MUHAMMAD AZEEM alias DODO vs THE STATE
The appellant challenged his conviction and sentence under section 13(e) of the Pakistan Arms Ordinance, 1965, passed by the Sessions Judge, Jacobabad, arising from the recovery of an unlicensed Kalashnikov following his arrest. The core legal question was whether the prosecution proved the recovery of the weapon beyond a reasonable doubt. The Sindh High Court held that the prosecution failed to establish its case, noting that the weapon was not sealed at the spot, there was an unexplained delay in sending the weapon to the Ballistic Expert, daily diary entries regarding the recovery expedition were missing, the mashir was related to the complainant, and the appellant had already been acquitted in the main murder case. Consequently, the appeal was allowed, the conviction was set aside, and the appellant was acquitted. The key principle laid down is that failure to seal a recovered weapon at the spot and unexplained delays in forensic transmission, coupled with an acquittal in the primary substantive offense, render the recovery doubtful and warrant the setting aside of a conviction under the arms legislation.
- Does the failure to seal a recovered weapon at the spot make the prosecution case doubtful?
- What is the effect of an unexplained delay in sending a recovered weapon to the Ballistic Expert?
- Can a conviction under the Pakistan Arms Ordinance, 1965 be sustained when the accused has already been acquitted in the main murder case?
- Section 13(e), Pakistan Arms Ordinance 1965
- Section 382-B, Code of Criminal Procedure 1898
' IRFAN SAADAT KHAN, J.----The appellant was tried and convicted vide judgment dated 31-8-2009, passed by the learned Sessions Judge, Jacobabad, in Sessions Case No,838 of 2008, in F.I.R bearing Crime No,77 of 2008 of Police Station Mouladad under section 13(e) of Pakistan Arms Ordinance, 1965 and sentenced to suffer rigorous imprisonment of three yeaRs, Benefit of section 382-B, Cr.P.C.
Was extended in his favour.
2. In the nutshell, it is the case of the prosecution that the appellant/accused while in custody of Mouladad Police led SIP Aijaz Ali Farooqui to the recovery of an unlicensed Kalashnikov allegedly used by him in the commission of crime viz., murder from dense bushes at the path of Jattak Wah (minor canal), situated at Naudhan diversion, with magazine in presence of private mashirs, namely, Khadim Hussain and Hamza Ali, both by caste Katohar.
3. From the perusal of the record it appears that the Kalashnikov allegedly recovered on the pointation of the appellant/accused was not sealed on the spot. The appellant was arrested on 7- 10-2008 and he led to the recovery of the said Kalashnikov after seven days of his arrest i,e,, on 14- 10-2008. The Kalashnikov allegedly recovered on the pointation of the appellant was dispatched for the Ballistic Expert opinion on 22-10-2008, but was received in the said Division on 16-3-2009 i,e,, after about five months of the said dispatch, for which there is no explanation on the record. Copy of daily diary, under which the police along with the appellant allegedly went to the place of recovery has also not been produced. Mashir Hamz Ali is related to the complainant of main murder case. In the case of Arif Khan v. The State 1998 PCr.LJ 1287, it was observed by a Division Bench of this Court that if the recovery memo did not show that the weapons were sealed at the spot, the case becomes doubtful. Furthermore, the appellant has been acquitted in the main murder case while extending him benefit of doubt. In such circumstances, I am of the considered view that the prosecution has failed to prove the present charge against the appellant. The appeal is, therefore, allowed, the impugned judgment passed by the learned trial Court is set aside and the appellant is acquitted of the charge. He is directed to be released forthwith if not required in any other case.