2014 Y L R 2270
[Balochistan]
Before Muhammad Hashim Khan Kakar, J
PAYO KHAN alias KAKAY ---Appellant
Versus
The STATE---Respondent
Criminal Appeal No.40 of 2014, decided on 16th June, 2014.
Explosive Substances Act (VI of 1908) ---
----Ss. 3 & 4 ---Pakistan Arms Ordinance (XX of 1965), S.13 (e) ---Criminal Procedure Code (V
of 1898), S.103---Possessing handgrenade and unlicensed firearms ---Appreciation of evidence ---
Recovery proceedings ---Statements of recovery witnesses ---Procedure--- Accused was convicted
and sentenced for imprisonment for keeping in his possession one unlicensed rifle .303 bore, one
TT pistol .22 bore, a bandoleer containing 15 live cartridges and one handgrenade ---Validity ---
Serious doubts existed regarding preparation of re covery itself ---In case of on -spot recovery,
statements of recovery witnesses had to be recorded soon thereafter at the spot but witness of
recovery admitted that his statement was recorded in police station and he was not present at the
time of recovery ---Entire proceedings were doubtful as raid was conducted on the basis of secret
information and no independent respectable person of that locality was joined in recovery
proceedings ---Prosecution not only failed to prove alleged recovery of explosive materi al and
arms and ammunitions from the possession of accused but also failed to prove the case without
any shadow of doubt ---High Court set aside conviction and sentence passed by Trial Court and
acquitted accused of the charge ---Appeal was allowed in circum stances.
Shabir Ahmed Rajput for Appellant.
Abdul Sattar Durrani, Additional Prosecutor General and Malik Sultan Mehmood,
Special Prosecutor ATA for the State.
Date of hearing: 23rd May, 2014.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. ---Payo Khan alias Kakay,
accused/appellant, was tried by the learned Additional Sessions Judge -I, Quetta (the "trial
Court") for keeping in his possession one unlicenced rifle .303 bore, one TT pistol .22 bore, a
bandoleer, containing 15 live cartridges, and one handgrenade with a detonator and, after having
been found guilty of the offence, he was convicted and sentenced under sections 4 and 5 of the
Explosive Substances Act, 1908 vide judgment dated 28 April, 2014 (the "impugned judgment")
to suffer seven (07) y ears' rigorous imprisonment (R.I.) and under section 13(e) of the Pakistan
Arms Ordinance, 1965 to suffer three (03) years' R.I. and to pay fine of Rs.2000 (Rupees two
thousand only), or in default whereof, to further undergo one (01) month's simple impris onment
(S.I.). Both the sentences were ordered to run con- currently with the benefit of section 382- B of
the Code of Criminal Procedure, 1898, (Cr.P.C).
2. The convict/appellant has approached this Court by filing the instant appeal to call in
question t he convictions and sentences awarded to him by the learned trial Court.
3. It is the case of the prosecution that complainant Sobedar Muhammad Hayat of
Ghazaband Scouts received secret information to the effect that the accused/ appellant had kept a
huge quantity of arms and ammunitions in his house. The said information was shared with the
senior officers and, thus, a raiding -team was constituted, who on 14th February, 2013 at about
3:50 a.m. conducted a raid at the house of the appellant, situated at Ki lli Nakhailabad, Kuchlak.
The appellant was arrested and the aforementioned arms and ammunitions were recovered from
the house, for which he could not produce its licence or permit.
4. The investigation was conducted by Mansoor Ahmed, A.S.- I., of Kuchlak Police Station.
He recorded the statements of all relevant witnesses as provided under section 161 of the Cr.P.C.
and, on completion of the investigation, submitted challan against the convict/ appellant.
5. The learned trial Court, after observing all the legal formalities, framed charge against the
appellant. The charge was put to him to enable him to explain his position. He refuted the charge
and claimed to be tried.
6. The prosecution, in order to substantiate charge, produced and examined as many as four
witnesses in support of its case. Naseebullah Constable (P.W.1) was alleged to be the member of
raiding- party, however, he resiled from his statement and was declared hostile. Muhammad
Hayat (P.W.2) is complainant of the case, who has lodged forma l F.I.R. (Exh.P/2- A). Aminullah,
A.S.-I., is witness of the alleged recovery of arms and ammunitions from the house of the
accused/appellant and produced the recovery memo as Exh.P/3- A, whereas Mansoor Ahmed,
ASI, is Investigating Officer of the case.
7. The accused/appellant was examined under section 342 of the Cr.P.C. All the
incriminating material was brought to the notice of the accused to enable him to explain all
circumstances appearing against him and to furnish his standpoint, if any. He denied c orrectness
of the allegations and claimed his innocence. Neither he opted to be examined on oath, nor was
any witness produced by him in his defence.
8. I have heard the learned counsel for the parties and have also gone through the record
with their valuable assistance.
9. Mr. Shabir Ahmed Rajput, learned counsel for the appellant, contended that the
prosecution had failed to prove its case against the appellant beyond reasonable doubt and, thus,
this appeal warrants acceptance with a resultant acquitt al of the appellant.
10. On the contrary, Mr. Abdul Sattar Durrani, learned Additional Prosecutor General, duly
assisted by Malik Sultan Mehmood, learned Special Prosecutor ATA, appearing on behalf of the
State, have maintained that prosecution had succe eded in proving the guilt of the appellant to the
hilt and, therefore, the present appeal is liable to be dismissed.11. At the very outset, it is to be
noted that that neither the complainant Muhammad Hayat (P.W.- 2), nor Naseebullah (P.W.1)
have stated a s ingle word regarding the demand for production of the licence at the time of
alleged recovery from possession of the appellant. It is true, as pointed out by the learned State
counsel, that both the witnesses have deposed that the appellant never produced any license or
permit, but he need not have done it without any demand for the same. It is by now settled that
keeping of any arm by itself is not an offence. It becomes an offence only when somebody in
possession of the same does not have and cannot produce a licence therefor. As the appellant was
not asked to produce the licence, as such, the conviction would not be sustainable.
12. It is also an admitted feature of the case that the recovery has been effected from a joint
house, that too, in violation of the mandatory provision of section 103 of the Cr.P.C. Neither the
recovered arms and ammunitions were sealed at the spot, nor was the recovery memo (Exh.P/3-
A) prepared immediately after the alleged recovery at the spot. The record depicts that the
alleged recovery was made on 14th February, 2013 at about 3:50 a.m., whereas the recovery
memo thereof was prepared at about 7:10 p.m. at Kuchlak Police Station. The recovery memo
Exh.P/3 purports number, date and offences, which shows that the same was prepar ed at police
station after registration of the case and not at the spot. The record also reveals that the same was
attested by P.W.3 at police station, who was not associating the raiding -party at the time of raid.
There are serious doubts regarding prepar ation of recovery memo at the spot, then no value has
to be attached to the recovery itself. Needless to observe that in case of on spot recovery,
statements of the recovery witnesses have to be recorded soon thereafter at the spot. Aminullah
(P.W.3) has a dmitted that his statement was recorded at police station and he was not present at
the time of recovery. This also makes the entire proceedings highly doubtful. Complainant
Muhammad Hayat had admitted during course of cross -examination that raid was condu cted on
the basis of secret information. He did not bother to join any independent respectable person of
that locality in the recovery proceedings.
13. I have also painfully observed that P.W.4 Mansoor Ahmed, A.S.- I., has conducted the
investigation in a cursory and slipshod manner in violation of the provisions of sub- rule (3) of
rule 25 and clause 10 of rule 25 of Chapter XXV of the Police Rules, which read under: --
"25(3). It is duty of an Investigating Officer to find out the truth of the matter under
investigation. His object shall be to discover the actual facts of the case and to arrest the real
offender or offenders. He shall not commit himself prematurely to any view of the facts for or
against any person."
"25-10. Immediate dispatch of an officer to the spot.---When a report of a cognizable
case is recorded and it is decided not to dispense with investigation under section 157(b),
Criminal Procedure Code, a police officer shall proceed to the scene immediately. The officer
who first proceeds to the spot shall, if he be not competent to complete the investigation,
take all possible steps to preserve the scene of the crime from disturbance, to record particulars
of and secure the presence of potential witnesses, obtain information relating to the case and
arrest the culprits."
14. It may be noted that in the Province of Balochsitan, the Frontier Corpse (FC) has been
bestowed powers of police in view of the Notification No.SO(Pol) -16-462(FC)/2012 dated 9th
February, 2013, issued by the Home & Tribal Affairs Department, Government of Balochistan,
however, the complainant had chosen not to lodge F.I.R. immediately after the alleged recovery,
nor the Investigating Officer Mansoor Ahmed, A.S.- I. (P.W.4) and the recovery witness
Aminullah (P.W.3) have ever visited the scene of crime, which makes the recovery highly
doubtful and convictions on the basis of such evidence is not sustainable.
15. Thus, considering the material available on record in the light of evidence and overall
circumstances of t he case, the prosecution has not only failed to prove the alleged recovery of
explosive material and arms and ammunitions from possession of the appellant, but also failed to
prove the case without any shadow of doubt. Resultantly, the impugned judgment pa ssed by the
learned trial Court is set aside and the appellant is acquitted of the charge. He be set at liberty, if
not required in any other case.
There are the reasons of my short order dated 23rd May, 2014, announced in the open
Court.
MH/51/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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