2017 Y L R 1166
[Balochistan (Sibi Bench)]
Before Zaheer- ud-Din Kakar, J
LARIK MAL ---Appellant
Versus
The STATE---Respondent
Criminal Appeal No.(s)84 of 2016, decided on 6th February, 2017.
(a) Pakistan Arms Ordinance (XX of 1965) ---
----S. 13- B---Criminal Procedure Code (V of 1898), S.103---Possession of unlicensed arms ---
Appreciation of evidence ---Benefit of doubt ---Accused was arrested in the case registered under
S. 302(c), P.P.C.---Accused during investigation of said case, made d isclosure and in
consequence of said disclosure, on his pointation, unlicensed Kalashnikov along with empty
magazine was recovered from the room of residential house ---Separate FIR for possessing
unlicensed arms was registered against the accused ---Accused objected that place of recovery
was situated in a populated area but no member of public was associated to witness the recovery -
--Validity ---Admittedly, no member of public was associated to join the said recovery in the
present case, which was violation of S. 103, Cr.P.C.---Statement of the Investigating Officer
showed that no efforts were made to join any member of the public to witness the recovery ---
Recovery of Kalashnikov, which was not effected from the actual possession of accused without
joining di sinterested persons in spite of availability, was highly doubtful and no reliance could be
placed thereon ---Circumstances established that prosecution failed to prove the case against
accused beyond any reasonable doubt ---Accused was acquitted by setting aside conviction and
sentence recorded by the Trial Court.
(b) Criminal Procedure Code (V of 1898) ---
----S. 103---Recovery ---Requirement of S. 103, Cr.P.C.---Two members of the public of the
locality should be mashirs to the recovery, as the same was mand atory, unless it was shown by
the prosecution that in the circumstances of a particular case, it was not possible to join two
mashirs from the public ---If the statement of police officer had indicated that no effort was made
by him to secure two mashirs fr om public, the recoveries would be doubtful.
State through Advocate General, Sindh v. Bashir and others PLD 1997 SC 408 rel.
Ahsan Rafiq Rana for Appellant.
Jameel Akhtar, Deputy Prosecutor General for the State.
Date of hearing: 26th December, 2016.
JUDGMENT
ZAHEER -UD-DIN KAKAR, J. ---This criminal appeal is directed against the judgment
dated 24.5.2016 ("the impugned judgment"), passed by the Sessions Judge, Jaffarabad at Dera
Allah Yar ("the trial court"), in Arms Case No.04 of 2016, whereby the appellant Larik Mal son
of Sughno Mal was convicted and sentenced in the following manner:
Under section 13- e of Arms Ordinance, 1965 for R.I. Five years with fine of Rs.20,000/ -
(rupees twenty thousand only), in default whereof to further undergo for three m onths SI.
Benefit of section 382- B, Cr.P.C. was also extended in favour of the appellant.
2. Precisely stated facts of the case are that on 07.01.2016, complainant SIP Abdullah,
lodged FIR No.7 of 2016, under section 13- b of the Arms Ordinance, 1965 agains t the appellant
at Police Station Dera Allah Yar district Jaffarabad, with the allegation that during course of
investigation in connected case bearing Crime No.190 of 2015, registered under section 302- C,
P.P.C., the appellant made disclosure and in conse quence of such disclosure, on his pointation an
unlicensed Kalashnikov along with an empty magazine, was recovered from the residential room
of the house of Ambo Mal and, consequently, the aforesaid separate case was registered against
him.
3. After regist ration of FIR Ex -P/3-A, investigation of the case was entrusted to PW -3
Muhammad Ali ASI, who proceeded to the place of occurrence, prepared recovery memo,
recorded statements of witnesses, arrested the accused, conducted investigation and prepared
challan Ex-P/3-B.
5. On the stated allegation, a formal charge was framed and read over to the appellant on
27.1.2016 to which he did not plead guilty and claimed trial. In order to prove its case, the
prosecution examined following witnesses.
PW-1 Atif Ali Cons table, witness to recovery memo of Kalashnikov Ex -P/ 1-A.
PW-2 Abdullah SI, complainant produced his murasila Ex -P/2-A.
PW-3 Muhammad Ali ASI , investigation officer of the case.
6. The accused was examined under section 342, Cr.P.C., wherein he denied the prosecution
allegation leveled against him and professed innocence. However, he did not opt to record his
statement on oath as envisaged under section 340(2), Cr.P.C., nor led any evidence in defence.
7. On conclusion of the trial, the trial Court found the prosecution's case against the
appellant to have been proved beyond reasonable doubt, thus, he was convicted and sentenced,
as mentioned and detailed above vide judgment dated 24.5.2016.
8. Learned counsel for the appellant contended that the trial C ourt has erred in believing
evidence of only prosecution witnesses, who all belong to the police department and no private
witness was associated at the time of alleged recovery; that the alleged Kalashnikov had not been
recovered from the possession of the appellant, such weapon has falsely been foisted upon the
appellant and there is violation of section 103, Cr.P.C. on the part of prosecution. Lastly, he
prayed for setting aside the impugned judgment and acquittal of the appellant.
9. Conversely, the le arned DPG contended that the prosecution has fully proved the guilt of
the appellant up to the hilt through overwhelming evidence, as such, the trial Court has rightly
held him guilty of the offence, therefore, he sought dismissal of the appeal.
10. I have heard learned counsel for the parties and have gone through the record. The
prosecution case is that on 7.1.2016 during investigation in case FIR No.190/2015, under section
302(c), P.P.C. on disclosure and pointation of the appellant, the police party rec overed
Kalashnikov from a residential room of the house of Ambo Mal, situated at Rojhan Jamali. In
support of the case, the prosecution produced three witnesses. PW -1 Constable Atif Ali is
witness to the recovery memo of Ex -P/I-A and deposed that on the pointation of appellant, the
police party recovered a Kalashnikov from his house situated at Rojhan Jamali. PW -2 Abdullah
SI reiterated the contents of murasila Ex -P/2-A, whereas PW -3 Muhammad Ali ASI/I.O
conducted investigation and prepared challan. In cros s-examination PW -2 and 3 admitted that
the place of recovery is situated in a populated area and they have not associated any private
person to witness the recovery.
11. Admittedly, in the instant case no member of public was associated to join the said
recovery. The plea of the accused/appellant was that the Kalashnikov had been planted on him
and this fake recovery was proved by the police witnesses, namely Constable Atif Ali and
Abdullah SI. The plea is that the said recovery is of no evidentiary value a s the same was made
in violation of requirements of section 103, Cr.P.C. In the case of State through Advocate
General, Sindh v. Bashir and others (PLD 1997 SC 408) the Hon'ble apex Court observed that
requirements of section 103, Cr.P.C., namely, that two members of the public of the locality
should be Mashirs to the recovery, is mandatory unless it is shown by the prosecution that in the
circumstances of a particular case it was not possible to have two Mashirs from the general
public. If, however, the st atement of the police officer indicated that no effort was made by him
to secure two Mashirs from public, the recoveries would be doubtful. In the instant case, from
the statement of the Investigating Officer, it is apparent that no efforts were made to jo in any
member of the public to witness the said recovery. In the overall circumstances of the case, I do
not find it safe to rely on the said recovery and such recovery has no legal value because of
violation of mandatory provision of section 103, Cr.P.C. Provision of said section are, no doubt,
mandatory and it is to guard against possible manipulation. Therefore, it is all the more necessary
that the investigation officer should have tried in this case to secure the attendance of
independent witnesses to attest the recovery of the Kalashnikov at the pointing of the
accused/appellant and failure to do so would cast doubt on the factum of recovery. Section 103
of the Cr.P.C. is not a decoration but designed to provide safeguard against police excesses, as
such, the alleged recovery of Kalashnikov, without joining disinterested persons in spite of
availability, is highly doubtful and no reliance can be placed upon it, especially when ulterior
motives have been alleged by the appellant.
12. Moreover, the alleg ed recovery of Kalashnikov has not been effected from the actual
possession and control of the appellant rather it was, allegedly, effected from a joint house,
where the appellant, along with his brothers was residing. To constitute "possession" within the
meaning of 13- E of the Ordinance it must be interpreted in its broadest sense, and apart from
physical possession, it must also mean the ownership of and control over the alleged recovered
Kalashnikov the word "possession" is a word of wide import and is not free from ambiguity.
This is because the meaning of possession must depend upon the context in which the word is
used. The mental element is an essential element of possession in criminal statutes. Furthermore,
the appellant has also been acquitted by the trial Court vide order dated 5.4.2016 accepting his
application under section 265- K, Cr. P. C. in the main case registered under section 302, P.P.C.
13. In view of what has been stated above, the prosecution has failed to establish its case
against the appellant beyond reasonable doubt, thus, the appeal is allowed, impugned judgment is
set aside and the appellant is acquitted of the charge. He is on bail, his bail bonds stand
discharged.
JK/22/Bal 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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