HAKIM KHAN Versus State
The appellant, Hakim Khan, was convicted under section 13/20/65 of the Arms Ordinance, 1965, for the unlawful possession of an unlicensed Kalashnikov and ammunition recovered following a police encounter in which a proclaimed offender was killed and the appellant sustained injuries. He was sentenced to seven years' rigorous imprisonment with a fine. His appeal to the High Court having been dismissed, the appellant approached the Supreme Court of Pakistan. The core legal questions involved the credibility of official witnesses regarding the recovery of the weapon without public witnesses, the veracity of the defence plea of a fabricated case arising from alleged police enmity, and whether the appellant suffered prejudice by allegedly not being represented by counsel in the High Court. The Supreme Court dismissed the appeal, holding that official witnesses are competent and credible where cross-firing precludes public witnesses, that the defence failed to establish prior police enmity, and that the appellant had adequate legal representation. The court affirmed that official testimony remains reliable in the absence of independent corroboration under such circumstances.
- Whether official witnesses are competent to prove the recovery of an unlicensed weapon in the absence of public witnesses when an arrest occurs during a police encounter?
- Does a bare assertion of police enmity suffice to prove that a criminal case under the Arms Ordinance has been fabricated?
- Whether a conviction under the Arms Ordinance can be sustained solely on the testimony of police officials involved in an encounter?
- Section 13/20/65, Arms Ordinance 1965
- Section 342, Code of Criminal Procedure 1898
- Section 382-B, Code of Criminal Procedure 1898
TARIQ PARVEZ, J.--- The appellant Hakim Khan, besides being charged in two other F.I.Rs., was charged in case F.I.R. No.40 of 2004 dated 13-6-2004 registered under section 13/20/65 of the Arms Ordinance. According to the prosecution case, during an encounter a proclaimed offender Ali Noor was killed, whereas during the said police encounter the accused/appellant-Hakim Ali was injured and besides other arms/anmunitions, one Kalashnikov having 170 live rounds, 7-loaded magazine and patta magazine were recovered. The appellant in injured condition was shifted to hospital, where he after his recovery disclosed that he has no licence of the recovered weapon/ammunition.
2. Accordingly the case was registered and the accused-appellant was sent up to face trial under the said charge. The prosecution produced Khalil Ahmad ASI as P.W.1, Muhammad Idrees ASI as P.W.2 and Nazir Ahmad Inspector/SHO as P.W.3 to prove the charge against the appellant. It also exhibited documentary evidence Exb.PA to Exb.PC; where after the accused-appellant was examined under section 342, Cr.P.C. wherein he denied the allegations and claimed the prosecution case to be concocted in order to prevent him from registration of case against police for extra judicial killing of Ali Noor deceased.
3. Upon conclusion of the trial, the learned trial Court vide judgment dated 30-9-2004 convicted the appellant under section 13/20/65 of the A.O., 1965 and sentenced him to seven years imprisonment with fine of Rs.20,000 and in case of default in payment of fine to undergo six months' R.I. with benefit of section 382-B, Cr.P.C. extended.
4. Feeling aggrieved from the conviction/sentence, the accused-appellant preferred Cr.A. 433-J of 2005, which has been dismissed by means of the impugned judgment and his conviction/sentence recorded by the trial Court has been maintained.
5. Learned counsel appearing on behalf of the appellant has argued that pointation of un-licensed/without permit Kalashnikov on the person of the appellant is fabricated in order to strengthen the case against the appellant where he has been made accused in case F.I.R. No.39 wherein the appellant has sustained firearms injury but to militate the illegal act on the part of the police present case has been registered against him. His plea before the learned trial Court was that as his friend namely Ali Noor @ Allah Noor was illegally arrested and latter killed in fake encounter over which the appellant had threatened the police for registration of a criminal case against them, the present fabricated case is made against the appellant.
6. Learned Additional Prosecutor-General for the State however, has argued that no previous enmity between the appellant and the police party who have arrested the appellant and who have recovered unlicensed weapon from him, has been brought on record.
7. We have gone through the record including the evidence produced by the prosecution as well as the defence version given by the appellant in his statement under section 342, Cr.P.C.
8. Khalil Ahmed, ASI (P.W.1) and Nazir Ahmed, Inspector (P.W.3) have given direct testimony about the arrest of the appellant in injured condition with unlicensed weapon for which charge was framed against him under section 13/20/65 of the Arms Ordinance, 1965. No doubt both are official witnesses but keeping in view the fact that there was cross firing between the police and the appellant where he refused to surrender to the lawful command, there is no question of any person from public being available for the purpose of witnessing the recovery.
9. Learned counsel fort the appellant has also argued that grave miscarriage of justice has been caused to the appellant because he was not represented by a counsel before the learned Division Bench of the Lahore High Court where his appeal was being heard.
Perusal of the record would show that the appellant was defended by learned counsel who had subjected the prosecution witnesses to sufficient long cross-examination and he opted not to engage counsel before the Lahore High Court. However, his case has been heard by us with the able assistance of learned and senior defence counsel appearing on his behalf. Thus no prejudice has been caused to him.
In this view of the matter, we find that there is no force in this appeal, therefore, the same is dismissed.
MWA/H-2/SC Appeal dismissed.