Hotak alias Sapak V. The State,

2025 Y L R 805 [Balochistan] Before Muhammad Hashim Khan Kakar,CJ and Shaukat Ali Rakhshani, J HOTAK alias Sapak ---Appellant Versus The STATE ---Respondent Criminal Appeal. No. 329 of 2023, decided on 11th September, 2024. (a) Pakistan Arms Ordinance (XX of 1965) --- ----S. 13(e) ---Possession of illicit weapon--- Appreciation of evidence ---Statement of witnesses ---Consistency---Prosecution case was that during the investigation of the case, on the disclosure of accused, pistol 30- bore was recovered ---Complainant deposed that on 27.07.2022, he along with other levies personnel under the supervision of Investigation Officer at 2:00 pm went to the house of the accused, where on the pointation of accused TT pistol along with magazine was recovered through which the accused had fired at deceased and caused injuries to levies personnel, for which the accused failed to produce any valid license---Levies Constable testified in line with the testimony of complainant and reiterated what complainant had stated---Said witness was recovery witness of the TT pistol along with magazine, which was secured through recovery memo. ---Testimony of both the said witnesses could not be shaken despite lengthy cross -examination ---Both of the witnesses remained firm and consistent to their examination -in-chief ---Investigating Officer testified that on 27.07.2022, during investigation of a murder case, the accused made disclosure and in consequence thereof on 27.07.2022, he led them to the place of recovery, where he got recovered the pistol, which was secured through recovery memo.--- Forensic Science Report regarding the pistol .30 bore, went unshaken--- Circumstances established that the prosecution had successfully proved the recovery of crime weapon from the possession of the accused---Appeal being shorn of merits was dismissed, in circumstances. (b) Pakistan Arms Ordinance (XX of 1965) --- ----S. 13(e) ---Possession of illicit weapon ---Appreciation of evidence ---Delay of twenty days in sending the crime weapon and empties to laboratory ---Inconsequential --- Prosecution case was that during the investigation of the case, on the disclosure of accused, pistol 30- bore was recovered ---In the present case crime weapon along with empties was received in office of Forensic Science Laboratory on 16.08.2022, i.e. twenty (20) days after the recovery---Such recovered articles should have been sent without unnecessary delay after being collected from the spot ---However, mere delay did not render the recovery inconsequential ---Circumstances established that the prosecution had successfully proved the recovery of crime weapon from the possession of the accused ---Appeal being shorn of merits was dismissed, in circumstances. (c) Pakistan Arms Ordinance (XX of 1965) --- ----S. 13(e) ---Criminal Procedure Code (V of 1898), S. 103--- Possession of illicit weapon ---Appreciation of evidence ---Non -association of private witnesses at the time of recovery ---Not consequential ---Prosecution case was that during the investigation of the case, on the disclosure of accused pistol 30- bore was recovered ---Since the recovery had been made on the pointation of accused in consequence of a disclosure, therefore, compliance of Section 103, Cr.P.C, was not mandatory and its violation was not fatal to the case of the prosecution--- Circumstances established that the prosecution had successfully proved the recovery of crime weapon from the possession of the accused---Appeal being shorn of merits was dismissed, in circumstances. Ashraf Dad Kakar for Appellant. Abdul Latif Kakar, APG for the State. Date of hearing: 8th August, 2024. JUDGMENT SHAUKAT ALI RAKHSHANI, J. ---Appellant calls in question the veracity and legality of judgment dated 27.07.2023 ("impugned judgment") rendered by learned Sessions Judge, Killa Saifullah ("Trial Court"), whereby he was convicted and sentenced under section 13 (e) of the Arms Ordinance of 1965 ("Ordinance of 1965") to suffer two (2) years R.I with a fine of Rs.20,000/ - (Twenty thousand) and in default thereof, to further undergo for a period of two (2) months S.I with the premium of section 382- B of Criminal Procedure Code, 1898 ("Cr.P.C.") in a case vide FIR No.24 of 2022 (Ex.P/3 -A) dated 27.7.2022 registered with Levies Station, Killa Saifullah.

2. Unfurled facts of the instant case are that complainant Hayat Ullah, Muhrar Levies (PW -1) got lodged the FIR ibid with the averments that on 27.07.2022, while the appellant was being investigated in a case vide FIR bearing No.20 of 2022, he made disclosure and on his pointation levies personnel got recovered TT pistol .30 bore, having No.MAC -2932 along with magazine from a flood channel located at Batozai, Killa Saifullah, whereof he failed to produce any valid license. After usual investigation, the appellant was put on trial. where on commencement of the trial, the appellant entered the plea of denial, thus, the prosecution in order to bring home the charge, produced three (3) witnesses, and after close of the prosecution side, the appellant was examined under section 342 of Cr.P.C. who denied the allegations and professed innocence, whereafter the appellant neither deposed on oath nor produce any defence, henceforth on conclusion of the trial, the appellant was convicted and sentenced in the terms mentioned in the para supra.

3. Learned counsel for the appellant inter alia contended that the mode and manner in which recovery has been affected is improbable and that no private witness was associated while making recovery of the crime weapon. He maintained further that there are material contradictions in the statements of the prosecution witnesses, which has made the entire case doubtful, but the Trial Court has failed to take into consideration such aspect of the matter and has recorded the conviction for the reasons contrary to the evidence available on record. On the basis of above illegalities, learned counsel for the appellant, prayed for acquittal of the appellant. Conversely, learned APG resisted the appeal and strenuously opposed the contentions so put -forth by learned counsel for the appellant. He urged that the prosecution has proved the case successfully and has also established the recovery of the weapon in question through tangible evidence, more particularly by producing positive FSL report and that the Trial Court has rightly convicted and sentenced the appellant, which does not require to be meddled with, thus requested for dismissal of the appeal.

4. Heard. Record vetted. Complainant Hayat Ullah, Mohrar (PW -1) deposed that on 27.07.2022, he along with other levies personnel under the supervision of Muhammad Zarif, Risaldar Major Investigation Officer ("IO") (PW -3) at 2:00 pm, went to the house of the appellant, situated at Qadeel Batozai near the flood channel, where on the pointation of appellant TT pistol bearing No.MAC -2932 along with magazine was recovered through which the appellant had fired at deceased Habib Ullah, and caused injuries to levies p ersonnel namely Fazal Kareem and Hazar Muhammad, whereof the appellant failed to produced any valid license, thus he sent an application (Ex.P/1- A) for registration of FIR Abdul Qayyum. Levies Constable (PW- 2) testified in line with the testimony of complainant (PW -1) and reiterated what Hayat Ullah, Mohrar (PW- 1) had stated. He is recovery witness of the TT pistol along with magazine, which was secured through recovery memo. (Ex.P/2- A). He (PW -2) produced parcel No.1, sample of seal, and pistol along with magazine as Art.P/2 -1 to Art.P/2- 3. The testimony of the both the aforementioned witnesses could not be shaken despite lengthy cross - examination. Both of them remained firm and consistent to their examination- in-chief. Muhammad Zarif IO (PW- 3) testified that on 27.07.2022, during investigation of the case vide FIR bearing No.20 of 2022 under section 302 of P.P.C., the appellant made disclosure and in consequence thereof on 27.07.2022, he led them to the place of recovery, where he got recovered the pistol, which was secured through recovery memo. (Ex.P/2- A). He also produced FIR (Ex.P/3- A), pointation memo. (Ex.P/3- B), letter for chemical analysis of recovered pistol and empty shells (Ex.P/3- C), incomplete challan (Ex.P/3- D) and FSL report (Ex.P/3- E) regarding the TT pistol .30 bore and empty shells, wherein the fire arms expert has opined that the crime empty shells present in parcel No.3 in which C1 to C15 were fired with .30 bore pistol present in parcel No. 1. Despite exhaustive cross -examination, the defence failed to extract any favorable reply to exonerate the appellant from the indictment. His testimony went unshaken. Although, in the instant case crime weapon along with empties was received in office of Forensic Science Laboratory, Police Crime Branch Balochistan on 16.08.2022, twenty (20) days after the recovery, and the same should have been sent without unnecessary delay after being collected from the spot, but mere delay does not render the recovery inconsequential. As far as non -association of private witness is concerned, since the recovery has been made on the pointation of appellant in consequence of a disclosure, therefore, compliance of section 103 of Cr.P.C. is not mandatory and its violation is not fatal to the case of the prosecution.

5. Epitome of the above discussion is that the prosecution has successfully proved the recovery of crime weapon from the possession of the appellant by means of credible and confidence inspiring depositions of the above witnesses, leaving no room to doubt, thus, we firmly believe that the prosecution has proved the indictment against the appellant. The Trial Court, while rendering the impugned judgment has also rightly appraised the evidence, requiring no interference by this Court.

6. Corollary, the appeal being shorn of merits is dismissed; conviction and sentence awarded to the appellant by the Trial Court vide impugned judgment dated 27.07.2023 is hereby maintained. JK/87/Bal. Appeal dismissed.