2011 PCr. LJ 298
[Quetta]
Before Mrs. Syeda Tahira Safdar and Ghulam Mustafa Mengal, JJ
MUHAMMAD QASIM ---Appellant
Versus
THE STATE ---Respondent
Criminal Jail Appeal No. 45 of 2008, decided on 19th October, 2010.
Explosive Substances Act (VI of 1908) ---
----Ss. 4 & 5 ---West Pakistan Arms Ordinance (XX of 1965), S.13 -A---Attempt to cause
explosion, or making or keeping explosive with intent to endanger life or property, making or
possessing explosive under suspicious circumstances, unlicensed possession of arms etc. ---
Appreciation of evidence ---Benefit of doubt ---House from which arms and ammunition were
recovered was not in exclusive possession of the accused as other person was also arrested
from the house --Acquittal of said other person raised doubts as to whether the incriminating
material belonged to said other person or the accused ---Klashnikov and detonator were not
sent to the Arntourer for examination ---Search was made by Police in violation of mandatory
provisions of 5.103, Cr. P.C. ---Prosecution failed to prove its case against the accused ---
Appeal was accepted and accus ed was acquitted.
Muhammad Aslam Chishti for Appellant.
Haji Liaquat Ali for the State.
Date of hearing: 27th July, 2010.
JUDGMENT
GHULAM MUSTAFA MENGAL, J. ---This Criminal Jail appeal has been filed by
Muhammad Qasim son of Haji Jeewan from Jail against the judgment dated 23 -9-2008
passed by learned . Additional Session Judge, Lasbella at Hub, whereby he has been
convicted under section 4 of Explosive Substances Act for causing Explosion in public places
and sentenced to life imprisonment. T he appellant was also convicted under section 5 of
Explosive Act for making and possessing Explosive under suspicious circumstances for a
period of 14 years' R.I. He was also convicted under section 13 -A of Arms Ordinance for
keeping an un -licensed Kalashn ikov and sentenced to 7 years' R.I. and to pay fine of Rs.20,
000 or in default to further undergo 6 months' S.I. Alb the sentences were ordered to run
concurrently. The benefit of section 382 -B, Cr.P.C. was given to the appellant.
Briefly stated the fac ts of the case as disclosed in the F.I.R (Exh.P/1 -B) are that on 1 -5-2008,
Muhammad Amin Lassi, IP/SHO, Police Station, Hub sent a Murasila to the incharge of the
Police Station to the effect that he had received a spy information that a person namely
Qurb an Marri along with his companions is involved in Terrorist activities and for this
purpose he kept arms and ammunition in his Dera and at night time he remained present in
his Dera situated in Jam Yousuf Colony. Consequently a raiding party under the supe rvision
of Jamil Ahmad D.S.P. and DSP Investigation Abdullah Jan was arranged and the
complainant along with other Police Officials raided the House of Qurban Marri at 2 -35 a.m.
After scaling the wall raided party entered in to the house a person was appre hended from a
room who disclosed his name as Qasim son of Haji Jeewan, caste Rind residence of Basham
Rind Goth District Nawab Shah Sindh. The accused/appellant was arrested and Kalashnikov
along with a Magazine containing 28 live cartridges was recovered from the beneath of his
bed. On further search of the room 53 rounds of Kalashnikov, a Detonator of Hand Grenade,
bullets of baring weighing 600 grams 1700 grams of different size of Nail were recovered
from a Khaki Coloured bag hanging on the wall of the said room. The accused/appellant was
apprehended and the recovered arms and ammunition were taken into possession vide
recovery memo. Exh.P/3 -A to E. On demand the appellant could not produce the licence of
said arms and ammunitions, thus F.I.R No.82 of 20 08 under section 13 -A of the Arms
Ordinance and 4/5 of the Explosive Substances Act, 1908 was registered against him.
After completion of investigation the appellant was sent to face trial. On 5 -7-2008 charge
under section 13 -A, Arms Ordinance and 4/5 of the Explosive Act was framed to which he
pleaded not guilty and claimed trial.
At the trial the prosecution in order to prove its case examined as many as 5 witnesses
namely P.W.1, Muhammad Amin Lasi, complainant. He produced Murasla as Exh. P/1 -A
and F .I.R as Exh.P/1 -B. Munawar Ali, I.P. was examined as P.W.2, Mazher Iqbal, S.I.
appeared as P.W.3. He produced recovery memo. of Kalashnikov as Exh.P/3 -A and
Kalashnikov as article P/3, Magazine along with 28 cartridges as article P/4, recovery memo.
of 53 live Cartridges as Exh. P/3 -B and 53 live cartridges as article P/8, recovery memo. of
Hand Grenade as Exh. P/3 -C and Detonator article P/11, recovery memo. of Bullets of baring
as Exh. P/3 -D, Bullet Bearings as article P/14, recovery memo. of Nails as Exh . P/3 -E and
different size of Nails as article/15. He also identified the accused present in the Court.
Sikandar, ASI, appeared as P.W.4. He placed on record the disclosure memo; Exh. P/4 -A.
Muhammad Rafique, I.P./Investigating Officer appeared as P.W.5, w ho prepared sketch of
the place of recovery, recovery memo. of articles, recorded the statement of eye -witnesses
under section 161, Cr.P.C, He arrested the accused. He produced Sketch of site as Exh. P/5 -
A, Challan Exh.P/5 -B and Murasala of Home department as Exh. P/5 -C.
The appellant was examined under section 342, Cr.P.C. wherein he denied the allegations
levelled against him and pleaded his innocence and false implication. The appellant did not
appear as witness under section 340(2), Cr.P.C. However, M uhammad Ishaq appeared as
D.W.1. After conclusion of trial, the learned trial Court convicted and sentenced the appellant
as stated above.
We have heard learned counsel for the parties and have perused the record with their
assistance. It has been argued by the learned counsel for the appellant that the appellant has
been falsely implicated in this case as he has no concern with the house and recovered Arms
and ammunitions. He further argued that no person from the public was joined at the time of
raid no r search warrant was obtained from the Area Magistrate as it is mandatory requirement
of section 103, Cr.P.C. He further contended that all the witnesses produced by the
prosecution are police witnesses and subordinate to the complainant. Learned counsel f urther
argued that there is no evidence on record that appellant had attempted to cause explosion,
thus the conviction under section 4 of the Act is in violation of the law.
On the other hand learned State counsel submits that the alleged raid was conduc ted at 2 -35
a.m. and at that time no search warrant could be obtained from Judicial Magistrate nor could
two respectable have been associated to witness the search. The appellant was arrested from
the house from where alleged arms and ammunition were recov ered. He supported the
judgment of the trial Court.
The record of the case reveals that the house wherefrom the arms and ammunition were
recovered was in possession of more than one person as at the time of search and alleged
recovery another person name ly Khudai Rahim was arrested from the said house. The
Investigating Officer namely I.P. Muhammad Rahim, appeared as, P.W.5 and admitted in his
cross -examination that accused Khudai Rahim was also arrested from the said house. It is
also apparent from the r ecord that at the relevant time the Police party also raided another
place and two muraslas were sent to the Police Station. It is also evident from the record that
the Police party raided the house of Qurban Marri and the incriminating materials were
recovered from the house of Qurban Ali who was neither arrested nor shown in the Challan
as co -accused. Herein question arises whether the alleged incriminating material belonged to
the appellant or to Qurban Ali and acquitted accused Khudai Rahim, which canno t be
answered with certainty. This fact alone has made the recovery of the alleged incriminating
material from the possession of appellant highly doubtful. Moreover the alleged recovered
Kalashnikov and Detonator were not examined by the Armourer. The sear ch of the house and
the alleged recoveries therefrom were also made by the Police in violation of mandatory
provision of section 103 of Cr.P.C. The Hand Grenade was also not produced in the trial
Court.
In the above mentioned circumstances, we are of the considered view that the prosecution has
miserably failed to prove its case, beyond reasonable doubt against the appellant, therefore
we accept this appeal, set aside the impugned judgment dated 23 -9-2008 passed by learned
Additional Session Judge, Lasbel la at Hub and acquit the appellant. He shall be set at
liberty forthwith if not required in any other case.
A.R.K./110/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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