2021 M L D 1364
[Balochistan (Sibi Bench)]
Before Muhammad Hashim Khan Kakar, J
SEWA KHAN---Appellant
Versus
The STATE ---Respondent
Criminal Appeal No.(s)58 of 2020, decided on 14th October, 2020.
(a) Pakistan Arms Ordinance (XX of 1965)--- ----S.13---Unlicensed possession of arms ---Appreciation of evidence ---Scope ---Allegation
against accused was that he, in order to avoid his arrest, opened firing upon the Levies
personnel which resulted in firearm injury to a constable, however, he was ove rpowered and
was found to be in possession of an SMG rifle along with 3 magazines containing 35 live cartridges ---Injured constable was not produced before the Trial Court nor was his medical
certificate produced ---No empties were recovered from the place of occurrence by the
Investigating Officer---Burden was on the prosecution to prove not only that the firearm was recovered from the possession of accused but also that he was not possessing any valid licence to keep the same--- Weapon recovered from the possession of accused was never sent
to the Ballistic Expert, therefore, without ascertaining the nature of weapon and its condition punishment could not be awarded ---Appeal against conviction was allowed, in
circumstances.
Rahim Bux v. State 2010 PCr.LJ 642 rel.
(b) Criminal trial ---
----Guilt against the accused must rest surely and firmly on the evidence produced in the case and plain inference of the guilt may irresistibly be drawn from the evidence.
Imam Sher Marri for Appellant.
Abdul Mateen, Deput y Prosecutor General for the State.
Date of hearing: 28th September, 2020.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. -----This Criminal Appeal has been
directed against the judgment dated 21.08.2020 ("impugned judgment"), passed by learned
Sessions Judge, K ohlu ("trial Court"), whereby the appellant Sewa Khan son of Karam Khan
was convicted under section 13(e) of Pakistan Arms Ordinance, 1965 and sentenced to suffer
three (03) years rigorous imprisonment with fine of Rs.5,000 (Rupees five thousand only), in default whereof to further undergo six (06) months simple imprisonment. Benefit of section 382- B, Cr.P.C was also extended in his favour.
2. Briefly stated facts of the prosecution case, as per FIR, are that the complainant
Dafedar Abdul Ghani lodged FIR N o. 03/2020, with Levies Station Lasayzai, Kohlu, under
section 13(e) of Pakistan Arms Ordinance, 1965, alleging therein that on the fateful day, they tried to arrest the appellant being wanted in Crime No. 02/2015, who in order to avoid his
arrest, opened firing upon the Levies personnel, which resulted firearm injury to one
Suleman, constable, however, the appellant was overpowered and he was found in possession of a SMG rifle along with three magazines, containing 35 live cartridges.
3. After registration of FIR, formal investigation was conducted and after completion of
the same, challan of the case was submitted before the learned trial Court.
4. After codal formalities the learned trial Court framed charge, to which the appellant
denied and claimed tria l. In order to substantiate the charge against the appellant, the
prosecution produced three witnesses. After close of prosecution side, the appellant was examined under section 342, Cr.P.C, wherein once again he denied the allegations of the prosecution. The appellant neither opted to record his statement on oath as envisaged under
section 340(2), Cr.P.C., nor produced any witness in his defense.
5. On completion of the trial, the learned trial Court heard arguments and thereafter,
convicted the appellant in the terms as mentioned hereinabove, hence this appeal.
6. I have heard Mr. Imam Sher Marri, learned counsel for the appellant, Mr. Abdul
Mateen, Deputy Prosecution General and also perused the available record.
7. After hearing the learned counsel for the parties, I am of the considered view that the
prosecution has failed to prove its case against the appellant for the following reasons:
i) Firstly, it is case of the prosecution that the appellant, at the time of his arrest made firing, whi ch resulted in inflicting firearm injury to constable Suleman, but it is
astonishing to observe that neither the medial certificate nor the said Suleman was produced and examined in order to substantiate the allegations;
ii) Secondly, as per the prosecution witnesses, the firing was made by both the parties at
the time of incident, but no empties were recovered from the place of occurrence by
the Investigating Officer, which creates serious doubt in the prosecution version;
iii) Thirdly, in case of recovery of firearm, the burden lies on the prosecution to prove
that not only was the firearm recovered from the possession of the accused/appellant, he was also not possessing any valid license to keep the same or that the firearm
recovered from him was unlicens ed. After having gone carefully through contents of
the FIR, I find that there is no mention to the effect that the appellant was asked to
produce license or he had no license to keep the same at the time of alleged recovery.
This being the position, it is not possible to maintain the conviction and sentence of
the appellant;
iv) Fourthly, it is quite astonishing to observe that the alleged recovered weapon from the possession of the appellant Sewa Khan was never sent to the Ballistic Expert, therefore, wit hout ascertaining the nature of weapon and its condition, punishment
cannot be awarded under section 13- E of the Arms Ordinance, 1965 and it is ballistic
expert, who can ascertain the nature of weapon and its condition, being functional or not, because if the weapon is not in working condition, it can be presumed to be a piece of metal. While holding this view, I am fortified from the dictum laid down by this Court in the case of Rahim Bux v. State, (2010 PCr.LJ 642), wherein this Court has held as under:
"Non -sealing of alleged recovered arms and ammunitions and non- sending thereof to
expert regarding functional condition of alleged pistol, perhaps uprooted the entire
prosecution case and the edifice of prosecution case built in such situation is bound to
fall for intentional departure from normal course."
8. It is well settled principle of dispensation of justice in criminal cases that guilt against
the accused must rest surely and firmly on the evidence produced in the case and plain
inference of the guil t may irresistibly be drawn from the evidence.
For the above reasons, the instant appeal was allowed by a short order dated
28.09.2020, whereby the appellant was acquitted of the charge under section 13(e) of Pakistan Arms Ordinance, 1965 with directions to be released forthwith, if not required in
any other criminal case.
SA/260/Bal. Appeal allowed.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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