ZAKIR HUSSAIN Versus State

MUHAMMAD HASHIM KHAN KAKAR, J.--- Appellant Zakir Hussain son of Jan Ali, has challenged the judgment dated February 26th 2016, passed by learned Additional Sessions Judge-III, Quetta, whereby he was found guilty of the offence and sentenced to suffer four (4) years Rigorous Imprisonment ("RI") under section 13-D of the Pakistan Arms Ordinance, 1965 and to pay fine of Rs.10,000 (Rupees ten thousand) or in default thereof to further undergo Simple Imprisonment ("SI") for a period of 3 months with the benefit of section 382-B, Cr.P.C.

2. It is case of the prosecution that on May 20th, 2014 at about 2:30 p.m. in pursuance of Crime No.36 of 2014, under section 324, P.P.C. the house of one Karar Hussain was raided by complainant Nasrullah, SI/SHO and other police officials and the appellant was found in possession of one Kalashnikov bearing No. 56-114179915 and 15 live cartridges.

3. On the stated allegations, the formal charge was framed and read over to the appellant, to which he did not plead guilty and claimed to be innocent. Thereafter, the prosecution examined PW-1 Nasrullah, SI/SHO as complainant of the case, who produced his murasila Ex.P/1, PW-2 Ali Ahmed, Constable, as recovery witness, who produced the recovery memo Ex.P/2. Kalashnikov Art. P/1 and live cartridges Art. P/3 and PW-3 Amir Qazmi, investigating officer of the case.

4. The appellant was examined under section 342 of the Cr.P.C. wherein he denied the allegations levelled against him by the prosecution and took the plea of false implication. He either opted to make statement under section 340(2), Cr.P.C. on oath, nor produced any defence witness. The learned trial court, after hearing learned counsel for the parties, convicted and sentenced the appellant, as stated above.

5. We have heard learned counsel for the appellant as well as learned Deputy Prosecutor General for the State and have gone through the record with their valuable assistance. It has been argued by the learned counsel for the appellant that the prosecution had failed to prove its case against the appellant beyond reasonable doubt and, thus, this appeal warrants acceptance with a resultant acquittal of the appellant. On the contrary, learned Deputy Prosecutor General maintained that the prosecution had succeeded in proving the guilt of the appellant to the hilt, therefore, the present appeal deserves dismissal.

6. I have considered the contentions put forth by the parties' Counsel and have gone through the entire material and evidence available on record. The record indicates that the recovery of alleged unlicensed Kalashnikov along with 15 live rounds, was effected on arrest of the appellant in connected case i.e. Crime No. 36 of 2014, under section 324, P.P.C. Neither the appellant Fakir Hussain was nominated nor wanted in the said crime, nor is he owner of the house in question. As a matter of fact, one Karar Hussain, who happened to be the real brother of the present appellant, was nominated and wanted in the aforesaid crime and the house in question also belongs to him.

7. The appellant belongs to a poor family and is a student of Quaid-i Azam University, Islamabad. During the course of arguments, he came forward with the heavy heart and having tears in his eyes stated that being a student his weapon is his pen not a Kalashnikov. According to his version, keeping a Kalashnikov by a student is no less than living in Rome and fighting with Pope. He stated that due to absconsion of his real brother namely, Karar Hussain, who was nominated and wanted in the aforesaid crime, he has been falsely involved in the instant case. On the contrary, the case of prosecution suffers from contradictions, discrepancies and lacunas. By putting both the pleas in juxtaposition, the plea of the accused is not only plausible but also seems nearer to the truth.

8. There is another important aspect of the case, which seems to be oversighted by the learned trial Court while convicting the appellant. Admittedly, simpliciter, possession of arms and ammunition does not constitute an offence under section 13(d) or (e) of the Arms Ordinance, 1965, it becomes an offence only when the possessor of the same failed to produce permit or license. There is nothing on record to suggest that at the time of alleged recovery, the petitioner was asked for production of the license or permit. The murasila as well as the statement of appellant, recorded under section 342 of Cr.P.C. are completely silent in this respect. Furthermore, the mandatory provisions of section 103 of the Cr.P.C. had been violated in the present case, as alleged by the accused. The main object of compliance of section 103 of the Cr.P.C. is to ensure that recovery is effected honestly and fairly so as to exclude the possibility of false implication and fabrication. Section 103 of the Cr.P.C. is not a decoration but designed to provide safeguard against police excesses, as such, the alleged recovery of Kalashnikov without joining disinterested persons in spite of availability, is highly doubtful and no reliance can be placed upon it, especially, when ulterior motives have been alleged by the appellant.

In view of what has been stated above, the prosecution has failed to establish its case against the appellant beyond reasonable doubt, thus, the appeal is allowed, impugned judgment is set aside and the appellant is acquitted of the charge. The appellant is on bail, which stand discharged.

These are the reasons of my short order dated 20th October, 2017, announced in the open Court.

JK/144/Bal. Bail granted.