2017 P Cr. L J 445
[Balochistan]
Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ
ABDUL HAYEE and 2 others ---Appellants
Versus
STATE through Prosecutor -General Balochistan ---Respondent
Criminal Appeals Nos. 296 and 324 of 2016, decided on 15th December, 2016.
(a) Pakistan Arms Ordinance (XX of 1965) ---
----S. 13- E---Anti -Terrorism Act (XXVII of 1997), S. 21- L---Possessing unlicensed arms,
abscondance of accused ---Appreciation of evidence ---Prosecution case was that huge quantity of
arms and ammu nition were recovered from the vehicle, wherein three persons were seated ---
Accused was driving the vehicle while the co -accused persons were seated therein ---Said persons
failed to produce any valid licence, Rah Dari or permit for the recovered arms and ammunition ---
One of the co -accused absconded during trial jumping bail ---Prosecution produced three
witnesses in order to prove the charge against the accused persons ---Prosecution witnesses
recorded their statement in line with each other ---Witnesses remai ned firm in their depositions ---
Witnesses correctly identified the accused persons in the court ---Statements of witnesses were
corroborative of each other with regard to date, time, place of recovery and the manner, in which
the search of the vehicle was conducted which resulted into recovery of said arms and
ammunition ---Prosecution successfully established the recovery of arms and ammunition from
the vehicle but failed to establish the conscious knowledge and awareness of all the accused
about the availab ility of arms and ammunition in the vehicle ---Accused was driving the vehicle,
thus he was in- charge of the vehicle---Said vehicle was under his control and possession---
Circumstances established that articles lying in the vehicle were presumed to be under his control
and possession---Besides the recovery of arms and ammunition, a revolver along with 16 live
rounds were recovered from the possession of accused/driver, which clearly indicated that
actually he was the culprit, who had concealed the arms and ammunition in the vehicle and was
transporting the same ---Appeal against conviction and sentence was dismissed in circumstances.
Nadir Khan v. State 1998 SCMR 1899 and Ali Muhammad v. The State 2013 PCr.LJ 915
rel.
(b) Pakistan Arms Ordinance (XX of 1965) ---
----S. 13- E---Anti -Terrorism Act (XXVII of 1997), S. 21- L---Possessing unlicensed arms,
abscondance of accused ---Appreciation of evidence ---Huge quantity of arms and ammunition
were recovered from a vehicle---Knowledge and awareness about the concealed arms and
ammunition ---Scope ---Prosecution case was that huge quantity of arms and ammunition were
recovered from the vehicle, in which three persons were seated ---Accused was driving the
vehicle whereas co -accused were seated in the said vehicle---Prosecut ion failed to substantiate
the charge against the co -accused, who were seated in the vehicle, as nothing was on record to
the effect that they were in the knowledge and were aware of concealing the arms and
ammunition in the vehicle ---Mere presence of co -accused in the vehicle was not enough to hold
them responsible for concealment of arms and ammunition or its transportation---Circumstances
established that co -accused were not responsible for the concealed arms and ammunition---
Conviction and sentence agai nst co -accused recorded by Trial Court were set aside.
(c) Anti -Terrorism Act (XXVII of 1997) ---
----Ss. 10(11 -A) & 21 -L---Pakistan Arms Ordinance (XX of 1965), S. 13- E---Constitution of
Pakistan, Arts. 9 & 10 (1) ---Appreciation of evidence ---Trial in abs entia ---Natural justice,
principles of ---Applicability ---Conviction and sentence ---All accused persons were charged
under section 13- E, Pakistan Arms Ordinance, 1965---Co -accused absconded during trial ---Trial
of said co -accused was concluded in absentia ---Absconded co- accused was convicted and
sentenced under S. 21- L, Anti -Terrorism Act, 1997 ---Validity ---Trial of co -accused in absentia
was violation of Arts. 9 & 10(1) of the Constitution and S. 10(11- A) of the Anti -Terrorism Act,
1997---Conviction and sentence of co -accused in absentia therefore could not be sustained as
they were not afforded any opportunity of hearing ---Absconded co- accused was thus condemned
unheard, which was contrary to the principles of natural justice ---Attending circumstances
sugge sted that conviction and sentence to absconded co -accused could not be awarded ---
Absconded co- accused was acquitted by setting aside conviction and sentence recorded by Trial
Court.
Mir Ikhalq Ahmed v. The State 2008 SCMR 951 rel.
Najam -ud-Din Mengal for Appellants.
Abdul Latif Kakar, Additional Prosecutor -General for the State.
Date of hearing: 23rd November, 2016.
JUDGMENT
ABDULLAH BALOCH, J. ---This common judgment disposes of Criminal Appeal No.
296 of 2016 filed by the appellants Abdul Hayee son of Habib Khan and Muhammad Ashraf son
of Hamza and Criminal Appeal No. 324 of 2016 filed by appellant Muhammad Ayub son of
Basham, against the judgment dated 4th August, 2016 (hereinafter referrd as, "the impugned
judgment") passed by the learned Special Jud ge Anti -Terrorism Khuzdar (hereinafter referred as,
"the trial Court"), whereby the appellants were convicted under section 13 -E of Arms Ordinance,
1965 and sentenced for three (03) years' R.I. each with fine of Rs.100,000/ - each and in default
thereof to further suffer one (01) year's S.I. each; the appellant Abdul Hayee was also convicted
under section 13- D of Arms Ordinance, 1965 and sentenced to suffer one (01) year's R.I. with
fine of Rs.20,000/ - or in default thereof to further suffer six (06) months' S.I. with the benefit of
section 382, Cr.P.C.
Since, the appellant Muhammad Ayub after his release on bail, jumped bail thus he was
also convicted under section 21- L of Anti -Terrorism Act, 1997 and sentenced to pay fine of
Rs.200,000/ - or in default ther eof to further suffer two years' S.I. The perpetual warrants of his
arrest were also issued.
2. Facts of the case are that on 13th September, 2015 the complainant Ali Ahmed, Risaldar
Levies lodged FIR No.08/2015 at Levies Thana Khuzdar under section 13- D of Arms Ordinance,
1965, stating therein that on 13th September, 2015 he along with other levies officials namely
Muhammad Akram, Naib Risaldar, Constable Ali Muhammad and Constable Abdul Hameed
were present on their duty at Peer Umer Check Post, when at ab out 5.30 p.m. a silver colour Surf
vehicle bearing registration No.BD -7422 was stopped, in which three persons were seated, who
were boarded down and vehicle was searched, from the spare wheel place of vehicle five semi -
automatic rifles wrapped in clothes, tied with ropes were recovered, (1) Rifle No.1609230 bolt
No.09230, (2) Rifle No.1513247 bolt No.13247, (3) Rifle No.1521256 bolt No.212256, (4) Rifle
No.1513635 bolt No.3635 and Rifle No.2417369 bolt No.73469, from back door of surf vehicle
a Kalashnikov without magazine China having No.1520060 bolt No.20060 and one low
explosive tube were recovered, from empty places of front and back doors of vehicle 7 packets
live rounds were recovered in which 6 packets were having 200/200 rounds while one packet
was having 183 rounds total 1382 rounds, from the switchboard of surf vehicle one revolver
pistol No.1262656 Germany along with 7 live rounds were recovered, then driver and his two
companions were arrested and were searched, during personal search from driver 's trouser belt in
a sack like cloth a revolver along with 16 live rounds were recovered, from pocket of driver his
CNIC and Levies service card were recovered, who on query disclosed his name as Abdul Hayee
son of Habib Khan and produced a license for rec overed pistol on the name of one Rehmatullah,
from personal search of other two accused Muhammad Ashraf and Muhammad Ayub their
CNICs were recovered. All the accused failed to produce any valid license, Rahdari or permit for
the recovered arms and ammuniti on.
3. In pursuance of the above FIR, the investigation of the case was entrusted to PW -3
Muhammad Azam, Tehsildar/IO, who during investigation took into possession the recovered
arms and ammunition; prepared the site map; took into possession the vehicle and on completion
of investigation submitted the Challan before the trial Court.
4. At the trial, the prosecution produced three (03) witnesses. The appellants were examined
under section 342, Cr.P.C. They neither recorded their statements on oath under se ction 340(2),
Cr.P.C. nor produced any witness in their defence. At this juncture, it is necessary to mention
here that during, the appellants were released on bail, but accused Muhammad Ayub son of
Basham jumped bail, hence he was declared as proclaimed o ffender. On conclusion of trial, all
the appellants were convicted and sentenced as mentioned above and the appellant Muhammad
Ayub besides his conviction of possessing arms and ammunition, was also convicted under
Section 21- L of ATA, 1997, vide impugned judgment dated 4th August, 2016. The appellant
Abdul Hayee and Muhammad Ashraf filed Criminal Appeal No.296 of 2016, while the
absconding accused Muhammad Ayub surrendered himself before this Court by filing Criminal
Appeal No.324 of 2016.
5. It is contended by the learned counsel for the appellants that the prosecution has not been
able to substantiate the charge against the appellants as glaring contradictions, discrepancies and
dishonest improvements are apparent in the statements of prosecution witnesse s; that the
judgment passed by the learned trial Court suffers from mis -reading, non- reading and mis -
appreciation of evidence; that the prosecution has failed to connect or prove the nexus of all the
accused with the vehicle, from which the recovery of arm s and ammunition were effected; that
the prosecution has failed to establish the conscious knowledge and awareness of all the accused
with regard to concealment of arms and ammunition in the vehicle, hence the impugned
judgment is not sustainable and liabl e to be set aside.
With regard to convicting the appellant Muhammad Ayub by the trial Court in absentia,
the learned counsel stated that the conviction in absentia has already been declared as null and
void by the Hon'ble apex Court, thus the conviction i n absentia is not sustainable.
6. To the contrary, the learned Additional P.G. vehemently opposed the argument so
advanced by the learned counsel for the appellants and contended that the prosecution has
successfully proved its case against all the appellants beyond shadow of doubt, who in
furtherance of their common intention were smuggling huge quantity of arms and ammunition
and were caught red -handed; that the prosecution witnesses are independent and trust worthy;
that learned trial Court had rightly c onvicted the appellants under section 13- E & D of Arms
Ordinance as well as awarding conviction to the appellant Muhammad Ayub in absentia under
section 21- L of A.T.A., 1997 as during pendency of the proceedings the appellant has
absconded.
7. Heard the learned counsel and perused the available record. According to the case of
prosecution the appellants were stopped in Peer Umer Check Post Khuzdar when they were
traveling in the Surf Vehicle. The appellant Abdul Hayee was driving the vehicle, while the
appellants Muhammad Ayub and Muhammad Ashraf were also seated in the said vehicle.
However, the search of the said vehicle was resulted into recovery of huge quantity of arms and
ammunition. The prosecution through consistent and confidence inspiri ng evidence has
established the recovery of arms and ammunition from the said vehicle. The complainant of the
case appeared as PW -1, who reiterated the contents of fard- e-bayan Ex.P/1- A. PW -2 is the
recovery witness, who along with the complainant was perf orming his duties on the said check
post. PW -3 is the Investigating Officer of the case, who counted the steps taken by him during
course of investigation.
8. Minute scrutiny of statements of all the witnesses discloses the fact that all the witnesses
recorded their statements in line with each. The witnesses remained firm in their deposition.
They correctly identified all the appellants in the Court. The statements of witnesses are also
corroborating each other with regard to date, time, place of recovery and the manner, in which
the search of the vehicle was conducted and said search was resulted into recovery of said arms
and ammunition. An attempt was made by the learned defence counsel to discredit and disregard
the statements of all the witnesses on th e basis of some minor discrepancies and contradictions,
but in our view those are not enough to render the entire prosecution case as doubtful, hence we
have no hesitation to hold that the prosecution has successfully established the recovery of arms
and a mmunition from the vehicle.
9. In continuation of above para, it is to add here that though the prosecution has
successfully established the recovery of arms and ammunition from the vehicle in question, but
still the prosecution has failed to establish the conscious knowledge and awareness of all the
three persons sitting in the vehicle, hence the primary question arises as to whether all the
appellants can be held in joint possession of the recovered property from the secret cavities of the
vehicle or othe rwise. It has come on record that the appellant Abdul Hayee was driving the
vehicle, hence presumption is drawn that since the appellant Abdul Hayee was driving the
vehicle, thus he was the Incharge of the same, therefore, it would be under his control and
possession. Therefore, whatsoever articles lying in it would be under his control and possession.
The Hon'ble Supreme Court in the case of Nadir Khan v. State, 1998 SCMR 1899, held as under:
"We have gone through the evidence on record and find that the petitioners had the
charge of vehicle for a long journey starting from Peshawar and terminating at Karachi.
They had the driving licence also. As being person Incharge of the vehicle for such a long
journey, they must be saddled with the necessary knowledge with regard to the vehicle
and its contents".
16. Keeping in view the above principles of law and observation of apex Court, the
appellant Bakht Gul who is driver, therefore, he is in possession of the vehicle and also in
possession of the articles whatever lying in it. Unless rebuttal of the case in hand no
evidence in rebuttal has been produced."
Similar view has also been taken in the case of Ali Muhammad v. The State, 2013 PCr.LJ
915, wherein it has been held that, "...when a person is driving the vehicle he is in the charge of
the same and, it would be under his control and possession, hence, whatever articles lying in it
would be under his control and possession. Reference is made to 2010 SCMR 927 and 1988
SCMR 1899.
10. Hence, in view of above dictu ms, the prosecution has successfully brought home the
charge against the appellant Abdul Hayee, who at the relevant time was driving the vehicle and
the search of the vehicle was resulted into recovery of huge quantity of arms and ammunition.
However, the prosecution has failed to substantiate the charge to the extent of accused
Muhammad Ashraf and Muhammad Ayub, as nothing was brought on record that they were in
the knowledge and were aware of concealing the arms and ammunition in the vehicle. Mere
presenc e of both the appellants in vehicle is not enough to hold them responsible for
concealment of arms and ammunition or its transportation rather it the abundant duty of the
prosecution to not only prove the presence of the accused in the vehicle, but also their knowledge
or awareness for concealment of arms and its transportation through the said vehicle, hence in
our view the learned trial Court was erred in convicting both the appellants Muhammad Ayub
and Muhammad Ashraf, whereas to the contrary their case is entirely at different footings to the
case of Abdul Hayee, as besides the recovery of arms and ammunition from the vehicle, a
revolver along with 16 live rounds were also recovered from the possession of said Abdul Hayee,
which clearly indicates that actually he was the culprit, who had concealed the arms and
ammunition in the vehicle and was transporting the same.
11. Now adverting to the conviction of the appellant Muhammad Ayub in absentia under
section 21- L of A.T.A., 1997, suffice to observe here th at the question of conviction in absentia
was dealt with by Hon'ble Supreme Court of Pakistan in the case of Mir Ikhlaq Ahmed v. The
State, (2008 SCMR 951), operative portion whereof reads as under:
"In view of the above, we feel that the trial of the appe llants, in absentia, undertaken by
the Special Judge, Anti -Terrorism Court, was violative of Articles 9 and 10(1) of the
Constitution and section 10(11- A) of the Anti -Terrorism Act, 1997, thus, cannot be
allowed to sustain. Furthermore, the appellants were not afforded any opportunity of
hearing and thus, they were condemned unheard which is contrary to the principle of
natural justice. We are convinced that the judgments, convictions and sentences rendered
and awarded by both the Courts, in the absence of the appellants, to their extent are not
sustainable under the law and violative of the Constitution and law, which has
necessitated the retrial of the case."
When the learned Additional Prosecutor General was confronted with the dictum laid
down by Hon'bl e Supreme Court of Pakistan in the aforementioned case, he frankly conceded
that the conviction and sentence, awarded to the appellant Muhammad Ayub, in absentia, is not
maintainable.
For the above reasons, the Criminal Appeal No.296/2016 is partly allowe d only to the
extent of appellant Muhammad Ashraf son of Humza, while the same dismissed to the extent of
appellant Abdul Hayee son of Habib Khan. The Criminal Appeal No.324/2014 filed by appellant
Muhammad Ayub son of Basham is allowed. The impugned judgm ent dated 4th August 2016
passed by the learned Special Judge Anti -Terrorism Khuzdar is set aside only to the extent of
appellants Muhammad Ashraf and Muhammad Ayub, hence they are acquitted of the charge in
FIR No.08/2015 Levies Thana Khuzdar. The appella nts Muhammad Ashraf and Muhammad
Ayub being in custody are ordered to be released forthwith, if not required in any other case.
JK/6/Bal. Order accordingly.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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