MUHAMMAD RAASHAD vs THE STATE
This criminal appeal challenges the conviction and sentence of the appellant under section 13 of the Pakistan Arms Ordinance, 1965, rendered by the Additional Sessions Judge, Faisalabad. The core legal question revolves around the legality and sufficiency of a weapon recovery effected from the appellant while he was already under police interrogation, without the association of independent public witnesses as mandated by section 103 of the Code of Criminal Procedure, 1898. The Lahore High Court held that the prosecution failed to establish the recovery beyond a reasonable doubt, noting the absence of independent witnesses, lack of proof that the place of recovery was in the appellant's exclusive possession, failure to prove the weapon was in working order or properly sealed, and the possibility of plantation. The court laid down the principle that when a recovery is made from a suspect already under police interrogation, the prosecution must strictly comply with section 103 of the Code of Criminal Procedure, 1898, or provide a satisfactory explanation for failing to associate independent public witnesses.
- Can the prosecution ignore the requirements of section 103 of the Code of Criminal Procedure, 1898, for a recovery made from an accused person who is already under police interrogation?
- Does the failure to associate independent witnesses from the public during a recovery vitiate the prosecution's case unless a satisfactory explanation is furnished?
- Is a conviction sustainable under section 13 of the Pakistan Arms Ordinance, 1965, when the recovered weapon is not established to be in the exclusive possession of the accused or proved to be in working order?
- Section 13, Pakistan Arms Ordinance 1965
- Section 382-B, Code of Criminal Procedure 1898
- Section 302, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 109, Pakistan Penal Code 1860
- Section 103, Code of Criminal Procedure 1898
' ASIF SAEED KHAN KHOSA, J.-Muhammad Raashad appellant was convicted for an offence under section 13 of the Pakistan Arms Ordinance, 1965 vide judgment dated 30-4-2003 rendered by the learned Additional Sessions Judge, Faisalabad, camp at Central Jail, Faisalabad and was sentenced to rigorous imprisonment for four years and a fine of Rs,5,000 or in default of payment thereof to undergo simple imprisonment for one month. The benefit under section 382-B, Cr.P.0 was extended to the appellant. The appellant has challenged his conviction and sentence before this Court through the present appeal:
2. The prosecution's allegation against the appellant is that on 14-2-2001 he had led a police party to the Dhari of one Muhammad Rafiq Arain and from there he had got a rifle .7MM recovered at a time when the appellant was already under interrogation in connection with case F.I.R. No,739 registered at Police Station Chak Jhumra, District Faisalabad on 5-10-2000 for offences under sections 302/148/149/ 109, P.P.C. As a consequence of the above mentioned recovery of a rifle .7MM at the pointing out of the appellant F.I.R. No,124 was registered against him at Police Station Chak Jhumra, District Faisalabad on 14-2-2001 for an offence under section 13 of Pakistan Arms Ordinance, 1965. After finding the case against the appellant to have been proved beyond reasonable doubt the learned trial Court convicted and sentenced the appellant as mentioned and detailed above. Hence the present appeal before this Court.
3. After hearing the learned counsel for the parties and going through the record of this case with their assistance it has straightaway been observed that the alleged recovery had been effected from the appellant by the local police at a time when the appellant already under interrogation in connection with a murder case. It has already been held by the Hon' ble Supreme Court of Pakistan in the case of Muhammad Azam v. The State PLD 1996 SC 67 that in such a situation the police cannot ordinarily be allowed to ignore the provisions of section 103, Cr.P.C. In the said precedent case the Hon' ble Supreme Court had held that in such a situation the Court is to insist upon association of independent witnesses from the public with any recovery to be B affected from a suspect under interrogation and the requirements of section 103, Cr.P.C. Could only be ignored in such a situation if the prosecution furnishes a satisfactory explanation for non-association of witnesses from the public with the alleged recovery. In the case in hand no such explanation is available on the record as to why witnesses from the public c were not associated with the alleged recovery.
4. The record of this case clearly shows that the alleged recovery had been effected from the Dhari of one Muhammad Rafique Arain which was never established to be in exclusive possession of the present appellant. It had never been established by the prosecution that the weapon allegedly recovered from the appellant's possession was in working order or that it had been sealed after its alleged recovery.
5. The document available on the record as Exh.DA shows that prior to 21-1-2001 a rifle .7MM had already been recovered by the Police from the custody of one Shama accused in connection with the above mentioned murder case and upon refusal of physical remand of the said accused person by the learned Area Magistrate it was quite conceivable that the said weapon had subsequently been planted upon the appellant.
6. For what has been discussed above a conclusion is inescapable that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. This appeal is, therefore, allowed F the conviction and sentenced of the appellant recorded by the learned trial Court are set aside and the appellant is acquitted of the charge. He shall be released from the jail forthwith if not required in any other case.