HOTAK alias Sapak Versus State
This criminal appeal challenges the judgment rendered by the Sessions Judge, Killa Saifullah, whereby the appellant was convicted and sentenced under section 13(e) of the Arms Ordinance 1965 for illegal possession of a weapon. The core legal question revolved around the veracity of the recovery of the crime weapon, the lack of private witnesses during recovery, and the delay in dispatching the weapon to the Forensic Science Laboratory. The Balochistan High Court held that the prosecution successfully proved the recovery through credible and consistent testimonies of official witnesses which remained unshaken during cross-examination. The court ruled that non-association of private witnesses during a recovery made pursuant to an accused's disclosure and pointation under section 27 of the Qanoon-e-Shahadat Order 1984 does not violate section 103 of the Code of Criminal Procedure 1898, and that a mere delay in sending the weapon to the forensic lab does not render the recovery inconsequential. The appeal was consequently dismissed and the conviction maintained.
- Does the non-association of private witnesses vitiate a recovery made pursuant to the disclosure and pointation of an accused?
- Whether a delay in sending a recovered crime weapon to the Forensic Science Laboratory renders the recovery inconsequential?
- Can the unshakeable testimony of official witnesses alone sustain a conviction under the Arms Ordinance 1965?
- Section 13(e), Arms Ordinance 1965
- Section 382-B, Code of Criminal Procedure 1898
- Section 342, Code of Criminal Procedure 1898
- Section 302, Pakistan Penal Code 1860
- Section 103, Code of Criminal Procedure 1898
SHAUKAT ALI RAKHSHANI, J.--- Appellant calls in question the veracity and legality of judgment dated 27.07.2023 ("impugned judgment") rendered by learned Sessions Judge, Killa Saifullah ("Trial Court"), whereby he was convicted and sentenced under section 13 (e) of the Arms Ordinance of 1965 ("Ordinance of 1965") to suffer two (2) years R.I with a fine of Rs.20,000/- (Twenty thousand) and in default thereof, to further undergo for a period of two (2) months S.I with the premium of section 382-B of Criminal Procedure Code, 1898 ("Cr.P.C.") in a case vide FIR No.24 of 2022 (Ex.P/3-A) dated 27.7.2022 registered with Levies Station, Killa Saifullah.
2. Unfurled facts of the instant case are that complainant Hayat Ullah, Muhrar Levies (PW-1) got lodged the FIR ibid with the averments that on 27.07.2022, while the appellant was being investigated in a case vide FIR bearing No.20 of 2022, he made disclosure and on his pointation levies personnel got recovered TT pistol .30 bore, having No.MAC-2932 along with magazine from a flood channel located at Batozai, Killa Saifullah, whereof he failed to produce any valid license.
After usual investigation, 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 any 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 mode and manner in which recovery has been affected is improbable and that no private witness was associated while making recovery of the crime weapon. He maintained further that there are material contradictions in the statements of the prosecution witnesses, which has made the entire case doubtful, but the Trial Court has failed to take into consideration such aspect of the matter and has recorded the conviction for the reasons contrary to the evidence available on record. On the basis of above illegalities, learned counsel for the appellant, prayed for acquittal of the appellant.
Conversely, learned APG resisted the appeal and strenuously opposed the contentions so put-forth by learned counsel for the appellant. He urged that the prosecution has proved the case successfully and has also established the recovery of the weapon in question through tangible evidence, more particularly by producing positive FSL report and 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. Complainant Hayat Ullah, Mohrar (PW-1) deposed that on 27.07.2022, he along with other levies personnel under the supervision of Muhammad Zarif, Risaldar Major Investigation Officer ("IO") (PW-3) at 2:00 pm, went to the house of the appellant, situated at Qadeel Batozai near the flood channel, where on the pointation of appellant TT pistol bearing No.MAC-2932 along with magazine was recovered through which the appellant had fired at deceased Habib Ullah, and caused injuries to levies personnel namely Fazal Kareem and Hazar Muhammad, whereof the appellant failed to produced any valid license, thus he sent an application (Ex.P/1-A) for registration of FIR Abdul Qayyum. Levies Constable (PW-2) testified in line with the testimony of complainant (PW-1) and reiterated what Hayat Ullah, Mohrar (PW-1) had stated. He is recovery witness of the TT pistol along with magazine, which was secured through recovery memo. (Ex.P/2-A). He (PW-2) produced parcel No.1, sample of seal, and pistol along with magazine as Art.P/2-1 to Art.P/2-3. The testimony of the both the aforementioned witnesses could not be shaken despite lengthy cross-examination. Both of them remained firm and consistent to their examination-in-chief. Muhammad Zarif IO (PW-3) testified that on 27.07.2022, during investigation of the case vide FIR bearing No.20 of 2022 under section 302 of P.P.C., the appellant made disclosure and in consequence thereof on 27.07.2022, he led them to the place of recovery, where he got recovered the pistol, which was secured through recovery memo. (Ex.P/2-A). He also produced FIR (Ex.P/3-A), pointation memo. (Ex.P/3-B), letter for chemical analysis of recovered pistol and empty shells (Ex.P/3-C), incomplete challan (Ex.P/3-D) and FSL report (Ex.P/3-E) regarding the TT pistol .30 bore and empty shells, wherein the fire arms expert has opined that the crime empty shells present in parcel No.3 in which C1 to C15 were fired with .30 bore pistol present in parcel No. 1. Despite exhaustive cross-examination, the defence failed to extract any favorable reply to exonerate the appellant from the indictment. His testimony went unshaken. Although, in the instant case crime weapon along with empties was received in office of Forensic Science Laboratory, Police Crime Branch Balochistan on 16.08.2022, twenty (20) days after the recovery, and the same should have been sent without unnecessary delay after being collected from the spot, but mere delay does not render the recovery inconsequential.
As far as non-association of private witness is concerned, since the recovery has been made on the pointation of appellant in consequence of a disclosure, therefore, compliance of section 103 of Cr.P.C. is not mandatory and its violation is not fatal to the case of the prosecution.
5. Epitome of the above discussion is that the prosecution has successfully proved the recovery of crime weapon from the possession of the appellant by means of credible and confidence inspiring depositions of the above witnesses, leaving no room to doubt, thus, we firmly believe that the prosecution has proved the indictment against the appellant. The Trial Court, while rendering the impugned judgment has also rightly appraised the evidence, requiring no interference by this Court.
6. Corollary, the appeal being shorn of merits is dismissed; conviction and sentence awarded to the appellant by the Trial Court vide impugned judgment dated 27.07.2023 is hereby maintained.
JK/87/Bal. Appeal dismissed.