NAZIF KHAN vs THE STATE
This criminal appeal challenges the judgment dated 12-9-2003 passed by the Judge, Special Court, Lakki, whereby the appellant Nazif Khan was convicted under Section 13 of the Arms Ordinance and sentenced to four years' rigorous imprisonment for allegedly possessing a Kalashnikov and live rounds without a valid licence. The core legal question concerns the reliability of police-only recovery evidence from a residential house situated within a populated area without associating independent notables, and the application of the benefit of doubt. The Peshawar High Court held that the failure of the investigating officer to associate notables of the area during the recovery process from a shared residential house, coupled with improbable circumstances regarding the retention of the weapon during a police raid, creates serious doubt regarding the prosecution's case. Consequently, the appeal was allowed, the conviction and sentence were set aside, and the appellant was acquitted. The key principle laid down is that recovery from a residential house without independent corroboration by local notables, under suspicious and improbable circumstances, warrants extending the benefit of doubt to the accused.
- Whether the failure to associate independent notables from the area during a recovery from a residential house vitiates the reliability of police testimony?
- Can the benefit of doubt be extended when the circumstances surrounding the alleged possession and recovery of an illicit weapon appear improbable?
- Whether conviction under the Arms Ordinance can be sustained upon shaky and uncorroborated recovery evidence?
- Section 13, Arms Ordinance 1965
' TARIQ PARVEZ, J.--- Appellant Nazif Khan a resident of village Kotka Zarif is accused of possessing a Kalashnikov with 18 live rounds of 7.62 bore for which he could not produce any valid licence or permit, was prosecuted by learned Judge, Special Court, Lakki and vide judgment, dated 12-9-2003 held guilty and has been sentenced to four years' R.I. Under section 13 Arms Ordinance, therefore, this appeal.
2. After hearing the learned counsel for the parties and after we have gone through record of this case it appears that there were information to the police that a P.O. By the name of Naiibullah brother of Nazif has taken shelter in his house. The house was raided, P.O. Could not be arrested but appellant was allegedly found in possession of Kalashnikov and rounds as mentioned above.
3. To prove the charge prosecution has examined three witnesses, all police officials. It is not disputed that the house wherefrom appellant was arrested is within village Abadi but no attempt is made by the Investigating Officer to associate any notable of the area during the recovery process.
' It is not conceivable that if the P.O. Could on getting information of the arrival of the police, the appellant would still keep the Kalashnikov in his personal possession instead of either concealing it somewhere in the house by disarming himself or by also trying to escape.
4. When the recovery even if proved is made from the house of the appellant which is occupied by other inhabitants and where we doubt that in the circumstances appellant would not have disarmed himself we extend the benefit of doubt to the appellant. This appeal is, therefore, allowed.
Conviction and sentence of the appellant are set aside and he is acquitted of the charge. He be released from jail forthwith, if not required in any other case.