2011 Y L R 6 2
[Quetta]
Before Mrs. Syeda Tahira Safdar and Ghulam Mustafa Mengal, JJ
AURANGZEB ---Appellant
Versus
THE STATE ---Respondent
Criminal Appeal No.28 of 2008, decided on 29th September, 2010.
West Pakistan Arms Ordinance (XX of 1965) ---
----S. 13(e) ---Unlicensed possession of arms etc.---Appreciation of evidence ---Benefit of
doubt ---Contradiction in statement of Police Officials as to alleged occurrence and recover y
remained unexpl ained ---Nothing on record showed recovery of alleged firearm from the
possession of the accuse d---Investigating Officer did not conduct independent investigation
but merely recorded the statements of witnesses of alleged seizure of ammunit ion and took
into custody the carbon copy of recovery memo.---Neither the private witness was produced
before the court nor his presence at place of occurrence was explained ---Contradictions in
prosecution case raised reasonable doubts ---Trial Court failed to assess material and evidence
on record ---Mere custody of recovery memo. and statements of witnesses relating to another
case were not sufficient for convicti on---Prosecution having failed to establish the recovery
of ammunition from possession of the a ccused, no question of production of licence or permit
could arise---Conviction and sentence of the accused was set aside and he was acquitted of
the charge.
Muhammad Aslam Chishti and Muhammad Mohsin Javed for Appellants.
Sardar Ahmed Haleemi Special Prosecutor ATA for Respondent.
Date of hearing: 26th May, 2010.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. ---The appellant has preferred instant appeal
feeling aggrieved of judgment dated 29 -2-2008 of Special Judge, Anti -Terrorism Court -
II, Quetta, wh ereby he has been found guilty for the offence under section 9 of Arms
Ordinance, 1965, while convicted under section 13(e) of Arms Ordinance, 1965 to
suffer rigorous imprisonment for a period of three years with fine of Rs.10,000, in
default thereof furth er suffer imprisonment for six months. It is his contention that in
absence of recovery of fire -arms from his possession the possible inference is that
magazine/cartridges were planted on the appellant. Further, the trial Court made an
error while referrin g to the record of other case, which was separately tried. He prayed
for setting aside of the impugned judgment and his acquittal of the charge.
As per record F.I.R. No.16 of 2007 Police Station Bostan District Pishin was lodged on
report about recovery of one loaded magazine of Kalashnikov having 30 live cartridges
from pocket of Shalwar wearing by the appellant/accused, during investigation of case
pertaining to F.I.R. No.15 of 2007. After Registration of F.I.R. and on completion of
investigation the ca se was challaned, charge was framed on 8 -12-2007, on denial by the
appellant/accused, evidence was called. On completion of trial finding him guilty of the
offence the appellant was sentenced to suffer rigorous imprisonment for three years
with fine of Rs. 10,000. Being aggrieved of the same instant appeal has been filed on
mentioned grounds.
Learned counsel for the parties are heard, while record is perused. As per record F.I.R.
No.16 of 2007 was lodged on report of Abdul Salam IP/S.H.O., who appeared as P. W.1
and got recorded his statement. As per same during course of investigation in case
F.I.R. No.15 of 2007, on conducting body search of the accused/ appellant right side
pocket of Shalwar wearing by him a loaded magazine of Kalashnikov was recovered, on
unloading 30 live cartridges were recovered, the accused failed to produce any license
or permit for, the same, whereupon the recovered articles were taken into custody.
Present case was registered, while Ibrahim S. -I. was appointed as Investigation Off icer.
P.W.2 Muhammad Rafique is though witness of the occasion, but he recorded his
statement as witness of memo. of recovery Exh.P/2 -A prepared in respect of handing
over of copy of memo. of recovery of magazine, live cartridges and statements of
witnesse s of said memo of recovery. P.W.3 Amir Muhammad S. -I. who is also witness
of the occasion deposed that on 6 -11-2007 on receiving information by S.H.O. Abdul
Salam about abduction of two girls by one person Aurangzeb, who are kept in garden,
whereupon they along with police personnel in supervision of D.S.P. Ghulam Nabi
reached at the site. On conducting search from clothes of accused Aurangzeb one
magazine with 30 live 'cartridges of Kalashnikov were recovered, whereupon memo. of
recovery was prepared and h e signed it as witness. P.W.4 Muhammad Ibrahim,
Investigating Officer, deposed that on 6 -11-2007 the written report 0-4/ ) was sent
through Essa Jan driver by S.H.O. Abdul Salam, after registration of F.I.R. and on his
appointment as Investigating Officer he reached at the site, whereupon Abdul Salam
S.H.O. handed over memo. of recovery of recovered ammunition and statements of
witnesses to him, which was taken into custody, the accused was arrested in present
case and recorded statements of witnesses.
From whole set of evidence it is apparent that recovery was made in respect of case
bearing F.I.R. No.15 of 2007, due to non production of license or permit present case
has been filed. Thus at the first instance the prosecution is required to establish the
recovery of loaded magazine of Kalashnikov with 30 live cartridges from possession of
the appellant/accused, whereafter, question of production of legal license or permit for
keeping them in possession arises. The appellant has completely denied the charge .
P.W. Abdul Salam S.H.O. is the person, who effected the alleged recovery from the
appellant. He described time of recovery as 3:45 p.m. whereafter the written report
Exh.P/1 -B was sent through Hussain driver to Thana without any delay. But contrary to
the same as per contents of Exh.P/1 -B the time of incident is mentioned as 5:30 p.m.
and time of report is 5:55 p.m. P.W.3 Amir Muhammad, also witness of occasion,
deposed that they reached at the site nearly four or five O'clock in the evening. While
P.W.3 deposed about holding of proceedings at 6 -20 p.m. P.W.4 Muhammad Ibrahim
S.-I., Investigating Officer deposed that he reached at the site at 6 -10 p.m. The
difference of time is apparent from their statements and Exh.P/1 -B that too without any
explanation. Further, as per P.W. Abdul Salam he sent Exh.P/1 -B through driver namely
Hussain. But in Exh.P/1 -B the name of driver is mentioned as Essa Jan.
Apart from the same it is to be noted that only one magazine loaded with 30 live
cartridges of Kalashnikov wer e alleged to be recovered from possession of the
accused/appellant, but there is nothing on record about recovery of Kalashnikov from
possession of the appellant/accused either at the site or thereafter. It is further to be
noted that as per Investigating Officer P.W.4, no independent investigation was made in
present case by him. He only, recorded statements of two witnesses of seizure memo
Exh.P/2 -A, whereby he had taken into custody the statements of two witnesses and
recovery memo. of magazine Exh.P/1 -A, that too carbon copy of the original memo.
The perusal of Exh.P/1 -A reveals that the witness No.2 namely Faisal Ahmed son of
Maqbool Ahmed, his residence is shown as Kasi Killa, Quetta. The witnesses of the
occasion i.e. P.W. to P.W.3 did not disclose pr esence of any private person at the
occasion, rather as per P.W.3 the S.H.O. did not call any private witness from the
nearby area. This witness namely Faisal Ahmed has not been produced before the court.
Furthermore, the prosecution has failed to assign a ny reason about presence of said
witness at site at time of incident, as he was not resident of the area.
The contradiction as pointed out and the other facts as mentioned hereinabove create
reasonable doubt in recovery of ammunition from possession of t he appellant. The trial
Court has not properly assessed the material and evidence present on record and arrived
to a conclusion which is not in accordance with the facts and circumstances of the case.
The Investigating Officer of instant case failed to mak e independent investigation,
which he was required to do. Only taking into custody of seizure memo. and statements
of witnesses made and recorded in other case are not enough. As the prosecution has
failed to establish the recovery of magazine and live car tridges from possession of the
appellant, therefore, the question of production of license and permit does not arise.
Keeping in view the above discussion the appeal is hereby accepted. The impugned
judgment dated 29 -2-2008 of Special Judge, Anti -Terrori sm Court -II, Quetta is hereby
set aside. Appellant Aurangzeb son of Salahuddin is acquitted of the charge, while
conviction awarded under section 13(e) of Pakistan Arms Ordinance, 1965 pertaining to
F.I.R. No.16 of 2007 Police Station Bostan through judgme nt dated 29 -2-2008 by
Special Judge, Anti Terrorism Court -II, Quetta is hereby set aside. He be released at
once, if not required in any other case.
A.R.K./105/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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