Hasil Khan and another V. The State and another,

2010 Y L R 1209

[Quetta]

Before Muhammad Noor Meskanzai and Jamal Khan Mandokhail, JJ

HASIL KHAN ---Appellant

Versus

THE STATE ---Respondent

Criminal Appeal No.(S) 7 of 2007, decided on 11th November, 2009.

West Pakistan Arms Ordinance (XX of 1965) ---

----S.13(e) ---Keeping in possession unlicensed pistol ---Appreciation of evidence ---Unlicensed pistol had been recovered from the accused at his disclosure ---Strict compliance of S.103, Cr.P.C. was not required in case of the recovery having b een effected on the disclosure made by accused ---Veracity of prosecution witnesses could not be damaged despite lengthy cross - examination ---Recovery evidence was consistent and inspired confidence ---No grievance or enmity of the witnesses with the accused was agitated ---Prosecution evidence did not suffer from any discrepancy or doubt --Conviction and sentence of accused were upheld in circumstances.

Kamran Murtaza for Appellant.

Miss Noor Jahan Kahoor for the State.

Date of hearing: 8th October, 20 09.

JUDGMENT

MUHAMMAD NOOR MESKANZAI, J. --- This Criminal Appeal is directed against the judgment dated 18th January, 2007 passed by Additional Sessions Judge, Jaffarabad at Dera Allah Yar, whereby; the appellant was convicted under section 13 -E of the Arms Ordinance, 1965 and sentenced to suffer R I for two years with fine of Rs.3000 or in default thereof to further undergo one month S.I. Benefit of section 382 -B, Cr.PC was also extended in favour of appellant.

2. The facts, in brief, are that on 9th June, 2006 at about 10 -15 a.m., appellant durin g the course of investigation in murder case bearing F.I.R. No.21 of 2006 made a disclosure about crime weapon, which culminated in recovery of an unlicensed T.T. pistol made in Pakistan, which was taken into possession through recovery memo and present F. I.R. No.25 of 2006 was registered at Police Station, Cattle Farm against the appellant.

3. After registration of F I R . , investigation was carried out, on completion of investigation, challan was submitted before the learned trial Court i.e. Additional Ses sions Judge, Dera Allah Yar, wherein; charge was read over to the appellant, to which he pleaded not guilty, where after; prosecution in order to substantiate the accusation produced following three P.Ws.: ---

P.W.1 Zafar Abbas, Head Constable

P.W.2 Saf dar Ali

P. W.3 Sadora Khan, S. -I. , Investigating Officer.

At the end of prosecution evidence, appellant was 'examined under section 342 Cr.PC, wherein; he denied all the allegations levelled against him, however; he neither opted to record his stateme nt on oath nor produced any witness in his defence.

4. On conclusion of trial, the learned Additional Sessions Judge, found the appellant guilty of the charge and sentenced him as mentioned hereinabove.

5. Mr. Kamran Murtaza, learned counsel for the ap pellant submitted that in fact no recovery has been effected from appellant, police party has managed this story of recovery. Learned counsel for appellant further submitted that mandatory provisions of section 103 Cr.PC have not been complied with, theref ore, impugned judgment is liable to be set aside.

6. Miss Noor Jahan Kahoor, learned counsel for State opposed the contentions by submitting that appellant has made disclosure and in consequence of such disclosure recovery has been effected. She further submitted that there is no enmity and hostility of police with appellant, hence appeal is liable to be dismissed.

7. We have heard arguments of learned counsel for parties and perused the evidence on record. The appellant during the course of investigati on made a disclosure on 9th June, 2006 and on his disclosure at relevant time and date, a pistol was got recovered.

P.W.1 Zafar Abbas, Head Constable while recording his statement stated that on 9th June, 2006, I and Punhal Khan were present at Police Station, where SI Safdar Ali was carrying out investigation against F.I.R. No.21 of 2006 from accused present in the Court. During the course of investigation appellant disclosed that he can effect recovery of pistol used in the crime, which he has conceal ed in his quilts lying in his residential room. Appellant was handcuffed \ and he was taken to Goth and on reaching at Ghot appellant got stopped the vehicle and disembarked willingly, he led to his residential room, took out a pistol beneath the quilts and handed it over to S. -I. Safar Ali, which was taken into possession. Upon failure to produce licence, a letter was written for lodging of F.I.R. P.W-Fard Exh.P.4 -E, parcel Art:P/4 -7 and recovered pistol as Art:/P4 -8.

P.W.2 Safdar Ali, SI while recording his statement stated that during course of investigation of Crime No.21 of 2006, appellant was being interrogated regarding crime of weapon. Appellant disclosed that he had concealed the crime weapon i.e. T.T. pistol in his house and he can effect recovery whereof on his disclosure, as such; he was taken to his house, where he took out a pistol from beneath of quilts and presented it. He was having no licence regarding pistol, therefore; parcel No.4 was prepared, which was produced as Exh.P/2 -B.

P.W.3 Sad ora Khan, SI in his statement stated that on 9th June, 2006, he was posted in police station, Cattle Farm, on the same day, appellant, in presence of Safdar SI disclosed that he can effect recovery of crime weapon, upon which appellant was taken to Goth Majna, where appellant got stopped the vehicle and from his residential room from beneath of quilts, he took out the T.T. pistol and handed it over to Safdar Ali SI, who took it into possession and prepared parcel No.4. On failure of producing licence, Muras ala was sent to police station for lodging of F.I.R. After lodging of F.I.R., investigation was entrusted to P.W.3 who produced the F.I.R. as Exh.P/3 -C also recorded the statements of witnesses under section 161 Cr.PC. and after completion of investigation , for the purpose of preparation of challan, handed over the documents to SHO and produced the same as Exh.P/3 -D, upon which identified his signatures.

8. Perusal of statements shows that recovery was made at the disclosure of appellant. P.Ws are consist ent and their statements inspire confidence. As far as non -compliance of section 103 Cr.PC is concerned, suffice it to observe that since recovery was made at the disclosure of appellant, therefore; strict compliance was not required, even otherwise appell ant has not shown any grievance against Police Officials nor any enmity has been agitated. Despite lengthy cross - examination, nothing material has come on record, which could affect veracity of prosecution case. Statements of P.Ws. are consistent and there is no discrepancy nor any doubt emerges therefrom, so there is no merit in the arguments made by learned counsel for appellant, hence appeal is dismissed accordingly.

N.H.Q./5/Q Appeal dismissed.