Mir Hassan Versus State
This criminal appeal challenges the judgment of the Additional Sessions Judge-II, Lasbella at Hub, which convicted the appellant under Section 13(e) of the West Pakistan Arms Ordinance, 1965, for the recovery of a knife. The core legal question was whether the prosecution successfully established that the recovered knife constituted an 'arm' under the Ordinance, given the statutory exclusion for kitchen knives or knives used in good faith for professional purposes. The High Court held that the prosecution failed to prove that the recovered item was not a kitchen knife or used for professional purposes. Furthermore, the Trial Court failed to examine the appellant under Section 342 of the Code of Criminal Procedure, 1898, regarding the nature of the knife, rendering the evidence inadmissible against him. Consequently, the Court set aside the conviction and acquitted the appellant, establishing the principle that the prosecution bears the burden of proving that a recovered knife does not fall within the statutory exceptions provided in the Arms Ordinance, 1965.
- Does the prosecution bear the burden of proving that a recovered knife is not a kitchen knife or used for professional purposes under the West Pakistan Arms Ordinance 1965?
- Can evidence regarding the nature of a recovered knife be used against an accused if the Trial Court failed to put a specific question regarding it during the examination under Section 342 of the Code of Criminal Procedure 1898?
- Does a knife with a blade of four inches or more automatically qualify as an 'arm' under the West Pakistan Arms Ordinance 1965 without considering the statutory exceptions?
- Section 13(e), West Pakistan Arms Ordinance 1965
- Section 382-B, Code of Criminal Procedure 1898
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 342, Code of Criminal Procedure 1898
- Section 3(1)(b)(iii), West Pakistan Arms Ordinance 1965
Shaukat Ali Rakhshani, J .--- Appellant has put in the captioned appeal to set at naught the judgment dated 22.06.2023 ("impugned judgment") rendered by learned Additional Sessions Judge-II Lasbella at Hub ("Trial Court") arising out of FIR No.261 of 2020 (Ex.P/3-A) registered with Police Station City, Hub, whereby he was convicted and sentenced under section 13 (e) of the Arms Ordinance of 1965 ("Ordinance of 1965") to suffer R.I for three (3) years with the premium of section 382-B of Criminal Procedure Code, 1898 ("Cr.P.C.").
2. Facts germane for disposal of the case in hand are that complainant Sikandar Shair S.I.P (PW-1) got lodged crime report ibid on the basis of murasila (Ex.P/1-A) with the averments that on 15.08.2022, the appellant during interrogation in a murder case vide FIR bearing No.266 of 2020 for the offences punishable under sections 302 and 34 P.P.C. made disclosure and got recovered the crime weapon i.e., knife, having 6 inches length, width 1 inches and handle having 4 inches length and one broken Oppo mobile phone hid inside the blankets from a room of his house situated at Ameer Abad.
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. Heard. Record gone through with the able assistance of learned counsel for the parties, which reveals that on the pointation of the appellant a knife, having 6 inches length and 1 inches width was recovered from a room of his house hid beneath the blankets.
4. Bare reading of section 3 (1) (b) (iii) of Ordinance of 1965 reads as under;
"3. Definitions: (1) In this Ordinance, unless the context otherwise requires, the following expressions shall have the meanings hereby respectively assigned to them, that is to say--
(a)"ammunition" includes-
(i) ..
(ii) ..
(iii) ..
(iv) ..
(v) ..
(vi) ..
(b) "arms" includes-
(i) ..
(ii) ..
(iii) air pistols, bayonets, swords, sword-sticks daggers, knives with blades of four inches or more (but not kitchen knives or knives used in good faith for the carrying on of a profession), and flick-knives irrespective of the blade;]
(iv ..
(c) "cannon" includes-
(i) ..
(ii) ..
(iii) ..
(iv) ..
(v) ..
(vi) ..
(vii) ..
(viii) ..
(ix) ..
(d) "Government" means the "Federal Government for the whole of Pakistan and the "Provincial Government" in the case of a Province;
(dd) ..
(e) ..
(f) ..
(g) ..
[Emphasize added]
5. The prosecution has failed to establish that the knife recovered from the appellant was not a kitchen knife or was not used in good faith for carrying on a profession, which is requisite of the indictment. Moreso, on closure of the prosecution evidence, the Trial Court also failed to put question to the appellant in respect of use of the recovered knife not being a kitchen knife, thus in absence of such question in order to seek explanation, such evidence cannot be used against the appellant.
6. For the foregoing reasons, we believe that the prosecution has failed to drive home the charge against the appellant, but the Trial Court, while ignoring such aspect of the matter by misreading the evidence convicted and sentenced the appellant contrary to law and facts, henceforth, we are not inclined to maintain the conviction and sentence awarded to the appellant.
7. Corollary, the appeal is allowed and consequent thereto, the impugned judgment passed by the Trial Court dated 22.06.2023 is set-aside and the appellant is acquitted of the charge, who be released forthwith, if not incarcerated in any other case.
JK/153/Bal. Appeal allowed.