2025 P Cr. L J 1178
[Balochistan (Sibi Bench)]
Before Zaheer- ud-Din Kakar and Shaukat Ali Rakhshani, JJ
NAZEER AHMAD--- Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. (s)28 of 2023, decided on 30th October, 2023.
Balochistan Arms Act (XVIII of 2022) ---
----S. 15(e) ---Possession of illicit weapon ---Appreciation of evidence ---Recovery of
weapon disbelieved in the main case from which present case originated ---Prosecution
case was that during the investigation of a case registered under Ss.302, 147, 148 & 149,
P.P.C, a Kalashnikov with a magazine and nine live rounds were recovered on the pointation of accused ---Allegedly, recovery of Kalashnikov along with a magazine and
nine live rounds having been hidden under the ground in the house of accused, wrapped in plastic was recovered on the pointation of the accused after lapse of almost one year ---
However, the address of the accused which had been mentioned was different from the address from where the weapon was recovered ---In such circumstances, it was obligatory
upon the Investigating Officer to have established the connection of the accused with the house wherefrom recovery was effected either as a owner or a tenant, but no documents thereof had been secured ---Investigating Officer had failed to record the statements of the
neighbours of the house wherefrom recovery had been made to establish that the accused was living in the said premises ---Accused had been acquitted in main case of murder in
appeal by disbelieving the recovery--- Circumstances established that the prosecution had
failed to drive home the charge against the accused ---Appeal against conviction was
allowed accordingly.
Hafeezullah and Najamuddin Mengal for Appellant.
Jamil Akhtar Gajani, Additional Prosecutor General (APG) for the State.
Date of hearing: 24th August, 2023.
JUDGMENT
SHAUKAT ALI RAKHSHANI, J .--- Appellant, Nazir Ahmed calls in question the
veracity and legality of the judgment dated 18.02.2023 ("impugned judgment") authored by learned Sessions Judge, Usta Muhammad ("trial court"), whereby he was convicted and sentenced under section 15 (e) of the Balochistan Arms Act, 2021 ("Arms Act of 2021") to suffer five years RI with fine of Rs.10,000/ - (ten thousand) and in default thereof to suffer
further fifteen days SI, inclusive of the premium of section 382- B of the Criminal Procedure
Code, 1898 ("Cr.P.C.") emanating from a case vide FIR No.17/2022 (Ex.P/3- A) dated
31.07.2022 registered with Police Station Saddar District Jaffarabad lodged by complainant Madni Khan (PW -2) against the appellant for possessing an unlicensed kalashnikove along
with nine live rounds.
2. Concisely stated, facts of the case are that crime report ibid was lodged by complainant
SI Madni Khan (PW -2) with the averments that on 31.07.2022 appellant was being
interrogated in a case vide FIR No.12/2021 registered under sections 302, 147, 148, 149 P.P.C., he made disclosure and led the police personnel towards his house near Jaffarabad, where a kalashnikove with a magazine and nine live rounds of a 7.62, having been hid under the ground in his house, wrapped in plastic was got recovered by police contingent on his pointation, whereof he failed to produce its license, henceforth, the recovered kalashnikove and ammunition were taken into possession and parcel No.4 was prepared.
After formal arrest of the appellant in the instant case and usual investigation thereof,
he was sent up before the trial court to face the consequences of his culpable deeds, where
after denial of the indictment, the prosecution in order to bring home the charge produced as many as four witnesses. The appellant was examined under section 342 of Cr.P.C., who denied the allegations and professed innocence. He neither opted to record his statement on
oath nor produced any defence witness, thus the trial culminated into a verdict of guilt;
whereby the appellant was convicted and sentenced vide impugned judgment in the terms
mentioned in para supra.
3. Messrs Najamuddin Mengal and Hafeezullah, 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 kalashnikove. He asserted that the prosecution has failed to procure and produce ballistic report regarding kalashnikove being in working condition, thus the appellant merits to be acquitted of the charge.
On the other hand, Mr. Jamil Akhtar Gajani, learned AAG resisted the appeal and
refuted the contentions advanced by the learned counsel for the appellant. According to him, the prosecution has successfully proved the recovery of the kalashnikove and the trial court has rightly convicted and sentenced the appellant, which needs not to be meddled with and as such requested for dismissal of the appeal.
4. Heard. Record sussed out.
5. Record reflects that on 31.07.2022 the appellant was being interrogated by Madni
Khan SI (PW -2) in a murder case vide FIR bearing No.12 of 2021, who made disclosure in
the presence of witnesses Irfan Ahmed C (PW- 1) and Muhammad Azam that he can get
recover the 222 kalashnikove used in the crime, as such, he led them towards his house near
Jaffarabad, where a kalashnikove along with a magazine and nine 7.62 live rounds, having
been hid under the ground in his house wrapped in plastic was got recovered on his
pointation, whereof recovery memo (Ex.P/1- A) was prepared and FIR (Ex.P/3 -A) on the
basis of murasila (Ex.P/2- A) sent by Madni Khan SI (PW -2) was registered, the copy
whereof was taken in the instant case through recovery memo (Ex.P/4 -B). Allegedly,
recovery of kalashnikove along with a magazine and nine 7.62 live rounds having been hid under the ground in his house, wrapped in plastic was got recovered on the pointation of the appellant on 31.07.2022 after lapse of almost one year. However, the address of the appellant has been mentioned as Anjera Zehri District Khuzdar, whereas recovery has been made from a house situated in District Jaffarabad, thus in such circumstances, it was obligatory upon the IO (PW -2) to have had established the connection of the appellant with the house wherefrom
recovery was effected either as a owner or a tenant, but no documents thereof has been secured. IO Madni Khan (PW -2) has failed to record the statements of the neibourers of the
house wherefrom recovery has been made to establish that the appellant was living in the said premises. So be it, in the connected case of the murder bearing FIR No. 12/2021, the appellant was convicted by the trial court, but his court while allowing the appeal recorded acquittal of the appellant by disbelieving the recovery.
6. For the foregoing reasons, we believe that the prosecution has failed to drive home
the charge against the appellant under section 15 (e) of Arms Act of 2021, but the trial court, while misreading the evidence has erred in law and facts convicted and sentenced the appellant, henceforth, we are not inclined to maintain the conviction and sentence awarded to the appellant for the foregoing reasons.
7. For what has been discussed hereinabove, the instant appeal is allowed and the
conviction and sentence awarded to the appellant by the trial court vide impugned judgment dated 18.02.2023 is set -aside. Corollary, the appellant is acquitted of the charge. The
appellant be released forthwith, if not detained in any other case.
JK/14/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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