2010 P Cr. L J 642
[Quetta]
Before Muhammad Noor Meskanzai, J
RAHIM BAKHSH ----Petitioner
Versus
THE STATE ----Respondent
Criminal Revision Petitions Nos.(S)56 and (S)57 of 2009, decided on 30th October, 2009.
(a) Penal Code (XLV of 1860) ---
----Ss. 353 & 337 -H(2) ---West Pakistan Arms Ordinance (XX of 1965), S.13(e) ---Assault
or criminal f orce to deter public servant from discharge of his duty, causing hurt by rash
or negligent act and keeping in possession unlicensed arm ---Appreciation of evidence ---
Enmity of accused with police officials particularly the S.H.O. was not only established
rather was admitted on record ---Mala fides on the part of prosecution were also apparent
on the face of record ---Prosecution witnesses had improved their previous statements at
the trial ---Non-sealing of the recovered articles at the spot and non -sending of the pistol
of accused to the Ballistic Expert for knowing its functional condition, had uprooted the
entire prosecution case ---Despite availability of private persons at the site, none of them
was associated with the proceedings and impartial evidence was not collected by the
police ---Failure of the prosecution to produce entry in Roznamcha in Court being an
inherent legal defect, had further damaged its case ---Accused was acquitted in
circumstances.
1995 MLD 1532; 1992 PCr.LJ 1287; Abdul Sattar and othe rs v. The State 2002 PCr.LJ 51;
Fareed Ahmed Langra v. The State 1998 PCr.LJ 1368; Qolandaro 's case 1997 MLD 1632;
Loung through Superintendent Central Prison, Hyderabad v. The State 1999 PCr.LJ 595;
Sajjan v. The State 1998 PCr.LJ 1399 and 2002 PCr.LJ 450 ref.
(b) Penal Code (XLV of 1860) ---
----Ss. 353 & 337 -H(2) ---West Pakistan Arms Ordinance (XX of 1965), S.13(e) ---Assault
or criminal force to deter public servant from discharge of his duty and causing hurt by
rash or negligent act ---Appreciation of evidence -Non-production of "Roznamcha Entry"
in Court ---Effect ---Lapse of prosecution to produce "Roznamcha Entry" in Court to prove
that the police in fact proceeded to the place of scene to recover weapons, cuts at the
roots of its case making the entir e episode doubtful.
Abdul Sattar and others v. The State PCr.LJ 2002 Kar. 51; Fareed Ahmed Langra v. The
State 1998 PCr.LJ 1368 and Qalandaro's case 1997 MLD 1632 ref.
(c) West Pakistan Arms Ordinance (XX of 1965) ---
----S. 13(d) ---Keeping in posse ssion unlicensed arm ---Appreciation of evidence ---Non-
sealing the recovered weapons at the spot and non -sending the same to Ballistic Expert
for opinion ---Effect ---Conviction under section 13(d) of the West Pakistan Arms
Ordinance, 1965, cannot be maintain ed unless the weapons recovered from the accused
were sealed at the spot and the opinion of Forensic/Ballistic Expert was produced on
record to prove that the same were in fact functional and fell within the category of
weapons exclusively triable by the S pecial Court, STA.
Loung through Superintendent Central Prison, Hyderabad v. The State 1999 PCr.LJ 595 and
Sajjan v. The State 1998 PCr.LJ 1399 ref.
Muhammad Riaz Ahmed for Petitioner.
Miss Shahida Parveen for the State.
Date of hearing: 9th Oc tober, 2009.
JUDGMENT
MUHAMMAD NOOR MESKANZAI, J .--- Through this common judgment, I intend to
dispose of Criminal Revision Petitions Nos.(S)56 and 57 of 2007 filed by petitioner against
the judgments dated 30th November, 2007 passed by Sessions Judg e, Nasirabad at Dera
Murad Jamali, partially upholding the Orders dated 13th November, 2007 passed by Judicial
Magistrate, First Class, Dera Murad Jamali, whereby; the petitioner was convicted and
sentenced as under: ---
Under section 427, P.P.C. acquitte d from the charge.
Under section 353, P.P.C. modified the sentence from six months to that of three
months' R.I. with fine of Rs.500 in default of payment of fine further suffer one
month's S.I.
Under section 337 -H(2) uphold the said sentence.
Under section 337 -H(2) for two months' R.I. with fine of Rs.400 in default of
payment of fine he would further undergo 20 days' S.I.
Under section 427, P.P.C. to suffer six months' R.I. with fine of Rs.500 in default of
payment of fine he would undergo one mon th's S.I.
Under section 353, P.P.C. to suffer six months' R.I. with fine of Rs.500 or in default
of payment he was directed to further undergo one month's S.I.
Benefit of section 382 -B, Cr.P.C. was also extended in favour of appellant.
Besides, all t he sentences were also directed to run concurrently.
Under section 13 -E, Arms Ordinance, 1965 to suffer six months' (R.I.) with fine of
Rs.500 or in default of payment he was directed to further undergo one month's S.I.
Benefit of section 382 -B Cr.P.C. was also extended in favour of appellant.
2. Brief facts of the instant petitions are that on 6th November, 2006 at about 6 -00 p.m.,
according to prosecution case, the petitioner was in a drunken condition, making aerial firing,
creating terror and horr or among masses, when police tried to intercept petitioner, he
intentionally fired upon police officials to commit their murder, however; through an
effective policy and a tactful manner was arrested by police. This story conceived three
F.I.Rs. against pe titioner, F.I.R. No.136 under sections 324, 337 -H(2), 353, 186, 427, 504 and
506, P.P.C., whereas F.I.R. No.137 of 2006 was registered under section 13 -E, Arms
Ordinance, 1965 and F.I.R. No.138 of 2006 was registered under Article 11 of Prohibition
(Enforc ement of Hadd) Order, 1979.
These F.I.Rs. culminated in submission of three Challans under different offences. Petitioner
was acquitted by Judicial Magistrate vide order dated 13th November, 2007 in case F.I.R.
No.138 of 2007 of Offences under Prohibitio n (Enforcement of Hadd) Order, 1979. As far as
F.I.R. No.136 of 2006 is concerned, charge was framed only under sections 337 -H(2), 353,
427, 186, 504 and 506. It is important to note here that no charge under section 324, P.P.C.
was framed.
F.I.R. No.137 of 2006, petitioner was found guilty under section 13 -E, Arms Ordinance,
1965. Similarly; in F.I.R. No.137 of 2006, petitioner was also convicted under section 337 -
H(2) for two months' R.I. with fine of Rs.400 in default thereof to further suffer 20 days' S.I.
Under section 427, P.P.C., petitioner was convicted for six months' R.I. with fine of Rs.500
or in default whereof to further suffer one month's S.I. Under section 353, P.P.C., petitioner
was sentenced for six months' S.I. All the offences were order ed to run concurrently.
Petitioner filed Appeals Nos.16 and 17 of 2007 against the judgments mentioned hereinabove
in the Court of Sessions Judge, Sibi respectively. Appeal No.16 of 2007 was dismissed;
whereas, Appeal No.17 of 2007 was partially allowed i. e. petitioner was acquitted of the
charge under section 427, P.P.C. Sentence inflicted under section 353, P.P.C. was reduced to
three months' R.I. with fine of Rs.500, however; sentence under section 337 -H(2), P.P.C. was
maintained. Being aggrieved with th e judgments referred to hereinabove petitioner filed the
present petitions.
3. I have heard Mr. Muhammad Riaz Ahmed, learned counsel for the petitioner and Miss.
Shahida Parveen, Advocate for the State. Learned counsel for the petitioner contended that i n
fact there was enmity between petitioner and the police officials, particularly with S.H.O., so
to quench that thirst of enmity, petitioner was tried to be booked by hook or by crook,
therefore; he has been dragged in three criminal cases simultaneously. The learned counsel to
supplement his arguments invited attention of this Court towards the judgment of Sessions
Judge, Naseerabad at Dera Murad Jamali in Criminal Miscellaneous Application No.101 of
2006 disposed of on 14th June, 2006. He submitted that mother of petitioner namely Mst. Dur
Naz Bibi filed a complaint before this Court and this Court was pleased to direct her to file
application under section 22 -A, Cr.P.C. before Sessions Judge, Dera Murad Jamali, so said
application was filed. The learned counsel submitted that the learned Sessions Judge, while
disposing of said application categorically held as under: ---
In view of this situation, case of prosecution was suffering from certain inherent defects;
firstly no private person was associated wi th recovery, secondly non -sealing of alleged
recovered arms and ammunitions at the spot, further disproves the .prosecution case and
thirdly non -sending of alleged recovered articles to expert in order to ascertain working
condition of alleged recovered ar ticles, were neither adhered nor dilated upon, so in the
circumstances, the learned trial Court committed irregularity by believing prosecution case
and learned appellate court committed illegality while not appreciating these legal aspects of
the case. Wi th regard to Appeal No.57, he submitted that concocted story was fabricated
against petitioner, in order to achieve object, police made false statements, as initially police
submitted Challan under the above mentioned sections including section 324, P.P.C. , but the
learned trial Court did not frame charge under section 324, P.P.C., so prima facie the learned
trial Court did not believe the story of prosecution meaning thereby; the prosecution story
was unbelievable. To substantiate his contention, he invite d my attention to the statement of
P.W. Muhammad Saleem, A.S. -I. stated that
He submitted that in such situation, one can easily draw inference that to what extent
prosecution was determined and bent upon to make out case through thick and thin. He next
contended that all the three cases, same P.Ws. were produced and further since there was
allegations against petitioner that he has created terror and horror among the masses, so in
this respect prosecution was bound to have produced evidence from masses, who were
allegedly being terrified and horrified by petitioner. The next limb of arguments was that
petitioner was acquitted of the charge under section 427, P.P.C. The learned counsel while
making reference to the judgment of appellate Court submitted tha t prosecution case was not
believed in toto, even by appellate Court. He further pointed out that clear improvements
made by witnesses during course of trial and submitted that in these circumstances, no case
was made out against petitioner.
The learned State counsel Miss. Shahida Parveen, Advocate half heartedly opposed the
petition, however; conceded that despite availability of private persons, police failed to
associate them.
I have heard both the counsel for the parties and have also gone through i mpugned order.
Perusal of record reveals that petitioner was booked in three cases simultaneously by
prosecution and produced the following P.Ws: ---
P.W.1. Muhammad Saleem, A.S. -I. who while recording statement reiterated the
contents of F.I.R. and state d that on 6th November, 2006, they were on area patrolling
along with Akbar Ali, A.S. -I. and Sikandar Ali, Head Constable, Hazoor Bakhsh,
Constable, Jewan Khan, Constable and Tayyab Khan Constable when they reached
Gujjar Hotel, they saw one person namely Rahim Bakhsh (appellant), whom they
knew earlier, having a T.T. pistol in his hand and making aerial firing. Police tried to
intercept him, but he with intention of murderous assault made aerial firings upon
police officials, however; he was overpowered an d in this situation he started
scuffling with police officials, broke the official walky -talky and also tore official
uniform of Akbar Ali, A.S. -I., so he was arrested and a T.T. pistol (un -number) along
with some bullets were recovered and a letter for re gistration of case under sections
324, 353, 186, 337 -H(2), 504 and 506, P.P.C. was sent against petitioner. In cross -
examination, he admitted that application under section 22 -A, Cr.P.C. was moved
against them in the Court of Sessions Judge, Sibi, voluntar ily stated that the same was
registered after registration of this case. He expressed his ignorance regarding
application filed by brother of petitioner regarding torture of petitioner in Police
Station. He expressed his ignorance that petitioner was medic ally examined on the
direction of Judicial Magistrate. He denied suggestion that at the instance of SHO
Khalid Zaman Marri, false cases were made against petitioner. He also denied that
during course of arrest petitioner was beaten. This P.W. produced F.I. R. as Exh. P/1 -
A.
P. W.2. Sikandar Ali, Head Constable stated that on 6th November, 2006 at about 6 -
00 p.m. when police officials were on patrolling, reached near Gujjar Hotel, they saw
Rahim Baksh (petitioner), who was making aerial firings. It appeared that he was in
intoxicated condition. All the police officials tried to cover petitioner, but he started
quarrelling, torn uniform of Akbar and broke the official walky -talky. They arrested
the petitioner, who was removed to hospital, because he was in in toxicated condition.
He produced the articles mentioned in recovery memo as Articles and Exhibits
Exhs.P/2 -A, Art.P.1, Art.P.3, Art.P.2, Art.P.4, Art.P.12, Art.P.13, Exhs.P/2 -B,
Art.P.1, Art.P.4, Exhs. P. /2 -C, Art. P.1 and Art.P.2. In cross -examination in reply to a
question, he admitted that he has not mentioned in his statement recorded under
section 161, Cr.P.C. that it appeared that petitioner Rahim Bakhsh seemed to have
been in intoxicated condition. He further admitted that he has not stated in his
statement under section 161, Cr.P.C. that petitioner was removed to hospital,
because he was in intoxicated condition. He further admitted that case property
was not sealed at the spot. He also admitted that no special mark was assigned to
official walky -talky. He also admitted that it is correct that official uniform
produced is not sealed. He also admitted that T.T. pistol (Qamar Band Nawari)
were not specially marked. It is important to note here that these articles, which
were produced before the Court, were neither put in any parcel nor the same were
sealed.
P.W.3. Nasir Jewan Khan, Constable stated that on 6th November, 2006, they were
on patrolling duty when they reached near Gujjar Hotel, A.S. -I. Saleem stated that
a person is in intoxicated conditi on making firing, who was arrested and removed
to hospital, however; accused was identified with the name of Hazoor Bakhsh. He
further stated that petitioner quarrelled with Saleem, A.S. -I. and Akbar, A.S. -I.
P.W.4. Tayyab Khan, Constable stated that on 6th November, 2006, he was on
patrolling along with other police officials and at about 6 p.m. when they reached
Gujjar Hotel, they saw accused Rahim Bakhsh, having a T.T. pistol in his right
hand, making firing and creating terror and horror among the mas ses. A.S. -I.
Muhammad Saleem including other police officials tried to capture him, but he
with intention of murderous assault fired upon police officials, who applying great
tactics and arrested accused. During the course of quarrelling with accused,
official shirt of one of the officials was torn and walky -talky was also broken. In
cross -examination, he stated that at venue so many people were standing, but no
statement was recorded near Gujjar Hotel. He stated that they heard two aerial
firings at the sp ot, whereas; three empties were recovered. In reply to question, he
stated that on seeing police officials, he made two firings and then made another
fire,
P.W.5. Akbar Ali, A.S. -I. stated that on 6th November, 2006, they were on
patrolling. Probably at about 6 p.m. when they reached near Gujjar Hotel, there
was a huge crowed of people. He saw Rahim Bakhsh (petitioner), who was
standing there, having a T.T. pistol in his right hand and on seeing police officials,
with the intention of murderous assault ma de firing upon them. Police party
tactfully tried to overpower the accused. He further stated that he and petitioner
Rahim Bakhsh quarrelled with each other and Saleem snatched the T.T. pistol
from Rahim Bakhsh, then he was overpowered. He further deposed that petitioner
Rahim Bakhsh started resistance, tore his uniform's shoulder broke the official
walky -talky and abused the police officials. He further stated that they recovered
from the petitioner a T.T. pistol, two magazines, eight live cartridges and f our
empty bullets, which were taken into possession and petitioner was asked to
produce license of T.T. pistol which he failed to produce. He further stated that
thereafter petitioner was taken to hospital, who was in intoxicated condition. He
further stat ed that when the petitioner was being put into the vehicle, he was
injuring himself by colliding his head with official vehicle. During the course of
cross -examination, at the request of petitioner's learned counsel, Nawari Phatta
was made to wear him, whi ch was not fit to him. In reply to a question, following
exercises were made: ---
He admitted that it is correct that a complaint against them was made in the Court
of Sessions Judge, Nasir Abad by petitioner, voluntarily stated that in that case
they wer e acquitted.
P.W.6. Ali Hassan, S. -I. stated that on 6th November, 2006, he was posted as
Investigating Officer in Police Station, City. Case under section 13 -E was
registered against petitioner on the written Murasala of A.S. -I. Muhammad Saleem
in Case No.137 of 2006 and investigation whereof was entrusted to him. He stated
that on reaching at the spot, he came to know that petitioner was in intoxicated
condition, who was taken to hospital by A.S. -I. Muhammad Saleem for medical
checkup. He further stated that he was handed over a T.T. pistol, two magazines,
eight live cartridges and a Kamar Phata Nawari, prepared Fard Maqboozgi
recorded statement under section 161, Cr.P.C. He stated that petitioner was shifted
to judicial lock -up on 7th November, 2006. He stated that he handed over all the
documents to IP/SHO Khalid Zaman, who prepared Challan against petitioner and
produced it before the competent Court. He identified signatures of IP/SHO
Khalid Zaman on Challan, which is produced as Exh.P/6 -A. In cross -examination
he stated that T.T. pistol was handed over to him by A.S. -I. Muhammad Saleem at
the spot. He admitted that he was handed over a T.T. pistol, two magazines, eight
live cartridges and Nawari Kamar Phata.
6. A perusal of record reveals that enmit y of petitioner with police officials and particularly
the S.H.O. of the concerned police station is not only established; rather admitted. As
observed by learned Sessions Judge, Dera Murad Jamali while disposing of application under
section 22 -A, Cr.P.C. and the relevant portion has already been reproduced, so in the
circumstances, mala fide on the part of prosecution cannot be ruled out, particularly so when
procedure prescribed under the law for conducting search, effecting recovery etc. were
deliberatel y and intentionally avoided. Deviation from normal and procedure reflects mala
fide on the part of prosecution, therefore; this argument prevails. As far as next contention of
learned counsel with regard to submission of Challan in various offences are con cerned, this
argument is also supported by record for various reasons, firstly, insertion of section 324,
P.P.C. in the case, whereas prima facie this section was at all un attractable, because
according to statement of P.W. at first instance there is alle gation of aerial firing and on the
same breath P.W. who is an A.S. -I. states that accused with intent of murderous assault made
aerial firing upon them. By no stretch of imagination, such statement can be accepted for
attraction of section 324, P.P.C. It a ppears that prosecution was bent upon to book the person
by hook or by crook. The statement of P.W.2 is absolutely silent with regard to murderous
assault by means of firing upon police officials and P.W.3 does not speak anything in respect
of firing seen or heard by him, nor states that when petitioner was arrested anything was
recovered from him. Keeping in view these glaring defects in statements of P.Ws, it can
easily be concluded that mala fide on the part of prosecution are so apparent, which cannot
escape sight by a prudent man, if the prosecution story may not be concocted, but seems to be
quite suspicious and is not free of doubt and subsequent satisfaction of prosecution with
regard to non -framing of charge under section 324, P.P.C. is a circumstan ce, which further
weakens the prosecution story. Non -association of private persons with regard to recovery
proceedings and non -examination of private persons, who allegedly were terrified, has got
sufficient force. Perusal of record further reveals that a t the time of alleged incident, there
was crowed at the spot and incident took place near a hotel at 6 -00 p.m. in the month of
November, 2006, perhaps it was time of Maghrib prayers, incident occurred. According to
prosecution all the proceedings of recove ry and thereafter statements of prosecution
witnesses were recorded at venue, but it is not known that what was source of light and as to
how these statements were recorded. Moreover, according to police, there was an act of
terrifying masses, but not a si ngle statement of private person to that effect was recorded,
despite the admitted fact by prosecution that there was rush and a crowed of people was
there. The incident is stated to be allegedly taken place near a hotel, but non -examination of
any passerb y, shopkeeper or someone from the hotel persons, transpires the fact that police
voluntarily and deliberately did not record the statement of any independent person. An
alleged attempt was made by prosecution by stating that they have tried to make some
persons witness, but people were reluctant; neither name of any person was shown nor any
legal proceedings, as contemplated in law against such person, who fails to help and assist the
officials in performance of legal function. So this is another circumstan ce on factual side,
which shakes case of prosecution and makes it doubtful. Another important feature
enfeebling prosecution case is that prosecution story was not believed in respect of certain
section by the appellate Court, whereby; appellant was convic ted and the learned appellate
Court while disbelieving prosecution story to that extent acquitted the appellant, so as to why
believe the same set of evidence in respect of other sections. It may not be out of place to
mention here that no grievance has be en shown by prosecution against that acquittal, which
had attained finality. The improvements made by prosecution witnesses during course of trial,
have strengthened the stand of petitioner with regard to weakness of prosecution case and
mala fide apparent on the face of record. The most important feature of the case, which was
neither adhered to nor attended by the lower forums, was that all the alleged recovered
articles were never sealed nor were parcelled. There is no cavil with the legal proposition th at
according to section 24, provisions of Cr.P.C. have been made applicable with regard to
search of offences under the Arms Ordinance. Non -sealing of alleged recovered arms and
ammunitions and non -sending thereof to expert regarding functional condition o f 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. For non -
sending the alleged arms and ammunitions to a Ballistic Expert and secondly acquittal in
such-like cases, I am supported by the judgment reported in 1995 MLD 1532. Relevant
observations read as under: ---
(5). Notwithstanding the above, the kalashnikov, alleged to have been recovered in
this case was not sent to the Ballistic Expert for his opinion as to whether it was in
fact a kalashnikov rifle or otherwise an automatic or semi -automatic weapon. To
some extent, the judgment reported as 1992 PCr.LJ 1287 and relied upon by the
learned counsel for the appellant is att racted and binds the factual position of the
instant case. In the absence of any expert opinion, it cannot be held with legal
certitude that the weapon recovered is really of the kind alleged by the prosecution,
namely, automatic or semi -automatic weapon: This being so, the offence would not
fall within the teeth of the schedule to the Suppression of Terrorist Activities (Special
Courts) Act, 1975, which would render suspect the jurisdiction of the learned trial
Court. Thus the very basis for trial before S pecial Judge is altogether wanting in the
instant case. In other words, the trial in the Court of Special Judge stands vitiated. In
view of the quality of evidence that has been adduced from the prosecution side, the
conviction of the appellant cannot be s ustained. So whichever angle, the appeal is
looked at, it has force and merit and that it must succeed. Resultantly, the conviction
and sentence passed on the appellant is set aside and he is acquitted for the offence
charged with. The appellant is on bail , his bail bond is discharged and he is set free.
The fire -arm with ammunition recovered in the case stands confiscated to the State."
7. I am conscious of the fact that according to prosecution case, no search was held to be
conducted in a house and pre mises where the strict compliance of section 103, Cr.P.C. was
required. In this case since admittedly there is enmity between police and petitioner and
according to prosecution's own version not only there were independent persons available at
the site but a crowed was there and incident took place near a hotel, so in these peculiar
circumstances, collection of impartial evidence and association of private persons was
essential. Deviation by prosecution from this essential requirement is a circumstance, whi ch
further weakens the prosecution case. As far as non -sealing of recovered articles are
concerned, there is no cavil with the legal proposition that non -sealing of alleged recovered
weapons on the spot vitiates conviction. Moreover, it is clear that alleg ed recovered articles at
any stage of time were never sealed, so in my considered view, this circumstance itself is
sufficient enough to vitiate trial. Another important aspect of the case escaped sight of both
the Courts below, is prosecution failed to pr oduce entry in Roznamcha. This is again another
inherent legal defect damaging the prosecution case; by holding so I am supported with the
judgment reported in PCr.LJ 2002 (Karachi) page 51 titled as Abdul Sattar and others v. The
State in this case five A ppeals bearing Nos.257, 316, 140, 181 of 1996 and 3 of 2000 were
allowed through a common judgment and the cases under section 13 -D, Arms Ordinance,
where appellants were convicted by trial Court, were acquitted of the charge by High Court
on the point of non-production of entry in Roznamcha and non -sealing of recovered articles
at the spot. The relevant observations made in the said judgment are reproduced
hereinbelow: ---
(3) Admittedly, in neither of the cases in hand Roznamcha entry was produced by the
persecution in order to prove that the police, in fact, proceeded to the place of scene to
recover the alleged weapons. This lapse on the part of prosecution has cut the root of
the case of prosecution, thus, rendering the entire episode shrouded by doubt . This
fact by itself was enough to disbelieve the prosecution version. Reference can be
made to the case of Fareed Ahmed Langra v. The State reported in 1998 PCr.LJ 1368
and another Division Bench judgment in Qalandaro's case reported in 1997 MLD
1632.
(4) It is also an admitted fact borne out from the record that the weapons allegedly
recovered from the appellants were neither sealed on the spot nor the same were sent
to the Ballistic/Forensic Expert.
It is well -settled proposition of law that convict ion under section 13 -D of Arms
Ordinance could not be mail twined unless the weapons allegedly recovered were
sealed at the spot and the opinion of Forensic/Ballistic Expert is produced on record to
prove that the weapons so recovered were, in fact, functi onal and that the said
weapons fell within the category of weapons exclusively triable by the Special Court,
S.T.A. Reference may be made to case -law reported as "Loung through
Superintendent Central Prison, Hyderabad v. The State 1999 PCr.LJ 595 and Sajja n v.
The State 1998 PCr.LJ 1399."
Another judgment reported in PCr.LJ 2002 page 450, wherein it was held that: ---
"The record reveals that the S.M.G. Rifle and the live bullets were never sealed at all.
The station diary entry which ought to have been produced in evidence was also not
produced. The defects noted above and pointed out by the learned counsel for the
appellant appear to be material and supported by the record. The learned Assistant
Advocate -General has rightly not supported the impugned ju dgment.
In view of the above, the appeal is allowed and the impugned judgment is set aside.
The appellant is acquitted in the case. The appellant is stated to be in Jail. He shall be
released forthwith if not required to be detained in any other case."
In this behalf it is quite helpful, where non -sealing of rifle and non -sending of same to
Ballistic Expert for verification, whether it is in working condition or not, conviction under
section 13 -D was set aside and accused was acquitted.
8. So in the l ight of above legal position and in view of inherent defect on factual side in
prosecution case, I am of the opinion that the cases against petitioner are not free of doubt,
hence both the petitions are accepted and petitioner is acquitted of the charge in both the
cases. Petitioner is on bail, his bail bonds stand discharged. Resultantly judgments passed by
Judicial Magistrate, Dera Murad Jamali dated 13 -11-2007 and judgments dated 30 -11-2007
passed by Sessions Judge, Nasirabad at Dera Murad Jamali are set aside.
Petitions are disposed of accordingly.
N.H.Q./3/Q Petitions 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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