P L D 2011 Quet ta 18
Before Ghulam Mustafa Mengal, J
MUHAMMAD KHAN ---Appellant
Versus
THE STATE ---Respondent
Criminal Appeal No.135 of 2010, decided on 8th February, 2011.
West Pakistan Arms Ordinance (XX of 1965) ---
---Ss. 8, 9 & 13(e) ---Explosive Substa nces Act (VI of 1908), Ss.3/4 ---Anti -Terrorism
Act (XXVII of 1997), S.7(a) ---Possessing arms and explosive substances and terrorism -
--Appreciation of evidence ---Counsel for accused had mainly contended that neither the
recovered weapon was sealed at the sp ot; nor the same was sent to the Ballistic Expert
for his opinion, as to whether same -was in working condition or not---Validity ---Recovered
weapon was not required in any other case, so that it could have been sealed at the spot -
--No question had been sug gested to the witnesses by the defence Counsel that the
weapon produced in court was not in working condition ---In the present case recovery
of weapon (pistol) having been denied, contention raised by counsel for accused that
pistol was neither sealed at t he spot nor it was in working condition had no force ---
Weapon which required licence could not be kept in possession, even if it was not in
working condition ---Non-sending of pistol to expert for opinion, was an omission on the
part of Investigating Office r; and was not fatal to the prosecution case ---In absence of
any illegality or infirmity in the impugned judgment warranting interference by High
Court, appeal filed by accused was dismissed and impugned judgment was maintained.
Mujeeb Ahmed Hashmi for Appellant.
Sardar Ahmed Halimi and Qazi Abdul Malik for the State.
Date of hearing: 26th January, 2011.
JUDGMENT
GHULAM MUSTAFA MENGAL, J .---This Criminal appeal under section 410,
Cr.P.C. has been directed against the judgment dated 26 -5-2010 passed by Special
Judge, Anti Terrorism Court -II, Quetta, whereby appellant has been found guilty under
section 9 and section 13 -E of Pakistan Arms Ordinance and sentenced to three years
R.I. with fine of Rs.10,000 and in default to further suffer 20 day's S.I. with benefit of
section 382 -B, Cr.P.C.
Briefly stated, the facts of the prosecution case are that on 1842 -2009 at about 6 -30 p.m.
in between Kamal -II and Salahuddin pickets accused was apprehended by F.C.
personals and from possession of accused/ap pellant one T.T. Pistol of .30 bore, 3 Hand -
grenades with one device, one detonator along with remote wire, two packet explosive
material (8/1/2 k.g.) a Nokia Mobile along with Afghani Sim No.1100, one purse
containing Rs.518 Pakistani Currency and 80 Afgh ani Currency were recovered. Upon
registration of ease under sections 3 -4, Explosive Substances Act read with section 'i3 -
E, Arms Ordinance, and 7 -A.T.A. 1997; investigation was conducted by P.W.4.
Muhammad Yaqoob, I.P. and challaned the appellant to face his trial.
At the trial charge was framed under sections 3 -4 of Explosive Substances Act and
section 13 -E, Arms Ordinance on 13 -2-2010, to which appellant did not plead guilty
and claimed for trial.
At the trial prosecution examined P.W.1., Anar Badsha , Naib Subedar, who was co -
mashir of the recovery memo; Exh.P/1 -A, and seizer of Pistol Article, P/1 -A and 5
rounds article, Article P/1 -B, Rs.518 Pakistani Currency Article P/1 -C, 80 Afghani
Currency, Article F/1 -D and a Purse containing Pakistani and Afg hani Currency Article
P/1 respectively. P.W.2. Hawaldar Mureed Abbas, witness to the recovery memo; Exh.
P/1-A. P.W.3., Major Farrukh Mirza, was the complainant, who produced Murasla, Exh.
P/3-A. P.W.4., Muhammad Yaqoob, I.P, who conducted formal Investiga tion. He
produced F.I.R as ExIi.P14 -A, sketch of the place of arrest of accused, Exh.P/4 -B and
Challan, Exh.P/4 -C, Exh.P/4 -D and delivery certificate, Exh.P/4 -E. After close of
prosecution side, statement of the appellant was recorded under section 342, Cr .P.C.
wherein he denied the allegation levelled against him. He produced D.W -1, Abdul Wali
and D.W.2. Muhammad Gul in his defence. The learned trial Court concluded the
proceedings by means of judgment dated 26 -5-2010, whereby the appellant has been
convic ted and sentenced in the aforementioned terms. The appellant being aggrieved by
the impugned judgment preferred this appeal.
Mr. Mujeed Ahmad Hashmi, learned counsel for the appellant has mainly contended
that neither recovered weapon was sealed at the s pot nor the same was sent to the
Ballistic Expert for his opinion as to whether it was in working condition or not.
On the other hand Mr. Sardar Ahmad Haleemi, learned Special Prosecutor, A.T.A.
supported the impugned judgment and argued that the charge framed against the
appellant contains the allegation about recovery of unlicensed T.T. Pistol from the
possession of appellant, as defined under section 13 -E of Arms Ordinance, therefore,
mere non -sealing and non -sending of Pistol to Expert is an irregula rity and omission on
the part of Investigating Officer, is not fatal to the prosecution case.
I have heard the learned counsel for the parties and have gone the record.
As regards the contention of the learned counsel for the appellant, it is pointed o ut that
the recovered Pistol was not required in any other case so that it could have been sealed
at the spot. No question has been suggested to the witnesses by the defence counsel that
the pistol produced in Court was not in working condition. In the ins tant case the
recovery of Pistol has been denied, therefore, the contention so raised by the learned
counsel that the Pistol was neither sealed at the spot nor it was in working condition has
no force. Sections 8 and 9 of the West Pakistan Arms Ordinance, 1965 reads as under: --
(8) Prohibition Of Going Armed Without Licence .---(1) No person shall go
armed with any arms except under a licence and to the extent and in the manner
permitted thereby.
(2) Any person so going armed without a licence or in cont ravention of its
provisions may be disarmed by any Magistrate, Police Officer or other person
empowered by Government in this behalf by name or by virtue of his office.
(3) Nothing in subsections (1) and (2) shall apply to a person carrying arms
under a written authority issued in accordance with the rules.
(9) Unlicensed possession of arms, etc .---No person shall have in his possession
or under his control any arms, or any ammunition or military stores, except under
a licence and in the manner and to the extent permitted thereby.
Section 3 (1) (a) defines the definition of word ammunition; as under: --
(a) "ammunition: includes
(i) ammunition of all types for light and heavy automatic weapons, revolvers,
pistols, rifles, carbines, muskets and shot -guns;
(ii) ammunition constructed and modified for firing projectiles or gas or smoke
containers;
(iii) gun wads, gun fints, percussion caps, fuses, friction tubes and detonators;
(iv) all types of grenades, bombs, rockets, mines and fuels for flame throwers;
(v) all types of explosives, fulminating material and propellants, including all
articles specially designed for torpedo operation and depth charges;
(vi) all parts of ammunition, but does not including lead, sulphur or saltpeter;
The plai n reading of definition of above sections, show that weapon which requires
licence can not be kept in possession, even if it is not in working condition, as such, non -
sending of Pistol to Expert for opinion is an omission on the part of Investigating
Offic er and is not fatal to the prosecution case.
For what has been discussed above, I found no illegality or infirmity in the impugned
judgment, warranting interference by this Court. The appeal filed by appellant is dismissed
and impugned judgment is mainta ined.
H.B.T./8/Q Appeal dismissed.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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