Nazeer Ahmad Versus State
This criminal appeal challenges the judgment of the trial court, which convicted the appellant under Section 15(e) of the Balochistan Arms Act, 2021, for the illegal possession of a Kalashnikov and ammunition, sentencing him to five years of rigorous imprisonment. The core legal question was whether the prosecution successfully proved the recovery of the weapon from the appellant's possession beyond a reasonable doubt. The High Court observed that the recovery was allegedly made from a house in District Jaffarabad, while the appellant's recorded address was in District Khuzdar. Crucially, the investigating officer failed to establish any legal connection, such as ownership or tenancy, between the appellant and the premises where the recovery occurred, nor were any neighbors examined to corroborate the appellant's residence there. Furthermore, the court noted that the recovery had been disbelieved in a connected murder case. Consequently, the High Court held that the prosecution failed to prove its case, set aside the conviction, and acquitted the appellant. The judgment reinforces the principle that the prosecution must establish a definitive link between an accused and the premises from which incriminating evidence is recovered.
- Is a conviction under the Arms Act sustainable when the prosecution fails to establish the accused's connection to the premises where the weapon was recovered?
- Does the failure to examine independent witnesses or neighbors regarding the recovery of a weapon from a house undermine the prosecution's case?
- Can a conviction for illegal possession of a weapon be maintained if the recovery of said weapon was previously disbelieved by the court in a connected case?
- Section 15(e), Balochistan Arms Act 2021
- Section 382-B, Code of Criminal Procedure 1898
- Section 342, Code of Criminal Procedure 1898
- Section 302, Pakistan Penal Code 1860
- Section 147, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
Shaukat Ali Rakhshani, J .--- Appellant, Nazir Ahmed calls in question the veracity and legality of the judgment dated 18.02.2023 ("impugned judgment") authored by learned Sessions Judge, Usta Muhammad ("trial court"), whereby he was convicted and sentenced under section 15 (e) of the Balochistan Arms Act, 2021 ("Arms Act of 2021") to suffer five years RI with fine of Rs.10,000/- (ten thousand) and in default thereof to suffer further fifteen days SI, inclusive of the premium of section 382-B of the Criminal Procedure Code, 1898 ("Cr.P.C.") emanating from a case vide FIR No.17/2022 (Ex.P/3-A) dated 31.07.2022 registered with Police Station Saddar District Jaffarabad lodged by complainant Madni Khan (PW-2) against the appellant for possessing an unlicensed kalashnikove along with nine live rounds.
2. Concisely stated, facts of the case are that crime report ibid was lodged by complainant SI Madni Khan (PW-2) with the averments that on 31.07.2022 appellant was being interrogated in a case vide FIR No.12/2021 registered under sections 302, 147, 148, 149 P.P.C., he made disclosure and led the police personnel towards his house near Jaffarabad, where a kalashnikove with a magazine and nine live rounds of a 7.62, having been hid under the ground in his house, wrapped in plastic was got recovered by police contingent on his pointation, whereof he failed to produce its license, henceforth, the recovered kalashnikove and ammunition were taken into possession and parcel No.4 was prepared.
After formal arrest of the appellant in the instant case and usual investigation thereof, he was sent up before the trial court to face the consequences of his culpable deeds, where after denial of the indictment, the prosecution in order to bring home the charge produced as many as four witnesses. The appellant was examined under section 342 of Cr.P.C., who denied the allegations and professed innocence. He neither opted to record his statement on oath nor produced any defence witness, thus the trial culminated into a verdict of guilt; whereby the appellant was convicted and sentenced vide impugned judgment in the terms mentioned in para supra.
3. Messrs Najamuddin Mengal and Hafeezullah, 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 kalashnikove. He asserted that the prosecution has failed to procure and produce ballistic report regarding kalashnikove being in working condition, thus the appellant merits to be acquitted of the charge.
On the other hand, Mr. Jamil Akhtar Gajani, learned AAG resisted the appeal and refuted the contentions advanced by the learned counsel for the appellant. According to him, the prosecution has successfully proved the recovery of the kalashnikove and the trial court has rightly convicted and sentenced the appellant, which needs not to be meddled with and as such requested for dismissal of the appeal.
4. Heard. Record sussed out.
5. Record reflects that on 31.07.2022 the appellant was being interrogated by Madni Khan SI (PW-2) in a murder case vide FIR bearing No.12 of 2021, who made disclosure in the presence of witnesses Irfan Ahmed C (PW-1) and Muhammad Azam that he can get recover the 222 kalashnikove used in the crime, as such, he led them towards his house near Jaffarabad, where a kalashnikove along with a magazine and nine 7.62 live rounds, having been hid under the ground in his house wrapped in plastic was got recovered on his pointation, whereof recovery memo (Ex.P/1-A) was prepared and FIR (Ex.P/3-A) on the basis of murasila (Ex.P/2-A) sent by Madni Khan SI (PW-2) was registered, the copy whereof was taken in the instant case through recovery memo (Ex.P/4-B). Allegedly, recovery of kalashnikove along with a magazine and nine 7.62 live rounds having been hid under the ground in his house, wrapped in plastic was got recovered on the pointation of the appellant on 31.07.2022 after lapse of almost one year. However, the address of the appellant has been mentioned as Anjera Zehri District Khuzdar, whereas recovery has been made from a house situated in District Jaffarabad, thus in such circumstances, it was obligatory upon the IO (PW-2) to have had established the connection of the appellant with the house wherefrom recovery was effected either as a owner or a tenant, but no documents thereof has been secured. IO Madni Khan (PW-2) has failed to record the statements of the neibourers of the house wherefrom recovery has been made to establish that the appellant was living in the said premises. So be it, in the connected case of the murder bearing FIR No. 12/2021, the appellant was convicted by the trial court, but his court while allowing the appeal recorded acquittal of the appellant by disbelieving the recovery.
6. For the foregoing reasons, we believe that the prosecution has failed to drive home the charge against the appellant under section 15 (e) of Arms Act of 2021, but the trial court, while misreading the evidence has erred in law and facts convicted and sentenced the appellant, henceforth, we are not inclined to maintain the conviction and sentence awarded to the appellant for the foregoing reasons.
7. For what has been discussed hereinabove, the instant appeal is allowed and the conviction and sentence awarded to the appellant by the trial court vide impugned judgment dated 18.02.2023 is set-aside. Corollary, the appellant is acquitted of the charge. The appellant be released forthwith, if not detained in any other case.
JK/14/Bal. Appeal allowed.