2020 Y L R 693
[Balochistan]
Before Naeem Akhtar Afghan and Abdul Hameed Baloch, JJ
NASRULLAH ---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. 97 of 2019, decided on 29th August, 2019.
(a) Pakistan Arms Ordinance (XX of 1965) ---
----S. 13--- Recovery of pistol without licence on pointation of accused---Appreciation of
evidence--- Benefit of doubt ---Recovery from open place---Delay in sending recovered
weapon to Forensic Science Laboratory without empties ---Non -association of private
witness --- Effect --- Accused, during investigation of another case, was alleged to have got
recovered a pistol ---Recovery of alleged weapon was effected on the pointation of accused
from open place and the weapon was sent to the Forensic Science Laborator y without
empties ---No private witness was associated and the place of recovery was not in the
exclusive possession of accused ---Weapon was sent for analysis to the Forensic Science
Laboratory after lapse of two months without any explanation---Prosecution was bound to
explain as to under whose custody the weapon was lying during that period but the
prosecution was silent ---Report of Forensic Science Laboratory revealed that the weapon was
in working condition---Such positive report was not helpful to the prosecution because the weapon had to be sent with casing/ empties for examination---Forensic Science Laboratory had to examine whether the recovered empties were fired from the recovered weapon or otherwise ---Prosecution had not recorded the statement of any official about safe custody of
the weapon, as such the conviction could not be based on shaky and unreliable evidence ---
Prosecution had failed to establish the guilt of the accused and the commission of offence ---
Appellant was acquitted of the charge, i n circumstances.
Gul Sher Khan v. State 2018 MLD 1354 ref.
Muhammad Arif v. State 2019 SCMR 631 and Sajjan Solangi v. State 2019 SCMR
872 rel.
(b) Qanun -e-Shahadat (10 of 1984) ---
----Art.40---Proof of information received from accused ---Scope ---Recover y of weapon on
the pointation of accused is admissible in evidence under Art. 40, Qanun- e-Shahadat, 1984
but said Article puts an embargo on the prosecution that recovery should be free from doubt.
Manzoor Ahmed Rehmani for Appellant.
Sudher Baloch, A.P .G. for the State.
Date of hearing: 23rd August, 2019.
JUDGMENT
ABDUL HAMEED BALOCH, J. ---This judgment disposes of Criminal Appeal
No.97/2019 filed by the appellant against the judgment dated 30.03.2019 (impugned
judgment) passed by learned Additional Sessions Judge, Loralai (trial court) whereby the appellant was convicted under Section 13- e of the Arms Ordinance, 1965 and sentenced to
suffer rigorous imprisonment for two years with fine of Rs.5000/ - and in default whereof to
further suffer SI for two months, with benefit of Section 382- B, Cr.P.C.
2. Brief facts of the case are that the appellant was arrested in case FIR No.92 of 2016
registered with Police Station Duki, registered under sections 302, 397, 324, 34, P.P.C. whereby during cours e of Investigation on pointation of the appellant a TT Pistol was
recovered, for which the appellant failed to produce any valid license or permit, therefore, the FIR No. 07 of 2017 was registered against the appellant under Section 13- e of the Arms
Ordina nce, 1965.
3. After completion of investigation the challan was submitted before the trial court,
whereby charge was framed and read over to the appellant to which he did not plead guilty and claimed trial. Thereafter the prosecution lead its evidence to s ubstantiate the charge. On
completion of prosecution evidence the appellant was examined under Section 342, Cr.P.C.
wherein he once again professed his innocence. However, he neither entered on oath as envisaged under Section 340(2), Cr.P.C. nor produced a ny witness in his defense. On
conclusion of the trial the appellant was convicted in the aforesaid terms. Hence this appeal.
4. We have heard the learned counsel for the appellant and learned DPG and have
perused the available record with their able assist ance. The perusal of record reveals that the
recovery of alleged weapon was effected on pointation of appellant from open place which was sent to the FSL without empties. The FSL report reveals that the weapon is in working condition. Such a positive repor t cannot help the prosecution because the weapon has to send
coupled with casing/empties for examination, and it has also to be examined whether the said empties were fired from the said weapon or otherwise. Reliance is placed on the case of Muhammad Arif v. State 2019 SCMR 631, whereby the Hon'ble Supreme Court held as under:
"Recovery of the weapons of offence along with live bullets allegedly effect at the instance of the accused was not of much help to the prosecution because report of the Forensic Sci ence Laboratory was simply to the effect that the rifle was in working
order."
5. Even otherwise the arms were sent for analysis to the FSL on 07.07.2017 after lapse
of more than two month without any explanation. The prosecution is bound to explain as
under whose custody the arms were lying in that period but the prosecution is silent in this
regard nor recorded the statement of official about safe custody of the arms, as such the conviction cannot be based on shaky and unreliable evidence. Reliance is pla ced on the case
of Gul Sher Khan v. State 2018 MLD 1354.
6. Without prejudice to above, it is to be noted that the appellant was arrested on
11.01.2017, wherein he made disclosure and on 25.01.2017 on his pointation the prosecution recovered the pistol fr om the open place. Although under Article 40 of Qanun- e-Shahadat the
recovery of pistol on the pointation of an accused is admissible but it put an embargo on prosecution that the recovery should be free from doubt. The record transpired that during course of recovery of alleged pistol no private witness was associated and the place of
recovery is not the exclusive possession of the appellant. In this regard the Hon'ble Supreme Court of Pakistan on the case of Sajjan Solangi v. State 2019 SCMR 872 observed as under:
Allegedly petitioner got recovered the said gun from the bushes which place was accessible to everyone. The private persons were also present there as admitted by the witness but only police officials were made witness of the said recovery. In t he
absence of any positive report of Forensic Science Laboratory, the recovery of the gun is inconsequential.
7. The above discussion suffices to form the opinion that the prosecution had miserably
failed to establish the guilt of the appellant and commiss ion of the offence. Therefore, we are
of the firm view that the instant case is not worthy of credence, on basis whereof the appellant deserves to be acquitted of the charge.
For the above reasons the impugned judgment dated 30.03.2019 passed by the learned
Additional Sessions Judge, Loralai is set aside and while extending benefit of doubt the appellant is acquitted of the charge in Sessions Case No. 01 of 2017 in respect of FIR No. 07
of 2017 Police Station Duki under Section 13- e of the Arms Ordinance, 1965.
The appellant being in custody is ordered to be released forthwith unless required in
any other case.
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