2010 Y L R 2439
[Quetta]
Before Mrs. Syeda Tahira Safdar, J
LAL MUHAMMAD ---Appellant
Versus
THE STATE ---Respondent
Criminal Appeal No. 97 of 2008, decided on 23rd November, 2009.
West Pakistan Arms Ordinance (XX of 1965) ---
----S. 13(f) ---Probation of Offenders Ordinance (XLV of 1960), Ss. 8 & 13 ---Recovery of
arms ---Appreciation of evidence ---F.I.R. showed that rifle recovered from accused was crime
weapon in respect of offence under S.302/34, P.P.C. ---Rifle in question was ordered to be
confiscated ---Report of S.H.O. attached with the report of Probation Officer had revealed that
accused was convicted for offence under S.302, P.P.C. for life imprisonment ---In view of
facts that accused was involved and convicted for an offence under S.302, P.P.C., while
recovery of crime weapon/rifle was also effected from his possession, for which he had been
punished through impugned order of the Trial Court, his case was not fit to be dealt with
under Probation of Offenders Or dinance, 1960 and he could not take benefit under the same --
-Accused having failed to make out any case in his favour, there were no grounds to interfere
in the findings of the Trial Court ---Accused had maliciously concealed the fact of his
involvement in the murder case and his conviction therein ---Accused had asserted that the
rifle recovered from him was licensed one, but licence thereof was expired in 1999 and since
then he was in possession of the same without any legal title ---Such weapon would be
deemed to be unlicensed ---Weapon being unlicensed, would come within the purview of
S.13(f), West Pakistan Arms Ordinance, 1965 ---Accused having failed to make out any case
on merits, his appeal was dismissed and judgment of the Trial Court was upheld.
Zahoor Ahmed Shahwani, P.G. for Respondent.
ORDER
MRS. SYEDA TAHIRA SAFDAR, J. --The appellant through this appeal challenged order of
the trial Court made on 20 -9-2008, whereby he has been convicted for offence under section
13-F of Arms Ordinanc e 1965. It is his contention that the recovered articles i.e. rifle .303
bore and its license being licensed one, therefore, the court has no jurisdiction to order their
confiscation. Further, the trial court has no jurisdiction to try the case, as it is i n exclusive
jurisdiction of Judicial Magistrate. Moreover, the judgment is not speaking one. He has
prayed for setting aside of impugned judgment and his acquittal from the charge.
As per record F.I.R. No.6 of 2008 Police Station Khatta District Barkha n was registered on
21-7-2008 whereby case was registered against the appellant/accused in respect of recovery
of Rifle .303 bore and License No.11 -2 dated 23 -2-1994. It is apparent from contents of the
F.I.R. that the recovered rifle was crime weapon in r espect of Case No.5 of 2008 offence
under section 302/34 P.P.C. On completion of investigation, case was challaned, while on
completion of trial the accused/appellant was convicted of the offence under section 13 -F
Arms Ordinance, 1965, through judgment ma de on 20 -9-2008, by Sessions Judge, Barkhan at
Rakhni, whereby he was sentenced to suffer rigorous imprisonment for three years and fine
of Rs.5000, in case of default he has to further undergo S.I. for three months. While the case
property was ordered to be confiscated in favour of the State. Feeling aggrieved of the same
the appellant/convict filed present appeal seeking setting aside of the impugned order. As in
contents of memo of appeal this fact is not mentioned that the convict/appellant is also
involved in murder case, therefore, keeping in view the quantum of the sentence which is
only three years, it was deemed fit by this court to dealt it under the Provisions of Probation
of Offenders Ordinance, 1960, therefore, through order made on 24 -8-2009 re port was called
from Probation Officer, who submitted his report on 29 -9-2009.
The perusal of this report reveals that it is mentioned therein that the appellant is convicted
for the offence under section 302, P.P.C. for life imprisonment, further not recommended for
probation. The report of S.H.O. attached with the report of Probation Officer mentioned the
fact that the appellant was convicted for offence under section 302/34, P.P.C. through
judgment made on 22 -11-2008 by the Additional Sessions Judge , Barkhan.
Thus in view of above mentioned facts the appellant being involved rather convicted for an
offence under section 302, P.P.C., while recovery of crime weapon was also effected from his
possession, for which he has been punished through the or der of the trial Court presently
impugned before this Court, thus his case is not fit to be dealt under the provisions of
Ordinance of 1960. He cannot take benefit under the same.
As far as merits of the case are concerned, he has completely failed to make out any case in
his favour; there are no grounds to interfere in the findings of the trial Court. The appellant
maliciously concealed the fact of his involvement in a murder case and his conviction
thereon. As far as order in respect of confiscation o f crime weapon and license is concerned,
though the appellant has asserted it to be licensed one, but admittedly the license was expired
in 1999 and since then the appellant was in possession of the same without any legal title. It
is deemed to be unlicens ed. Thus comes within the purview of the offence/ charge levelled
against him. Furthermore, though as per law the cases registered under provisions of Arms
Ordinance, 1965 are to be tried by the Judicial Magistrate. But in present case as the major
offence was tried by the Court of Additional Sessions Judge, Barkhan, therefore, the case
relating to recovery and possession of crime weapon is also required to be dealt and tried by
the same court, in order to avoid any conflicting order, in respect of both the offences, which
has rightly been done in present case. There is no illegality in the same.
The appellant has completely failed to make out any case on merits too. The appeal filed by
him is hereby dismissed, while judgment of the trial Court is hereby upheld.
H.B.T./54/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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