NASRULLAH Versus State

ABDUL HAMEED BALOCH, J.- --This judgment disposes of Criminal Appeal No.97/2019 filed by the appellant against the judgment dated 30.03.2019 (impugned judgment) passed by learned Additional Sessions Judge, Loralai (trial court) whereby the appellant was convicted under Section 13-e of the Arms Ordinance, 1965 and sentenced to suffer rigorous imprisonment for two years with fine of Rs.5000/- and in default whereof to further suffer SI for two months, with benefit of Section 382-B, Cr.P.C.

2. Brief facts of the case are that the appellant was arrested in case FIR No.92 of 2016 registered with Police Station Duki, registered under sections 302, 397, 324, 34, P.P.C. whereby during course of Investigation on pointation of the appellant a TT Pistol was recovered, for which the appellant failed to produce any valid license or permit, therefore, the FIR No. 07 of 2017 was registered against the appellant under Section 13-e of the Arms Ordinance, 1965.

3. After completion of investigation the challan was submitted before the trial court, whereby charge was framed and read over to the appellant to which he did not plead guilty and claimed trial. Thereafter the prosecution lead its evidence to substantiate the charge. On completion of prosecution evidence the appellant was examined under Section 342, Cr.P.C. wherein he once again professed his innocence. However, he neither entered on oath as envisaged under Section 340(2), Cr.P.C. nor produced any witness in his defense. On conclusion of the trial the appellant was convicted in the aforesaid terms. Hence this appeal.

4. We have heard the learned counsel for the appellant and learned DPG and have perused the available record with their able assistance. The perusal of record reveals that the recovery of alleged weapon was effected on pointation of appellant from open place which was sent to the FSL without empties. The FSL report reveals that the weapon is in working condition. Such a positive report cannot help the prosecution because the weapon has to send coupled with casing/empties for examination, and it has also to be examined whether the said empties were fired from the said weapon or otherwise. Reliance is placed on the case of Muhammad Arif v. State 2019 SCMR 631, whereby the Hon'ble Supreme Court held as under:

"Recovery of the weapons of offence along with live bullets allegedly effect at the instance of the accused was not of much help to the prosecution because report of the Forensic Science Laboratory was simply to the effect that the rifle was in working order."

5. Even otherwise the arms were sent for analysis to the FSL on 07.07.2017 after lapse of more than two month without any explanation. The prosecution is bound to explain as under whose custody the arms were lying in that period but the prosecution is silent in this regard nor recorded the statement of official about safe custody of the arms, as such the conviction cannot be based on shaky and unreliable evidence. Reliance is placed on the case of Gul Sher Khan v. State 2018 MLD 1354.

6. Without prejudice to above, it is to be noted that the appellant was arrested on 11.01.2017, wherein he made disclosure and on 25.01.2017 on his pointation the prosecution recovered the pistol from the open place. Although under Article 40 of Qanun-e-Shahadat the recovery of pistol on the pointation of an accused is admissible but it put an embargo on prosecution that the recovery should be free from doubt. The record transpired that during course of recovery of alleged pistol no private witness was associated and the place of recovery is not the exclusive possession of the appellant. In this regard the Hon'ble Supreme Court of Pakistan on the case of Sajjan Solangi v. State 2019 SCMR 872 observed as under:

Allegedly petitioner got recovered the said gun from the bushes which place was accessible to everyone. The private persons were also present there as admitted by the witness but only police officials were made witness of the said recovery. In the absence of any positive report of Forensic Science Laboratory, the recovery of the gun is inconsequential.

7. The above discussion suffices to form the opinion that the prosecution had miserably failed to establish the guilt of the appellant and commission of the offence. Therefore, we are of the firm view that the instant case is not worthy of credence, on basis whereof the appellant deserves to be acquitted of the charge.

For the above reasons the impugned judgment dated 30.03.2019 passed by the learned Additional Sessions Judge, Loralai is set aside and while extending benefit of doubt the appellant is acquitted of the charge in Sessions Case No. 01 of 2017 in respect of FIR No. 07 of 2017 Police Station Duki under Section 13-e of the Arms Ordinance, 1965.

The appellant being in custody is ordered to be released forthwith unless required in any other case.

SA/95/Bal. Appeal allowed.