2011 P Cr. L J 261
[Quetta]
Before Syeda Tahira Safdar and Ghulam Mustafa Mengal, JJ
MEHRAN ---Appellant
Versus
THE STATE ---Respondent
Criminal Appeal No. 116 of 2008, decided on 9th September, 2010.
West Pakistan Arms Ordinance (XX of 1965) ---
----S. 13(e) ---Unlicensed possession of arms etc.---Appreciation of evidence ---Benefit of
doubt ---Witnesses contradicted each other qua number of cartridges recovered ---Recovery
memo showed that the Figure was converted into `20' by means of over-writing which was
not endorsed by initials ---Trial Court lost sight of contradictions of the case ---Disclosure of
accused to Police on the last day of his physical re mand raised doubts as to the validity of the
disclosure and recovery ---No one was associated as witness from the house from which
recovery was made ---Said house was not in exclusive possession of the accused ---Case of
prosecution was highly doubtful ---Trial Court failed to extend benefit of doubt to the
accused ---High Court while giving benefit of doubt to the accused, acquitted him of the
charge.
Muhammad Aslam Chishti for Appellant.
Haji Liaquat Ali for the State.
Date of hearing: 20th May, 2010.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J .---Instant appeal has been filed by the appellant
feeling aggrieved of judgment dated 26 -12-2008 of Sessions Judge, Dera Allah Yar, whereby
he has been convicted for the offence under section 13(e) of Arms Ordina nce, 1965, while
sentenced to suffer three years rigorous imprisonment with fine of Rs.10,000, in default
further suffer imprisonment for three months. He prayed for setting aside of the impugned
judgment, thereby his acquittal of the charge on grounds tha t the disclosure attributed to him
was made on 17 -9-2005 almost on last day of permissible limit for police remand, as he was
arrested on 4 -9-2005. No independent witness was associated with factum of disclosure, nor
any witness of locality was made mashir of seizure memo. Further, it is not clear that whether
the recovery was made on pointation of appellant in terms of Article 40 of Qanoon -e-
Shahadat Order or whether he led the police party to the place of recovery and produced the
same to the police. Due to the contradiction in statements of witnesses the recovery is not free
from doubt. Further, in connected Murder Case bearing No.10 of 2005 the Report of FSL is
present on record, which reveals that the whole of the crime empties not wedded to the
recove red katashnikov, which was kept in custody of police for more than four months,
whereafter sent to FSL. The charge has not been proved beyond reasonable doubt.
It is apparent from record that appellant has been arrested being involved in case F.I.R. No.1 4
of 2005 registered in respect of murder of one Abdul Rasheed alleged to be committed by the
appellant by making firing at him with Kalashnikov. It is further apparent from record that
during course of investigation on basis of disclosure allegedly made b y the appellant a
Kalashnikov along with 20 live cartridges were recovered on pointation made by him. As he
failed to produce license or permit for the same instant case was registered against him for the
offence punishable under section 13(e) of Arms Ordi nance, 1965 on 17 -9-2005. On
completion of investigation case was challaned, charged was framed on 11 -11-2005, as there
was denial of the same, whereupon prosecution produced three witnesses to establish its case.
The accused/appellant in defence did not p roduce any evidence nor recorded his statement on
oath. On conclusion the trial court finding him guilty of the charge sentenced him to suffer
rigorous imprisonment for three years with fine of Rs.10,000 in default of payment further
imprisonment for three months through judgment dated 26 -12-2008. Hence present appeal.
The present case is lodged on basis of disclosure made by the appellant during course of
investigation made in respect of investigation made in respect of F.I.R. No.14 of 2005 Police
Statio n Dera Allah Yar, whereupon recovery of Kalashnikov and 20 live cartridges were
allegedly made. The Kalashnikov is alleged to be the crime weapon of mentioned case
allegedly used by the appellant for committing murder of Abdul Rasheed. It is an admitted
position that the appellant was under custody in respect of other case prior to making of
disclosure on 17 -9-2005. P.W.2 Soomar Khan SIP being Investigation Officer of the other
case is the person, who was carrying out interrogation/investigation from the ap pellant during
course of which disclosure was made, he also conducted the proceedings of the recovery,
further he is also complainant of present case. As far as P.W. Ali Gohar is concerned, he is
witness of occasion of making disclosure by the appellant an d also witness of the recovery
effected on pointation of the appellant thereafter. He signed the disclosure memo. and memo.
of recovery as witness. P.W.3 Abdul Hameed is Investigation Officer. Both P.W.1 and P.W.2
deposed that accused/appellant made disclo sure during course of investigation that he can
recover the Kalashnikov through which he committed murder of Abdul Rasheed. On the
same the accused/appellant was taken to his house situated at Goth Noor Pur, where he
(appellant) get down same vehicle and w hile going ahead entered into a residential room and
beneath the beddings lying at north eastern side of room he produced a Kalashnikov with
twenty live cartridges, but failed to produce any license or permit for the same, whereupon
instant case was regist ered. The recovered Kalashnikov along with live cartridges was taken
into custody. Memo of recovery is Exh.P/1 -A. The memo of disclosure is not placed on
record; neither the Investigation Officer took it into custody.
As the memo of disclosure is not on record, therefore, it is difficult to ascertain its
nature.
P.W.1 and P.W.2 both are eye -witnesses of the recovery, in addition to the disclosure.
As per P.W. 1 the disclosure was made at one o'clock or half past one, while they
reached at the place of r ecovery at 2 -30 p.m. While as per P.W.2 they reached at the site
at 2-30 p.m. but during course of cross -examination stated that they proceeded from
Thana at 12 -00 noon. It means that the disclosure was made after departure from Thana.
It is to be noted th at as per contents of F.I.R.; which is present on record as Exh.P/3 -A,
the date and time of incident is mentioned as 17 -9-2005 at 2 -30 p.m. while date and
time of Report is mentioned as 17 -9-2005 at 2 -30 p.m. entering of report at 3 -00 p.m.
Every thing hap pened at 2:30 p.m. Furthermore, as per statement of P.W.2 he prepared
the parcel of recovered Kalashnikov and cartridges whereafter he sent Murasala for
registration of report, on the same Abdul Hameed came at the site, whereby the parcel,
memo. of recover y and accused were handed over to him. To the contrary P.W.1, also an
eye-witness, stated that the Investigation Officer Hameed brought cloth for preparation of
parcel, whereupon parcel was prepared. P.W.3, the Investigation Officer also stated that
sealed parcel was handed over to him. The eye -witnesses differ with each other. It is
seriously noted, while perusing the judgment that the learned Judge while discussing the
material has mentioned that as per deposition of P.W.1 and P.W.2 twenty live cartridges
were recovered, which were taken into possession. The numbers of cartridges are
mentioned as such in recovery memo, Murasala and F.I.R. also. But it is observed that
while recording statement of P.W.2 it is recorded therein that on unloading the
Kalashnik ov three (03) live cartridges were recovered. There is over writing in the
statement, and it is noted that the figure (3) is changed into 20 by pen with blue ink, while
figure (3) is written in writing in which the remaining statement is recorded with blac k
ink. There is no initial on such over writing, nor the trial Court has observed the same,
nor recorded any remarks in same respect while deciding the case, which is highly
objectionable.
The trial Court found the evidence produced by the prosecution as confidence inspiring,
thus relying on the same recorded the conviction to the appellant. The contradictions
mentioned in preceding paras not caught sight of the trial court while deciding the matter.
The fact that the It appellant was in custody of the po lice for quite a time and on last day
of his remand period the disclosure was made and recovery was effected, no explanation
is made nor any reason is given by the prosecution in same respect, which creates a
reasonable doubt in genuineness of the disclosu re and recovery effected thereby. The
disclosure memo. is not made part of the record. It is to be noted that as per P.W.1 and
P.W.2 the recovery was effected from a house, while men, women and children were
residing therein. Despite the same none of them was called, nor associated with them
for recovery of weapon, nor even any interrogation was made from them to sought out
the truth. The house and the alleged room was open, which shows that it was not in.
exclusive possession of the appellant/ accused. All these facts made the case of the
prosecution highly doubtful. The trial Court, has not considered these aspects of the
case.
In view of above discussion the prosecution has failed to make out a case free from
doubt against the appellant. The trial court has failed to appreciate these facts and also
failed to extend the benefit of doubt, accruing thereon in favour of the accused. Thus in
the circumstances the appeal is hereby accepted, the impugned judgment dated 26 -12-
2008 of Sessions Judge, Dera Allah Y ar is hereby set aside. Giving benefit of doubt,
appellant Mehran son of Jaffar is acquitted of the charge under section 13(e) of Arms
Ordinance, 1965, pertaining to F.I.R. No. 205 of 2005 Police Station Dera Allah Yar,
District Jaffar Abad. He be released at once, if not required in any other case.
A.R.K./112/Q Appeal accepted.
A.R.K./114/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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