2025 M L D 70
[Balochistan]
Before Muhammad Hashim Khan Kakar CJ and Shaukat Ali Rakhshani, J
HOTAK alias Sapak ---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. 327 of 2023, decided on 11th September, 2024.
Pakistan Arms Ordinance (XX of 1965) ---
----S. 13--- Possession of illicit weapon ---Appreciation of evidence ---Prosecution case was
that rifle .303 bore had been recovered on the disclosure of accused during investigation of a
criminal case--- Record showed that complainant testified that on 27.07.2022, he along with
other levies personnel under the supervision of Investigation Officer at 2:50 pm went to the house of the accused, where on the pointation of accused Rifle .303 bore was recovered, whereafer he sent an application for registration of FIR ---Levies Constable corroborated the
testimony of complainant and reiterated what he had deposed--- Said Constable was recovery
witness of the Rifle .303 bore, which was secured through the recovery memo.---Testimony of both the witnesses could not be shattered despite lengthy cross -examination ---No license
was produced by the accused ---Investigating Officer stated that on 20.07.2022 accused was
arrested in two different murder cases and on 26.07.2022, during investigation of those case s
accused made disclosure and in consequence thereof on 27.2022, the accused let them to his house at 2:50 pm, where he got recovered Rifle .303 bore, which was secured through the recovery memo. ---Investigating Officer also produced positive Forensic Science Laboratory
Report of Rifle .303 bore, revealing the pistol to be in working condition---Despite lengthy and exhaustive cross -examination, the defence failed to extract any favorable reply, thus
Investigating Officer's deposition went unshaken ---As far as non -association of private
witness was concerned, the recovery had been made on the pointation of accused in consequence of a disclosure, thus, compliance of S.103, Cr.P.C, was not mandatory and its violation was not fatal to the case of the prosecution ---Circumstances established that the
prosecution had proved the case beyond any glimpse of doubt ---Appeal against conviction
was dismissed accordingly.
Ashraf Dad Kakar for Appellant.
Abdul Latif Kakar, APG for the State.
Date of hearing: 8th August, 2024.
JUDGMENT
SHAUKAT ALI RAKHSHANI, J .---Appellant, Hotak alias Sapak has put in the
captioned appeal to set at naught the judgment dated 27.07.2023 ("impugned judgment")
rendered by learned Sessions Judge, Killa Saifullah ("Trial Court"), whereby he was convicted and sentenced under section 13 (e) of the Arms Ordinance of 1965 ("Ordinance of 1965") to suffer three (3) years R.I with a fine of Rs.20,000/ - (Twenty thousand) and in
default thereof, to further undergo for a period of three (3) months S.I with the premium of section 382- B of Criminal Procedure Code, 1898 ("Cr.P.C.") in a case vide FIR No.25 of
2022 (Ex.P/3- A) dated 27.07.2022 registered with Levies Station, Killa Saifullah.
2. Compendiously, the crime report ibid reveals that on 27.07.2022, while the appellant
was being investigated in a case vide FIR bearing No.25 of 2014, he made disclosure and on his pointation levies officials got recovered Rifle .303 bore, having No.H -6079 from a room
of house of the appellant, situated at Qandeel Batozai, Killa Saifullah, whereof he failed to produced any valid license.
The appellant was put on trial, where on commencement of the trial, the appellant
entered the plea of denial, thus, the prosecution in order to bring home the charge, produced
three (3) witnesses, and after close of the prosecution side, the appellant was examined under section 342 of Cr.P.C., who denied the allegations and professed innocence, whereafter the appellant neither deposed on oath nor produce any defence, henceforth on conclusion of the
trial, the appellant was convicted and sentenced in the terms mentioned in the para supra.
3. Mr. Ashraf Dad Kakar, learned counsel for the appellant inter alia contended that the
mode and manner in which recovery has been affected is improbable and that no private
witness was associated while making recovery of the crime weapon. He maintained further that there are material contradictions in the statements of the prosecution witnesses, which has made the entire case doubtful, but the Trial Court has failed to take into consideration such aspect of the matter and has recorded the conviction for the reasons contrary to the evidence available on record. On the basis of above illegalities, learned counsel for the appellant, prayed for acquittal of the appellant.
On the other hand, Mr. Abdul Latif Kakar, learned APG resisted the appeal and
refuted the contentions advanced by the learned counsel for the appellant. He urged that the prosecution has proved the case to the hilt and has also successfully established the recovery of the weapon in question through tangible evidence, substantiated by the FSL report regarding the crime weapon to be in working condition and that the Trial Court has rightly convicted and sentenced the appellant, which needs not to be interfered with, and as such requested for dismissal of the appeal.
4. Heard. Record pondered upon. Rozi Khan Levies Constable ("LC") (PW -1) testified
that on 27.07.2022, he along with other levies personnel under the supervision of Muhammad
Essa Investigation Officer ("IO") (PW -3) at 2:50 pm went to the house of the appellant,
situated at Qadeel Batozai, where on the pointation of appellant Rifle .303 bore was
recovered, whereof he sent an application (Ex.P/1- A) for registration of FIR. Abdul Qayum
LC (PW -2) corroborated the testimony of complainant Rozi Khan (PW -1) and reiterated what
he had deposed. He is recovery witness of the Rifle .303 bore, which was secured through
recovery memo. (Ex.P/2 -A). He produced parcel, sample of seal, and rifle along with its cover
as Art.P/2 -1 to Art.P/2 -3. The testimony of both the aforementioned witnesses could not be
shattered despite lengthy cross -examination. No license was produced by the appellant.
Muhammad Essa Naib Risaldar (PW- 3), being the IO stated that on 20.07.2022 appellant was
arrested in two different murder cases. He further testified that on 26.07.2022, during investigation of the case vide FIR bearing No.25 of 2014 appellant made disclosure and in consequence thereof on 27.07.2022, the appellant led them to his house at 2:50 pm, where he got recovered Rifle .303 bore, which was secured through recovery memo. (Ex.P/2 -A). He
also produced positive FSL report (Ex.P/3 -E) of Rifle .303 bore, revealing the pistol to be in
working condition. Despite lengthy and exhaustive cross -examination, the defence failed to
extract any favorable reply, thus his deposition went unshaken.
As far as non -association of private witness is concerned, it is imperative to add here
that the recovery has been made on the pointation of appellant in consequence of a disclosure, thus, compliance of section 103 of Cr.P.C. is not mandatory and its violation is not fatal to the case of the prosecution.
5. In view of the evidence available on record, we are of the considered view that the
prosecution has proved the case beyond any glimpse of doubt and that the impugned judgment is based upon proper appraisal of evidence, suffering from no infirmity or misreading of evidence, thus we are reluctant to meddle with the impugned judgment.
6. In wake of the above, the appeal is dismissed, and conviction and sentence awarded to
the appellant by the Trial Court vide impugned judgment dated 27.07.2023 is hereby maintained accordingly.
JK/85/Bal. Appeal dismissed.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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