the final hearing of this appeal in order to give the Government Advocate an opportunity of ascertaining whether a similar order had been issued in the Punjab, although historically it seemed most improbable that such an order should have been made, at any rate for the trans-Indus districts of the Punjab. After consulting the Government of the Punjab the Government Advocate informs us that no such search order has been discovered. We must take if,, therefore, that Clause (2), Section 32 of the Act of 1860 did not apply to the Frontier Province in 1878.

3. The Government Advocate has attempted so