Khuda Bakhsh alias Baboo vs The State
This criminal appeal challenges the judgment of the Additional Sessions Judge, Mastung, whereby the appellant was convicted under section 13(e) of the Arms Ordinance 1965 and sentenced to three years rigorous imprisonment with a fine. The core legal question was whether the prosecution successfully established the recovery of the unlicensed weapon and proved the charge beyond a reasonable doubt without producing the recovery witnesses or exhibiting the weapon during trial. The Balochistan High Court held that the prosecution failed to prove its case as the recovery witnesses were not produced and the weapon itself was not exhibited, relying merely on a recovery memo from a connected case. The court laid down the principle that mere presentation of a recovery memo without producing the recovery witnesses and exhibiting the weapon in court is insufficient to sustain a conviction for possession of an unlicensed weapon under the Arms Ordinance.
- Whether a conviction under the Arms Ordinance can be sustained when the prosecution fails to exhibit the recovered weapon during the trial?
- Is the presentation of a recovery memo from a connected case sufficient to prove the charge of possessing an unlicensed weapon without examining the recovery witnesses?
- What is the effect of the non-production of marginal or recovery witnesses in an arms recovery case?
- Section 13, Arms Ordinance 1965
- Section 382-B, Code of Criminal Procedure 1898
- Section 342, Code of Criminal Procedure 1898
JUDGM ENT
SHAUKAT ALI RAKHSHANI, J. Appellant Khuda Bakhsh was tried by learned Additional Sessions Judge, Mastung ("Trial Court") pursuant to FIR bearing No.78 of 2021 (Ex.P/3-A) registered with Police Station City, Mastung lodged by complainant Abdul Raheem (PW-1) against the appellant under section 134) of the Arms Ordinance of 1965 ("Ordinance of 1965") to suffer three years (03) R.I with a fine of Rs.10,000/- (Ten thousand) and in default thereof, to suffer further two (2) months S.I, inclusive of the premium of section 382-B of the Criminal Procedure Code, 1898 ("Cr.P.C.") vide judgment dated 23.08.2023 ("impugned judgment").
2. Tersely, facts of the case are that complainant Abdul Raheem IP (PW-1) got lodge the FIR ibid on the basis of murasila (Ex.P/1-A), averring therein that on 17.12.2021, while the appellant was being investigated in a murder case vide FIR bearing No.76 of 2021, he made disclosure and on his pointation police officials got recover 9mm pistol along with an empty magazine from a ravine, near Killi Karhak Mastung, whereof the appellant failed to produced any valid license.
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 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 appellant is innocent, who has falsely been involved in the instant case and that the case of the prosecution is full of lacunas.
Added further that as per law, the prosecution was duty bound to send the recovered crime weapon on the very day of recovery to FSL and that the FIR has been lodged with unnecessary delay, showing colourful exercise of authority by the prosecution, but the Trial Court, while convicting the appellant and rendering the impugned judgment failed to consider such material facts of the case and has recorded the conviction for the reasons contrary to the evidence available on record, henceforth, requested to set at naught the impugned judgment.
Conversely, learned APG and learned counsel for the complainant resisted the appeal and strenuously opposed the contentions so put-forth by learned counsel for the appellant and urged that the prosecution has proved the case without any shadow of doubt by successfully establishing the recovery of the weapon in question through tangible evidence, more particularly, by producing positive FSL report. Maintained further 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 with utmost care.
5. Complainant Abdul Raheem IP (PW-1) testified that on 17.12.2021, the appellant was being interrogated in a murder case bearing FIR No.76 of 2021, who made disclosure that he can get recover the pistol, which he had used in the crime, as such, he led the police officials to Killi Karhak, Mastung, and on his pointation 9mm pistol along with an empty magazine was recovered from a ravine, which was alleged secured in the presence of Nabi Bakhsh and Jahanzaib. However, neither the prosecution produced the said witnesses in the instant case nor has exhibited the recovered pistol during the trial, which the prosecution was under obligation to produce, thus mere presentation of the copy of the recovery memo. prepared in the connected murder case bearing FIR No.76 of 2021 would not be sufficient to hold the appellant, guilty of the indictment for contravention of section 13 (e) of the Ordinance of 1965. The witnesses of the pistol should have also come with the evidence, that on demand of the license, the appellant failed to produce any valid license, thus the indictment fails.
6. In view of the above, we believe that the impugned judgment is unsustainable, which requires to be set at naught.
7. Corollary, the appeal is allowed, and the conviction and sentence awarded to the appellant by the Trial Court vide impugned judgment dated 23.08.2023 is set-aside; consequently the appellant is acquitted of the charge, who be released forthwith, if not incarcerated in any other case.