2018 P Cr. L J 666
[Balochistan]
Before Muhammad Hashim Khan Kakar, J
ZAKIR HUSSAIN--- Appellant
Versus
The STATE---Respondent
Criminal Appeal No. 22 of 2016, decided on 24th October, 2017.
(a) Pakistan Arms Ordinance (XX of 1965) ---
----S. 13(d) ---Criminal Procedure Code (V of 1898), S. 103---Recovery of unlicensed weapon ---
Search to be made in presence of witnesses ---Benefit of doubt ---Prosecution case was that in
pursuance of a case registered under S. 324, P.P.C., police raided a house and accused was found
in possession of one Kalashnikov with fifteen cartridges ---Neither the accused was nominated
nor wanted in the said case ---Accused was not owner of the house in question---Facts and
circumstances of the case showed that brother of the accused was nominated and wanted in the said case and the house in question also belonged to him ---Accused stated that due to absconsion
of his brother, who was nominated and wanted in the said case, he had been falsely involved in the case---Said pl ea of accused was not only plausible but seemed nearer to the truth---
Simpliciter possession of arms and ammunition did not constitute an offence under S. 13(d) or (c) of the Arms Ordinance, 1965---Such possession would become an offence only when the possessor of the same failed to produce permit or license ---Nothing was available on record to
suggest that at the time of alleged recovery, the accused was asked for production of the license or permit ---Murasila as well as the statement of accused, recorded under S. 342, Cr.P.C. were
silent in that respect--- Mandatory provisions of S. 103, Cr.P.C. having been violated, alleged
recovery of Kalashnikov, without joining disinterested persons inspite of availability, was doubtful and no reliance could be placed upon it especially, when ulterior motives had been alleged by the accused ---Circumstances established that prosecution had failed to establish its
case against accused beyond reasonable doubt ---Accused was acquitted in circumstances by
setting aside convict ion and sentence recorded by the Trial Court.
(b) Criminal Procedure Code (V of 1898) ---
----S. 103---Search to be made in presence of witnesses ---Object ---Object of compliance of S.
103, Cr.P.C. was to ensure that recovery was effected honestly and fairl y so as to exclude the
possibility of false implication and fabrication ---Section 103, Cr.P.C. was designed to provide
safeguard against police excesses.
Syed Ayaz Zahoor and Ehsan Rafique Rana for Appellant.
Abdul Mateen, Deputy Prosecutor -General for the State.
Date of hearing: 20th October, 2017.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. ---Appellant Zakir Hussain son of Jan
Ali, has challenged the judgment dated February 26th 2016, passed by learned Additional
Sessions Judge -III, Quetta, whereby he was found guilty of the offence and sentenced to suffer
four (4) years Rigorous Imprisonment ("RI") under section 13- D of the Pakistan Arms
Ordinance, 1965 and to pay fine of Rs.10,000 (Rupees ten thousand) or in default thereof to further undergo Simple Imprisonment ("SI") for a period of 3 months with the benefit of section 382-B, Cr.P.C.
2. It is case of the prosecution that on May 20th, 2014 at about 2:30 p.m. in pursuance of
Crime No.36 of 2014, under section 324, P.P.C. the house of one Karar Hussain wa s raided by
complainant Nasrullah, SI/SHO and other police officials and the appellant was found in possession of one Kalashnikov bearing No. 56- 114179915 and 15 live cartridges.
3. On the stated allegations, the formal charge was framed and read over to t he appellant, to
which he did not plead guilty and claimed to be innocent. Thereafter, the prosecution examined PW-1 Nasrullah, SI/SHO as complainant of the case, who produced his murasila Ex.P/1, PW -2
Ali Ahmed, Constable, as recovery witness, who produce d the recovery memo Ex.P/2.
Kalashnikov Art. P/1 and live cartridges Art. P/3 and PW -3 Amir Qazmi, investigating officer of
the case.
4. The appellant was examined under section 342 of the Cr.P.C. wherein he denied the
allegations levelled against him by the prosecution and took the plea of false implication. He either opted to make statement under section 340(2), Cr.P.C. on oath, nor produced any defence witness. The learned trial court, after hearing learned counsel for the parties, convicted and sentenced the appellant, as stated above.
5. We have heard learned counsel for the appellant as well as learned Deputy Prosecutor
General for the State and have gone through the record with their valuable assistance. It has been argued by the learned counsel for t he appellant that the prosecution had failed to prove its case
against the appellant beyond reasonable doubt and, thus, this appeal warrants acceptance with a resultant acquittal of the appellant. On the contrary, learned Deputy Prosecutor General maintain ed that the prosecution had succeeded in proving the guilt of the appellant to the hilt,
therefore, the present appeal deserves dismissal.
6. I have considered the contentions put forth by the parties' Counsel and have gone through
the entire material and evidence available on record. The record indicates that the recovery of alleged unlicensed Kalashnikov along with 15 live rounds, was effected on arrest of the appellant in connected case i.e. Crime No. 36 of 2014, under section 324, P.P.C. Neither the app ellant
Fakir Hussain was nominated nor wanted in the said crime, nor is he owner of the house in question. As a matter of fact, one Karar Hussain, who happened to be the real brother of the
present appellant, was nominated and wanted in the aforesaid crime and the house in question
also belongs to him.
7. The appellant belongs to a poor family and is a student of Quaid- i Azam University,
Islamabad. During the course of arguments, he came forward with the heavy heart and having
tears in his eyes stated that being a student his weapon is his pen not a Kalashnikov. According to his version, keeping a Kalashnikov by a student is no less than living in Rome and fighting with Pope. He stated that due to absconsion of his real brother namely, Karar Hussain, who was
nominated and wanted in the aforesaid crime, he has been falsely involved in the instant case. On the contrary, the case of prosecution suffers from contradictions, discrepancies and lacunas. By putting both the pleas in juxtaposition, the plea of the acc used is not only plausible but also
seems nearer to the truth.
8. There is another important aspect of the case, which seems to be oversighted by the
learned trial Court while convicting the appellant. Admittedly, simpliciter, possession of arms and ammuni tion does not constitute an offence under section 13(d) or (e) of the Arms Ordinance,
1965, it becomes an offence only when the possessor of the same failed to produce permit or license. There is nothing on record to suggest that at the time of alleged rec overy, the petitioner
was asked for production of the license or permit. The murasila as well as the statement of appellant, recorded under section 342 of Cr.P.C. are completely silent in this respect. Furthermore, the mandatory provisions of section 103 of the Cr.P.C. had been violated in the present case, as alleged by the accused. The main object of compliance of section 103 of the Cr.P.C. is to ensure that recovery is effected honestly and fairly so as to exclude the possibility of false implication and fabrication. Section 103 of the Cr.P.C. is not a decoration but designed to
provide safeguard against police excesses, as such, the alleged recovery of Kalashnikov without
joining disinterested persons in spite of availability, is highly doubtful and no r eliance can be
placed upon it, especially, when ulterior motives have been alleged by the appellant.
In view of what has been stated above, the prosecution has failed to establish its case
against the appellant beyond reasonable doubt, thus, the appeal is allowed, impugned judgment is
set aside and the appellant is acquitted of the charge. The appellant is on bail, which stand
discharged.
These are the reasons of my short order dated 20th October, 2017, announced in the open
Court.
JK/144/Bal. Bail granted.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,
let us know.