2012 M L D 1433
[Balochistan]
Before Mrs. Syeda Tahira Safdar and Muhammad Noor Meskanzai, JJ
MAHMOOD AHMED ---Appellant
Versus
THE STATE ---Respondent
Criminal Appeal No.82 of 2010, decided on 18th June, 2012.
West Pakistan Arms Ordinance (XX of 1965) ---
----S. 13(e) ---Possessing u nlicensed arm ---Appreciation of evidence ---Disclosure memo
prepared during the course of the investigation and the pointation made by accused, were not
brought on record nor any witness of the same was produced ---Trial Court on mere assertion
of prosecutio n witnesses noted down that the making of disclosure was an admitted fact ---
Matter was a simple reliance on the case as asserted by the prosecution, with failure to
discuss the material on record ---Marginal witness of the seizure memo was not produced ---
Whole set of evidence on record failed to establish the recovery of pistol on pointation made
by accused ---No investigation was carried out in the case ---Material collected in other case
was relied upon without bringing them on record of the case, which coul d not be legally
relied upon in the circumstances ---Case of the prosecution had become doubtful due to all the
discrepancies, and benefit of the same had to be extended in favour of accused ---Conviction
of accused was set aside and accused was acquitted of the charge against him and was
released, in circumstances.
Muhammad Aslam Chishti for Appellant.
Abdul Satar Durrani, Addl: P.G. for the State.
Date of hearing: 22nd December, 2011.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. ---Being aggrieved of jud gment dated 18th March,
2010, of Additional Sessions Judge -I, Quetta, whereby the appellant was convicted under
section 13(e) of Arms Ordinance, 1965, and sentenced him to suffer Rigorous Imprisonment
for a period of three (3) years with fine of Rs.30,000 and in default with further imprisonment
for three months, instant appeal has been filed. The appellant questioned his conviction on
grounds that the trial court failed to appreciate the facts of the case, and the law applicable in
the matter, which result ed in a decision not found support from the material on the record.
Further, the prosecution failed to establish the case beyond any reasonable doubt. It was
prayed that the impugned judgment be set aside and he be acquitted of the charge.
2. It was the case of the prosecution that the appellant, being involved in murder or one
Khalid son of Abdul Manan, was under custody, and during course on 16th December, 2008
made disclosure, while the appellant/accused led the investigating authorities to the site, a nd
got effected the recovery of the crime weapon. Thereafter, on pointation, made by the
appellant/accused a T.T. pistol bearing No. 31042375, .30 bore along with a spare magazine,
and seventeen (17) live cartridges were recovered, while three live cartrid ges were present in
the magazine of the pistol. The articles recovered were taken into custody, and seizure memo
was prepared. Further, as the appellant/ accused failed to produce any licence or sanction for
the pistol, therefore, F.I.R. No.281 of 2008 Pol ice Station City, Quetta, was registered on
16th December, 2008. The police report was submitted, whereof the charge was framed on
3rd March, 2009 by the trial court to the effect: --
"That on 8 -12-2008, deceased Muhammad Khalid son of Abdul Manan was ent ering in the
Jinnah Cloth Market then you were there with pistol in your hand. You made firing on
deceased by the pistol. On 16 -12-2008 in connection F.I.R. No. 276 of 2008 your made
disclosure and lead the police to the recovery of crime weapon and subseq uently got
recovered one T.T. Pistol bearing Reg. No.31042375 .30 bore along with magazine and three
live cartridges in it behind the Cabin ( ) under the name and style of Dawood Electronics
near Naqsh Bandia Medical Store Shahra -e-Iqbal. On demand y ou failed to produce any
licence or permit of the same. Thus you have committed offence which is punishable under
section 13 -E Arms Ordinance within the cognizance of this court."
The appellant/accused pleaded not guilty of the charge, thereby claimed tr ial. Three witnesses
appeared to substantiate the charge, while in rebuttal the appellant/accused neither produced
any evidence, nor recorded his statement on oath. The trial court through judgment dated 18th
March, 2008 arrived to the conclusion that the prosecution is successful in establishing the
case, thereby convicted the appellant, awarded sentence of three years' rigorous
imprisonment, and Rs.30,000 as fine. Being aggrieved of the judgment the instant appeal has
been filed.
3. The prosecution wi tness No. 1 (P.W.1) Muhammad Nasir, A.S. -I., disclosed the
fact that on 16th December, 2008, in case F.I.R. No.276 of 2008, for the offence under
section 302 Pakistan Penal Code (P.P.C.) the arrested accused Mahmood Ahmed (the
appellant) during course of investigation made disclosure, thereby admitted the murder of
Muhammad Khalid by making firing at him, and showed his willingness to recover the crime
weapon, which was hidden by him behind a cabin situated at Qandhari Bazzar near
Naqshbandia Medical. T herefore, on this disclosure Noor Ahmed S. -I., Muhammad Asif
A.S.-I., and staff along with DSP investigation Ghulam Dastagir took appellant/accused and
reached at Qandhari Bazzar near Naqshbandia Medical. Whereupon the appellant/accused
made pointation of the cabin situated at Qandhari Bazzar, having sign board of Dawood
Electronics, thereby he (accused) by himself took out a .TT pistol bearing No.31042375
along with a spare magazine, and 17 live cartridges, and 3 live cartridges in the magazine of
the pist ol wrapped in a plastic. Further, the accused failed to produce any licence or permit
for it. It was further statement of P.W.1 that all the recovered articles were taken into custody,
sealed parcel was prepared, and instant case was registered. This witne ss produced written
report as Exh.P/1 -A, recovered pistol and cartridges as Art/P -1 to Art/P -4.
P.W.2 Muhammad Mehdi, though during cross -examination described his presence at the
place of recovery of the pistol, but in his court statement he only stated that on 16th
December, 2008 he was posted at City Police Station, and on said night in presence of Abdul
Hameed H/C and him, the investigation was handed over to Asif Ali A.S. -I./P.W.1, while
photocopy of F.I.R. No. 276 of 2008, and carbon copy of recover y memo of crime weapon
was produced, which was taken into custody by said Asif Ali. Whereby, seizure memo was
prepared, which was signed by him (the witness) and Abdul Hameed. He produced seizer
memo as Exh.P/2 -A and the photo copy thereby seized as Art/P -7 and Art/P -8. During course
of cross -examination he stated that all the mentioned proceedings were held in his presence.
While he remained at site since 2 -30 a.m. to 4:00 a.m.
P.W.3 Asif Ali, A.S. -I., is the investigating officer, he also stated about m aking of disclosure
by the appellant/accused on 16th December 2008, and further narrated, the facts pertaining to
the recovery of the TT pistol, on pointation of the appellant/accused.
4. This is the whole set of evidence that is on record. The trial cou rt while deciding the
point No.1 for determination noted that: --
"Admittedly accused made disclosure on 16 -12-2008 and during disclosure he admitted the
commission of crime. He willingly pointed out the place where he had hidden the crime
weapon and on h is pointation he himself brought out the crime weapon from the empty space
between the cabin and Naqsh -Bandia medical store situated at Sahara -e-Iqbal Quetta."
The material on record reveals that the disclosure memo prepared during the course of the
investigation and the pointation made by the appellant were not brought on record, nor any
witness of the same produced in this case. The trial court on mere assertions of P.W.1. and
P.W.3 noted down that the making of disclosure is an admitted fact. It is obs erved that the
appellant/accused never admitted making of disclosure before the investigating authorities,
nor effecting of recovery of crime weapon, nor even in his examination. The trial court failed
to discuss the evidence, rather simply arrived to the conclusion that the appellant/ accused
willingly pointed out the place, where he had hidden the crime weapon and made pointation
by himself". It is a simple reliance on the case as asserted by the prosecution, with failure to
discuss the material on record .
5. It appeared from the prosecution's evidence that the memo of recovery was prepared
whereby the recovered pistol, and other articles were taken into custody. Though the carbon
copy of the same is produced as Art/P -8, but it is noted that the marginal witness of this
seizure memo was not produced; rather the only marginal witness of seizure memo Exh.P/2 -
A, whereby this carbon copy was taken into custody, was produced as P.W.2. The other
witness of this seizure memo was Abdul Hameed, who was the most re levant witness to
prove both the occasions, because he also signed Art/P -8 as a witness. But the prosecution
failed to produce him before the court. Only taking into custody of seizure memo is not
sufficient, rather evidence was required to establish at fi rst instance the disclosure made by
the appellant, and thereafter, the recovery of crime weapon made on the pointation by the
appellant/accused. But the disclosure so made was not proved. Further from the evidence on
record, it appears that the said pistol and the shopping bag along with the live cartridges were
hidden behind a cabin. But no evidence produced to establish existence of cabin at the site.
Though P.W.1 stated that the said cabin was rented out by the appellant/accused to a person
and the stat ement of said person was recorded. But the Investigating Officer did not despose
anything to the effect. Rather it was his statement that he did not investigate about the
ownership of the cabin. Further, the Investigation Officer P.W.3 admitted that the p lace from
where the recovery was effected is an open place without any obstruction. The question
remained that whether an article can be hidden in such a place for quite a time. In addition the
Investigating Officer during course of cross -examination in re ply to a suggestion stated that
he did not remember that whether on the date of recovery the accused was under custody or
otherwise. He further stated that the recovered pistol was handed over to Malkhana ( ).
He further stated that he did not mak e any entry in respect of case property in the relevant
file.
6. This whole set of evidence on record failed to establish the recovery of pistol on
pointation made by the appellant/accused. It is further apparent that no investigation was
carried out in present case. Rather, the material collected in other case was relied upon
without bringing them on record of this case, which cannot be legally relied upon in the
circumstances.
7. Due to all the discrepancies as noted herein above the case of the prose cution become
doubtful, and benefit of the same has to be extended in favour of the appellant/accused. But
the trial court failed to exercise the same, rather simply relied on the assertions made by the
prosecution, without assessing the assertions on basi s of the evidence on the record.
In view of the above discussion, the appeal is hereby accepted. The conviction order dated
18th March 2000 is hereby set aside. The appellant Mahmood Ahmed son of Muhammad
Dawood is acquitted of the charge under section 1 3(e) of Arms Ordinance, 1965, in F.I.R.
No.281 of 2008 Police Station City Quetta. The appellant be released at once, if not required
in any other case.
H.B.T./51/Q Appeal accepted.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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