2010 Y L R 2529
[Quetta]
Before Mrs. Syeda Tahira Safdar, J
FAIZ MUHAMMAD ---Appellant
Versus
THE STATE ---Respondent
Criminal Jail Appeal No. 23 of 2009, decided on 10th March, 2010.
West Pakistan Arms Ordinance (XX of 1965) ---
----S. 13(e) --- Recovery of arms --Appreciation of evidence ---Trial Court had completely
relied on evidence produced by prosecution ---Contents of F.I.R. did not corroborate the view
and fact s taken and described by the Trial Court while disposing of the matter ---Nothing was
available in F.I.R. about effecting recovery of arms from possession of accused when his
house was allegedly raided by the Police ---No explanation was found on record from
prosecution side about reason of presence of accused in front of some specific house at such
odd hours of the night and no explanation was given as to where were the klashnikov and two
magazines at the time of recovery ---Alleged magazines and cartridges s o recovered, were not
produced before the court ---Recovery of alleged articles from possession of accused, was not
established free from all doubts, the benefit of the same would go to accused, which had not
been given by the Trial Court ---Trial Court had also failed to observe the contradictions and
flaws present in the statements of the witnesses ---Prosecution had failed to establish the
charge against accused ---Trial Court having not come to the right conclusion, same could not
remain in field ---Impugned judgment of the Trial Court was set aside and accused was
acquitted of the charge under S.13(e) of West Pakistan Arms Ordinance, 1965 and was
ordered to be released.
Miss Shahida Parveen for Appellant.
Qazi Abdul Malik for the State.
Date of hearing: 2nd November, 2009.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. ---This is a jail appeal filed by convict Faiz
Muhammad, wherein it is his contention that he has been falsely involved in present case, no
independent witnesses were made during the proceedings by the police. The trial court has
conducted the proceedings contrary to law and facts. The recovered arm was not sent to
Laboratory for analysis. False evidence has been given against him. He has prayed for setting
aside of conviction, whi le he be acquitted of the charge.
As per record an F.I.R. No.54 of 2008 Police Station Saddar Mastung was lodged on 2 -9-
2008 with averments that on spy information when the police officials reached at Killi Durra
Khan at 1 -30 a.m. they saw a person sta nding in open plot in front of house of one Juma
Khan in armed position, who was apprehended and on inquiry he told his name as Faiz
Muhammad son of Muhammad Rahim, while one Kalashnikov along with two magazines
and 39 live cartridges were recovered from h is custody, for which he failed to produce any
license or permit. After completion of investigation case was challaned. Charge was framed
for the offence punishable under section 13 -E of Arms Ordinance, 1965, which was denied
by the accused. Four witnesses were produced by the prosecution, while in defence no
evidence was produced, nor the accused opted to record his statement on oath. On completion
of trial the appellant/ accused was convicted of the charge and sentenced to undergo
imprisonment for a perio d of three years with fine of Rs.2000, while in default he has to
undergo further imprisonment for a period of six months. Being aggrieved of the order he
preferred present appeal praying thereby for his acquittal.
The main contention of the appellant is that he has been involved in present case falsely,
there is mala fide on the part of police officials, while no independent witness was made at
the spot, further recovered arm and ammunition were not sent for chemical analysis.
Counsel for the parti es were heard, while record was perused. It is apparent from perusal of
impugned judgment that the trial Court completely relied on evidence produced from side of
the prosecution and come to the conclusion that as per statements of the witnesses the
Kalash nikov was recovered from accused/appellant when the police raided the house of the
accused at Killi Durra Khan, while on 2 -9-2008 when the police got information about
commission of a murder at Killi Durra Khan, when they reached there they saw
accused/pre sent appellant standing there holding Kalashnikov in his hands, whereby he was
arrested and same was snatched from his hands, which was unlicensed. The presence of
independent witnesses not necessary, it is held by the learned trial Judge, he gave reasonin g
to the same effect. It may be so, but from perusal of record it is apparent that the contents of
F.I.R. are not corroborating the view and facts taken and described by the learned trial Judge
while disposing of the matter. There is nothing in the F.I.R. about getting information about
murder of some person, and about effecting recovery of arms from possession of
appellant/accused when his house was raided by the police. Rather as per F.I.R. there is
recovery of alleged Kalashnikov along with magazines and live cartridges from possession of
the appellant/ accused, while he was standing in open plot situated in front of house of one
Juma Khan. Though the fact of involvement of appellant/accused in a murder case is not
specifically alleged by the prosecution witnesses, but as per P.W.1 S.H.O. told him about a
person wanted in a murder case, whereupon he along with him reached at Killi Durra Khan
and arrested the appellant/accused. P.W -H stated that spy information was given to them that
an armed person was sta nding in front of house of one Juma Khan at Killi Durra Khan, where
accused was arrested, having in possession Kalashnikov. PM -III only stated that they reached
Killi Dura Khan along with S.H.O. where a person was standing, who had a Kalashnikov.
P.W-IV is investigating officer, while recovery was not effected in his presence. He admitted
during cross -examination that a murder case was against the accused/ appellant. As per cross -
examination made to P.W -II, he was investigating officer in murder case agains t the
appellant/accused; he further admitted that said case was registered against unknown person.
From this whole set of evidence it is apparent that some murder case was also registered
against the accused person i.e. present appellant. As per accuse d also, during examination
made under section 342, Cr.P.C, he was called in respect of murder of his brother at Thana,
while his own brothers and relatives in collaboration with the police planted Kalashnikov
against him. He asserted his innocence. From t hese facts it seems to be that the recovered
Kalashnikov may be alleged crime weapon of murder case. But this fact is not incorporated in
the F.I.R. of instant case; rather it is only shown as an unlicensed arm and ammunition. Apart
from the same it is the prosecution which is required to prove the fact of recovery of alleged
articles/arms from possession of the accused person. Though the witnesses have deposed that
the accused person/appellant was arrested from the open plot situated in front of house of o ne
Juma Khan, having in possession a Kalashnikov along with two magazines and 39 live
cartridges at 1 -30 A.M. at night. There is no explanation on the record from prosecution side,
about reason of presence of the accused/appellant in front of some specific house at such odd
hours of the night. There is no explanation that where were the Kalashnikov and two
magazines at time of recovery. P.W.III though produced the recovered Kalashnikov as Art. I,
but the alleged magazines and cartridges are not produced bef ore the court. The perusal of
relevant statement of P.W.III reveals that though the witness asserted that the recovered
articles were made as article -I, while as per recovery memo Exh. P/3 -A, the recovered
articles were placed in parcel and seal was affixe d on it. But these articles, asserted to be
sealed in parcel, were not produced during course of the trial. No sealed parcel was produced
nor opened before the court. Though the trial Court has recorded that Kalashnikov is the same
which is present in the court. The observation required to be made by the court while
exhibiting the articles are not made by the trial Court, which is an error on its part. An
adverse inference can be drawn from the same.
Keeping in view the above mentioned facts, the recove ry of alleged articles from possession
of the appellant/ accused, is not established free from all doubts, the benefits of the same
surely goes in favour of the accused person/appellant, which has not been exercised by the
trial Court. Furthermore, the tri al Court also failed to observe the contradictions and flaws
present in the statements of the witnesses, rather without discussing the evidence came to the
conclusion that the evidence was corroborating, and having no defect at all. In view of above
discus sion it is held that the prosecution has failed to establish the charge against the accused
person/appellant while the trial Court has not come to the right conclusion, which cannot
remain in field.
Thus in the circumstances the appeal is liable to be accepted, while the impugned order is
liable to be set aside. Therefore, the appeal is hereby accepted, impugned judgment made on
28-2-2009 by the trial Court is set aside. The appellant/accused namely Faiz Muhammad son
of Haji Muhammad Rahim is acquitted of the charge under section 13 -E of Arms Ordinance,
1965. He be released at once in case F.I.R. No: 54 of 2008, Police Station Saddar Mastung, if
not required in, any other case.
H.B.T./51/Q Appeal accepted.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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