MUHAMMAD AAMER Versus State
ANWAARUL HAQ PANNUN, J.--- This judgment will decide captioned criminal revision petition, filed by the petitioner challenging the legality and propriety of judgments dated 11.01.2018 passed by learned trial Court/Judicial Magistrate Section-30, Vehari, on the conclusion of a trial in case FIR No.368/13 dated 28.7.2013 under section 13 of the Pakistan Arms Ordinance, 1965 at Police Station Luddan, District Vehari. The judgment of learned trial court was assailed through appeal and the Appellate Court/ASJ, Vehari, vide judgment dated 04.09.2018 while upholding his conviction and sentence, inflicted upon him by trial court dismissed the same. The petitioner was convicted and sentenced in the following term:-
Under section 13 of the Pakistan Arms Ordinance, 1965.
Three years' R.I. with fine of Rs.10,000/- and in default whereof to further undergo SI for two months. He was also extended the benefit of section 382-B, Cr.P.C. The sentence would run concurrently with other imprisonment, if any.
2. Pithily, the allegation against the petitioner is that he was arraigned as an accused, in case FIR No.349/2013 dated 20.07.2013 under sections 302, 201, 34, P.P.C., Police Station Luddan, Vehari, during investigation whereof, in pursuance of his disclosure he got recovered unlicensed pistol .30 bore (P-1) along with two live bullets (P-2/1-2) from his shop, despite demand he could not produce any licence or a permit for its possession, consequently, a separate case FIR No.368/13 under section 13 of Pakistan Arms Ordinance, 1965 was registered against him. The petitioner on submission of challan was charge sheeted to which he denied and claimed trial. On the conclusion of trial, the petitioner was convicted and sentenced as mentioned op-cit by the learned trial court. His appeal also failed before the learned lower Appellate Court. It will be relevant to mention here that the petitioner, in the above referred case of Qatl-i-amd, had already been convicted and sentenced to death with a further direction to pay Rs.1,00,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased and in default whereof to further undergo imprisonment for six months vide judgment dated 30.04.2016 passed by learned Addl. Sessions Judge, Vehari. The learned trial court submitted a reference under section 374, Cr.P.C. His Criminal Appeal No.413 of 2016 along with Murder Reference No.76/2016 had been decided by the learned Division Bench of this court while accepting the appeal and setting aside his conviction and sentence, had acquitted him vide judgment dated 04.03.2019. The Murder Reference had been answered in negative. The above resume of the facts indicates that after the dismissal of his appeal on 04.09.2018 (in case under Arms Ordinance), the petitioner did not invoke revisional jurisdiction of this Court challenging the legality or propriety of his conviction and sentence. He remained under a deep slumber for quite some time. The petitioner, has filed this petition, after his acquittal in the murder case vide judgment dated 04.03.2019 passed by this Court.
3. Pithily, the argument of the learned counsel for the petitioner is that the case FIR No.368/13 dated 28.7.2013 under section 13 of the Pakistan Arms Ordinance, 1965 at P.S. Luddan, District Vehari, in which the impugned conviction and sentence had been recorded against the petitioner was a progeny or an offshoot of case FIR No.349/13 dated 20.7.2013, offence under sections 302, 201, 34, registered at P.S. Luddan, District Vehari, during the investigation of which, as result of his alleged disclosure, he got recovered an unlicensed weapon/pistol (P-1), consequently, instant case was registered against him, the petitioner, has since earned his acquittal in the murder case, therefore, the impugned conviction and sentence imposed upon him may be set aside. He, in order to re-enforce his above argument has referred to Para No.11 of the acquittal judgment dated 04.03.2019 passed by the learned Division Bench in murder case in his appeal against conviction which is reproduced as under:-
"11. As far as recovery of .30 bore pistol (P-1) at the instance of appellant which was taken into possession vide recovery memo (Exh.PH) is concerned, the same is inconsequential because of the reason that the report of Punjab Forensic Science Agency (Exh.PM) is simply to the effect that the pistol was in mechanical operating condition".
4. In order to appreciate the above noted contention containing pure question of law, and the question involved, requiring its determination, essentially, the meaning and scope of word offence shall have to be explored. According to Corpus Juris Secundum Edition 2006, Volume 22, page 22 an offense is the transgression of a law, the word frequently being sued interchangeably with "crime" or "criminal offense." The word "offense" is usually used to describe a crime. In its usual sense, it means a crime or misdemeanor, or a breach of the criminal law. In its legal significance, an "offense" is a violation of law for which a penalty is prescribed. It is an act committed or omitted in violation of a public law, either forbidding or commanding it. Furthermore an "offense" is a breach of the laws established for the protection of the public, as distinguished from an infringement of mere private rights, for which a penalty is imposed or punishment inflicted in any judicial proceeding. The word implies a violation of a law by which alone it can be denounced. The terms "crime, "offense," and "criminal offense" are all said to be synonymous and ordinarily used interchangeably. "Offense" any comprehend every crime and misdemeanor, or may be used in a specific sense as synonymous with "felony" or with misdemeanor," as the case may be, or as signifying a crime of lesser grade, or an act not indictable, but punishable summarily or by the forfeiture of a penalty.
According to Halsbury's Laws of India, the fundamental principle of criminal law is that what constitutes crime is essentially a matter of statute law. The Code of Criminal Procedure, 1898 and the General Clauses Act, 1897 defines word "Offence" as it means any act or omission made punishable by any law for the time being in force. According to Stroud's Judicial Dictionary of Words and Phrases 8th Edition "Prima facie, an 'offence' is equivalent to a crime" (per Collins J., Derbyshire CC v. Derby [1896] 2 Q.B. 57, 58, affirmed [1896] 2 Q.B 297; [1897] A.C. 550. According to Black's Law Dictionary, 8th Edition offense is a violation of the law; a crime, often a minor one. The terms `crime, 'offense' and 'criminal offense' are all said to be synonymous and ordinarily used interchangeably. 'Offense' may comprehend every crime and misdemeanor, or may be used in a specific sense as synonymous with 'felony' or with 'misdemeanor', as the case may be, or as signifying a crime of lesser grade, or an act not indictable, but punishable summarily or by the forfeiture of a penalty.' 22 C.J.S. Criminal Law S 3, at 4 (1989). In Merriam-Webster's Dictionary of Law: word offence is defined as a violation of law; especially a criminal act. According to K J Aiyar's Judicial Dictionary offence is defined as the commission of an act contrary to or forbidden by law. [Standard Chartered Bank v. Directorate of Enforcement AIR 2006 SC 1301, 1314, [2006] 4 SCC 278, (2006) 197 ELT 18, (2006) 130 Comp Cas 341 (SC)]. According to the Chambers 21st Century Dictionary offence is the breaking of a rule or law. In case of Standard Chartered Bank v. Directorate of Enforcement, (2006) 4 SCC 278 the term 'offence' is defined as the commission of an act contrary to or forbidden by law. It is not confined to the commission of a crime alone. The word 'offence' generally implies infringement of a public duty, as distinguished from mere private rights punishable under criminal law. According to Advance Law Lexicon 4th Edition the word offence denotes a thing made punishable by the Code. The word offence generally implies infringement of public duty as distinguished from mere private right punishable under criminal law. (AIR 1997 SC 2232)
The term 'Offence' has been defined in section 40 of P.P.C., as under:-
"Offence": Except in the chapters and sections mentioned in clauses 2 and 3 of this section, the word "offence" denotes a thing made punishable by this Code. In Chapter IV, Chapter V-A and in the following sections, namely, Sections 64, 65, 66, 67, 71, 109, 110, 112. 114, 115, 116, 117, 187, 194, 195, 203, 211, 213, 214, 221, 222, 223, 224, 225, 327, 328, 329, 330, 331, 347, 348, 388, 389 and 445, the word "offence" denotes a thing punishable under this Code, or under, any/special or local law as hereinafter defined.
And in sections 141, 176, 177, 201, 202, 212, 216 and 441 the word "offence" has the same meaning when the thing punishable under the special or local law is punishable under such law with imprisonment for a term of six months or upwards, whether with or without fine.
41. "Special law": A "special law" is a law applicable to a particular subject.
42. "Local Law" A "local law" is a law applicable only to a particular part of the territories comprised in Pakistan.
5. From above, it flows that every act or omission, constitutes an offence if the same is duly defined under any of the laws i.e. general laws, special laws and local laws; which if proved, on trial, ensues into a judicial verdict, called conviction, followed by imposition of prescribed sentence by the trial court. It is paramount to mention here that before passing conviction and sentence against the persons found guilty for the commission of an offence, by a court of competent jurisdiction, the accused, during trial proceedings either has to plead guilty at the time of framing of charge or while refuting it has to claim trial. The trial proceedings consist of certain steps i.e. taking cognizance of the offence, supply of the copies of incriminating statements to the accused, framing of charge, recording of evidence, putting evidence to the accused enabling him to give explanation, if any, affording him an opportunity to adduce the defence evidence, if any, and finally the verdict i.e. judgment, by the court. All the steps referred above can validly be taken by a court which has been conferred upon, the jurisdiction, by or under law, otherwise proceedings become coram non judice in the eyes of law, thus unsustainable. The charge, being pivotal for holding a trial, as observed herein above, has been defined under section 4(c) which is reproduced as under:-
"Charge". "Charge" includes any head of charge when the charge contains more heads than one.
Chapter XIX deals with the framing of charge against a person-accused of having committed an offence.
221. Charge to state offence. (1) Every charge under this Code shall state the offence with which the accused is charged.
(2) Specific name of offence; sufficient description. If the law which creates the offence gives it any specific name, the offence may be described in the charge by that name only.
(3) How stated where offence has no specific name. If the law which creates the offence does not give it any specific name, so much of the definition of the offence must be stated as to give the accused notice of the matter with which he is charged.
(4) The law and section of the law against which the offence is said to have been committed shall be mentioned in the charge.
(5) What implied in charge. The fact that the charge is made is equivalent to a statement that every legal condition required by law to constitute the offence charged was fulfilled in the particular case.
(6) Language of charge. The charge shall be written either in English or in the language of the Court.
(7) Previous conviction when to be set out. If the accused having been previously convicted of any offence, is liable by reason of such previous conviction, to enhanced punishment, or to punishment of a different kind, for a subsequent offence, and it is intended to prove such previous conviction for the purpose of affecting the punishment which the Court may think fit to award for the subsequent offence, the fact, date and place of the previous conviction shall be stated in the charge. If such statement has been omitted, the Court may add it any time before sentence is passed.
The Hon'ble Supreme Court of Pakistan in Criminal Original Petition No.06 of 2012 in Suo Motu Case No.04 of 2010, decided on 26th April, 2012 reported in PLD 2012 Supreme Court 553 in its head note `o' has held as under:-
----S. 221---Constitution of Pakistan, Art. 204---Contempt of Supreme Court---Charge to state offence---Scope---Charge against the accused (Prime Minister) was of non-implementation of orders and direction of the Supreme Court---Scope---Section 221, Cr.P.C., clarifies that a charge is to state the offence and if the offence with which an accused is charge is given a specific name by the relevant law then the offence may be described in the charge "by that name only"---According to section 221, Cr.P.C. "If the law which creates the offence does not give it any specific name, so much of the definition of the offence must be stated as to give the accused notice of the matter with which he is charged"---Section 221, Cr.P.C., further provides that "the law and section of the law against which the offence is said to have been committed shall be mentioned in the charge"---In the present case, not only the name of the offence, i.e. contempt of court had been specified in the charge framed against the accused but even the relevant constitutional and legal provisions defining `contempt of court' had been mentioned in the charge framed, which in terms of section 221(5), Cr.P.C., "is equivalent to a statement that every legal condition required by law to constitute the offence charges was fulfilled in the particular case".
6. The edifice of the petitioner's case, since rests upon the strength of a subsequently passed judgment of acquittal, therefore, the question of law involved, can also be viewed yet from another angle.
Art.54. Previous judgments relevant to bar a second suit or trial. The existence of any judgment, order or decree which by law prevents any Court from taking cognizance of a suit or holding a trial, is a relevant fact when the question is whether such Court out to take cognizance of such suit or to hold such trial.
55. ------------------------------------------------------------------------
56. ------------------------------------------------------------------------
57. Judgments, etc., other than those mentioned in Articles 54 to 56, when relevant. Judgments, orders or decrees, other than those mentioned in Articles 54, 55 and 56, are irrelevant, unless the existence of such judgment, order or decree is a fact in issue or is relevant under some other provisions of this Order.
In case titled American Life Insurance Company (Pakistan) Ltd. v. Master Agha Jan Ahmed and another (2011 CLD Karachi 350), its headnote (a) is reproduced infra:-
"----Art. 57---Previous judgment---Relevancy---Conviction in criminal trial---Effect---Previous judgment, order or decree is irrelevant unless either (i) existence of such judgment, order or decree is itself a fact in issue, or (ii) judgment, order of decree is relevant under some other provision of Qanun-e-Shahadat, 1984---Judgment and conviction in a criminal case is not even relevant in another or subsequent criminal trial." and case titled Khushi Muhammad alias Natho v. The State (PLD 1986 SC 146), its postulate (c) is reproduced as under:-
"----S.43-Penal Code (XLV of 1860), S. 307-West Pakistan Arms Ordinance (XX of 1965), S. 13-D-Evidence recorded in main case (under S. 307, P.P.C.), held, could not be relied upon for upholding conviction of accused under Arms Ordinance, 1965-Each case has to be judged upon its own facts established by evidence led therein-A judgment was not admissible for purpose of proving reasons for judgment or for using it, findings of facts as evidence of those facts in another case."
7. The object for the description of offence is to put the accused under the proper notice of the matter he is charged. In my judicial estimation, the subject will remain insatiable if some other, relevant provisions of law are not considered. Section 367, Cr.P.C. is reproduced infra:-
367. Language of judgment: Contents of Judgment.
(1) ------------------------------------------------------------------------
(2) It shall specify the offence (if any) of which, and the section of the Pakistan Penal Code or other law under which the accused is convicted, and the punishment to which he is sentenced.
(3) Judgment in Alternative. When the conviction is under the Pakistan Penal Code and it is doubtful under which of two sections, or under which of two parts of the same section of that Code the offence falls, the Court shall distinctly express the same, and pass judgment in the alternative.
(4) If it be a judgment of acquittal, it shall state the offence of which the accused is acquitted and direct that he be set at liberty.
(5) ------------------------------------------------------------------------
(6) ------------------------------------------------------------------------
The above quoted provision of law clearly envisages that the Court while delivering its verdict commonly known, in the legal parlance as judgment, shall specifically express the offence and the section of the Penal law, under which the accused is convicted and sentenced. Even in case of acquittal, the judgment shall state the offence of which the accused is acquitted of and a direction shall be issued that accused be set at liberty, if under custody, and his bail bonds shall be ordered to be discharged, forthwith.
8. Although learned counsel for the petitioner has not argued in unequivocal and clear terms that the petitioner cannot be put at trial twice in view of Article 13-A of the Constitution of Islamic Republic of Pakistan, 1973, read with section 403, Cr.P.C. but I feel that from the tenor of the arguments of learned counsel for the petitioner as recorded in para No.3 of the judgment, by necessary implications, the petitioner's counsel intended to raise the question of double jeopardy. Instead of undertaking any discussion on the point. Reliance in this regard is placed on the case titled Hassan and others v. The State and others (PLD 2013 SC 793), its headnote (c) is reproduced as under:-
"...S. 403(1)---Constitution of Pakistan, Art. 185---Double jeopardy---Autrefois acquit and autrefois convict, principles of-- Applicability---Convict who was sentenced to death had undergone a period of custody equal to or more than a full term of imprisonment for life during the pendency of his legal remedy against his conviction---Question was as to whether sentence of death awarded to convict could be maintained by the Supreme Court despite the fact that he had already served out one of the two legal sentences provided for in S.302(b), P.P.C---Plea of accused was that in such a situation the Supreme Court must not, affirm the sentence of death and might reduce the same to imprisonment for life in view of provisions of S.403, Cr.P.C.---Validity---Principles of autrefois acquit and autrefois convict contained in S. 403(1), Cr.P.C. forbid a new trial after a conviction or acquittal on the basis of the same facts had attained finality but it was equally obvious that the said principle had no application to the present situation wherein holding of a new trial was not in issue---Principles of autrefois acquit and autrefois convict contained in S.403(1), Cr.P.C. had no relevance to a case wherein the question under consideration in an appeal was not as to whether a new trial of the convict should be held or not but the issue was as to which sentence would be the appropriate sentence for a convict."
Moreover, in the case titled State through Prosecutor-General, Punjab v. Jahangir Akhtar and others (2018 SCMR 733), the august Supreme Court of Pakistan in its headnote (1), has observed infra:-
"----Art.13(a)---Criminal Procedure Code (V of 1898), S.403---Simultaneous disciplinary and criminal proceedings-- Permissibility---Employment in police obtained on basis of fake and forged documents---As a disciplinary measure the respondents (police officials) were compulsorily retired from service but criminal proceedings against them were stopped on the basis that in view of their compulsory retirement it would amount to double jeopardy; held, that disciplinary action taken by a department and criminal prosecution were quite distinct from each other and could proceed simultaneously or one after the other and such separate actions did not attract the principle of double jeopardy---Disciplinary proceedings were meant solely for maintaining and ensuring purity of service whereas criminal prosecution was meant to punish a person for the offence committed by him---Supreme Court restored status of respondents as accused persons in the relevant criminal cases and the Trial Court was directed to proceed with their trials in accordance with law."
In case titled Muhammad Nadeem Anwar v. Securities and Exchange Commission of Pakistan through Director NBFCs Deptt., Islamabad (2014 SCMR 1376) in its headnote (b), it has been held as follows:-
"----S. 403---Constitution of Pakistan, Art 13(a)---General Clauses Act (X of 1897), S.26---Double jeopardy, principle of-- Scope---No person could be vexed twice and prosecuted or punished for the same offence, but if he was guilty of offence under another enactment, though by the same chain of facts, he could be tried, convicted and punished under that very offence committed by him." Emphasis supplied.
The above quoted judgments are complete answer, to the indirect argument of the learned counsel about double jeopardy.
9. The petitioner has since invoked the revisional jurisdiction of this Court, therefore, it will be appropriate to reproduce provisions of sections 435 and 439, Cr.P.C.
435. Power to call for records of inferior Courts. (1) The High Court or any Sessions Judge [....], may call for and examine the record of any proceeding before any inferior Criminal Court situate within the local limits of its or his jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of such inferior Court and may, when calling for such record, direct that the execution of any sentence be suspended and, if the accused is in confinement, that he be released on bail or on his own bond pending examination of the record.
[Explanation. All Magistrates, shall be deemed to be inferior to the Session Judge for the purposes of this sub section.]
439. High Court's powers of revision. (1) In the case of any proceeding the record of which has been called for by itself, [....] or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 423, 426, 427 and 428 or on a Court by section 338, and may enhance the sentence; and, when the Judges composing the Court of Revision are equally divided in opinion, the case shall be disposed of in manner provided by section 429.
It will be necessary to see this:
1. Scope of Revisional Power:
1.1 ...... in exercise of its revisional jurisdiction the High Court ought to have confined itself to correctness, legality, regularity or propriety of the proceedings of the courts below rather than embarking upon a full-fledged reappraisal of the evidence, an exercise fit for appellate jurisdiction.
(PLD 2019 Supreme Court 261)
2. Suo Motu Powers to examine legality or correctness of order:
2.1 ....... revisional jurisdiction can be exercised even suo motu so as to examine correctness, legality or propriety of an order passed by a subordinate Court.
2000 YLR 2619 [Lahore]
3. Restriction upon conversion of acquittal into conviction:
3.1 ..........although High Court has been conferred power of an Appellate Court under section 423 of the Cr.P.C. while exercising the powers of revision under section 439 of the Cr.P.C., clause (a) of subsection (1) of section 423 of the Cr.P.C. if read minutely has not awarded the power to appellate/revisional Court to convict any acquitted person by taking suo motu action....
3.2 ..... Revisional Court has no jurisdiction to award the sentence itself for the offence for which accused has been acquitted of the charge.
4. Power to enhance sentence:
4.1 The Appellate Court under Cr.P.C. is not authorized even to convert acquittal into conviction or enhance the sentence whereas section 439 Cr.P.C. confers such powers upon the Revisional Court i.e. the High Court to enhance the sentence ......
5. Proper opportunity of hearing:
6.1 In view of the clear language of section 439(2), Cr.P.C., as reproduced above, it was mandatory for the revisional Court to have afforded proper opportunity of hearing to the petitioner, after due notice to him, which the revisional Court admittedly failed to follow.
10. In order to examine the matter further from another angle in view of the factual matter of the case, it will be advantageous to reproduce provisions of section 300, P.P.C., which has been made punishable under section 302, P.P.C.
S. 300. Qatl-i-amd. Whoever, with the intention of causing death or with the intention of causing bodily injury to a person, by doing an act which in the ordinary course of nature is likely to cause death, or with the knowledge that his act is so imminently dangerous that it must in all probability cause death, causes death of such persons, is said to commit qatl-i-amd.
S. 302. Punishment of qatl-i-amd. Whoever commits qatl-i-amd shall, subject to the provisions of this Chapter be;
(a) punished with death as qisas;
(b) punished with death or imprisonment for life as ta'zir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in section 304 is not available; or
(c) punished with imprisonment of either description for a term which may extend to twenty-five years, where according to the injunctions of Islam the punishment of qisas is not applicable;
(Provided that nothing in clause (c) shall apply where the principle of fasad-fil-arz is attracted and in such cases only clause (a) or clause (b) shall apply.)
And
Section 9 of the Pakistan Arms Ordinance, 1965 is reproduced as under:-
9. Unlicensed possession of arms etc. No person shall have in his possession or under his control any arms, or any ammunition or military stores, except under a licence and in the manner and to the extent permitted thereby.
Section 13 Arms Ordinance provides penalty for breach of sections 4, 5, 8 to 11 of the Ordinance reading as follows:-
"Section 13.- Penalty for breach of sections 4, 5, 8 to 11. Subject to the provisions of sections 13-A and 13-B, whoever commits any of the following offences, namely:-
(a) Sells or keeps, offers or exposes for sale, any arms, ammunition of military stores, or undertakes the repairs of any arms in contravention of the provisions of section 4;
(b) Fails to give notice of the sale of arms and ammunition and of the purchasers name and address as required by section 4;
(c) Transports any arms, ammunition or military stores in contravention of a regulation or prohibition issued under section 5;
(d) Goes armed in contravention of the provisions of section 8;
(e) Has in his possession or under his control any arms, ammunition or military stores in contravention of the provisions of section 9;
(f) Fails to deposit arms, ammunition or military stores as required by section 10;
(g) Intentionally makes any false entry in a record or account which by a rule made under clause (d) of section 11 he is required to keep;
(h) Intentionally fails to exhibit anything which by a rule made under clause of section 11 he is required to exhibit; or
(i) Keeps, carries or displays any arms in contravention of an order issued under section 11-B.
Shall be punished with imprisonment for a term which may extend to seven years or with fine or with both:
Provided that the punishment for an offence committed in respect of any rifle of .303 bore or over, musket of .410 bore or over, pistol or revolver of .441 bore or over, or ammunition which can be fired from such musket, pistol or revolver, shall be imprisonment for a term which is not less than three years.
The act of commission of qatl-i-amd is an offence, has been defined under the Pakistan Penal Code. The act of keeping in possession of an unlicensed arms etc without permit or valid licence constitutes as an offence duly defined under a special law i.e. Pakistan Arms Ordinance, 1965. Both the offences have been given their specific names under the respective legislation. A person accused of committing either of the offence at trial has to be distinctly charged by a court of competent jurisdiction. The object behind proving recovery of weapon of offence i.e. pistol (P-1) during a murder trial is to lend corroboration to prosecution's case, which may consist of the ocular account or circumstantial evidence. The medical evidence also had a corroboration with ocular account. Respectful reliance is placed on the case of Muhammad Jamil v. Muhammad Akram and others (2009 SCMR 120) wherein the august Supreme Court of Pakistan has held as under:-
"----S. 302 (b)---Appreciation of evidence---Principle---In a case of direct evidence other pieces of evidence are used for corroboration or in support of direct evidence---."
It will be important to mention here that I have been able to lay my hand on the opinion in case titled Mataro v. The State (1984 PCr.LJ 1724) wherein in headnote (a) is held as under:-
"----S. 13(e)---Penal Code (XLV of 1860), S. 302---Recovery of unlicensed country-made pistol and cartridges---Appreciation of evidence---Witnesses, disbelieved by High Court in a criminal appeal in murder case whereby conviction set aside, held, not believable in connected appeal under West Pakistan Arms Ordinance, 1965. (witnesses)"
In case titled Yasir Chaudhry v. The State and another (MLD 2012 Lahore 1315), its headnote (b) is reproduced infra:-
"----S.249-A---Power of Magistrate to acquit accused at any stage---Scope---When the accused had been acquitted in the main case, he would become entitled to acquittal in a case which was an offshoot of the main case".
In case titled Tariq Saeed v. The State and another (2014 MLD Lahore 1561), my learned brother Shahid Hameed Dar-J, as he then was, has held as under:-
----S. 417(2-a)---Penal Code (XLV of 1860), S. 302---Pakistan Arms Ordinance (XX of 1965), S.13---Qatl-i-amd, possessing illicit arms---Appeal against acquittal---Accused who was acquitted for the murder charge, requested for his acquittal in case under S.13 of Pakistan Arms Ordinance, 1965, which request was acceded to, and accused was also acquitted of the charge under S.13 of Pakistan Arms Ordinance, 1965---Validity---Facts relating to recovery of dagger, were inseparably stitched with story qua the murder of the deceased--Said dagger had not been recovered from the possession of accused, but investigating officer took it in his possession in absence of accused---Accused was implicated as an accused of murder case, and he was also booked in a separate case under the same FIR---Witnesses of recovery of said dagger, who also deposed against accused in murder case, were disbelieved---Story of murder of the deceased and that of recovery of dagger both were disbelieved and accused acquitted---Case, depended a lot on the outcome of murder case, in which accused was acquitted---Recovery of the dagger was not an independent circumstance, but it stood imbedded in murder case, in which accused was acquitted---Complainant had failed to file appeal within prescribed time-limit---Appeal was also liable to be dismissed on that score."
It appears that while passing judgment, referred above, their lordships either had not properly been assisted or the case law on the subject had escaped their notice and the law laid down in following cases titled The State through Assistant Advocate-General Sindh v. Khalid Ahmed (2010 PCr.LJ Karachi 126) and case titled Irfan alias Irfoo and 2 others v. The State (MLD 2016 Sindh (Sukkur Bench) 1977) and case titled Khushi Muhammad alias Natho v. The State (PLD 1986 SC 146), its postulate (c) is reproduced as under:-
"----S. 43---Penal Code (XLV of 1860), S. 307---West Pakistan Arms Ordinance (XX of 1965), S. 13-D---Evidence recorded in main case (under S. 307, P.P.C.), held, could not be relied upon for upholding conviction of accused under Arms Ordinance, 1965---Each case has to be judged upon its own facts established by evidence led therein-A judgment was not admissible for purpose of proving reasons for judgment or for using it, findings of facts as evidence of those facts in another case."
11. Admittedly, the offence under section 13 of the Pakistan Arms Ordinance, 1965, was tried by learned Magistrate Section-30, Vehari. The murder case was tried by the court of learned Sessions Judge, Vehari. The offence of murder was committed on 17.09.2012. The offence under section 13 of the Pakistan Arms Ordinance, 1965 stood committed by the petitioner, the moment he got recovered weapon of offence i.e. on 28.07.2013. The Separate reports under section 173, Cr.P.C., in respect of both the offences were submitted before different courts of competent jurisdiction. After taking cognizance, separate charges were framed by respective courts while adopting legal formalities. The evidence was separately recorded by both the courts below and the accused was confronted with evidence under section 342, Cr.P.C. on different dates by different courts and ultimately conviction was recorded by two courts. Neither the charge was framed under section 13/20/65, A.O. in the murder case nor was he tried for the same, consequently, neither convicted nor acquitted. Recovery of unlicensed pistol (P-1) only renders corroboration before learned trial judge for the offence of murder. The recovery of pistol (P-1) on the pointing out of the petitioner since constituted an independent offence for which the petitioner was separately charged and after recording separate evidence by a different competent court to try it, he was convicted and sentenced vide impugned judgment. His appeal was also dealt with by two different forums i.e. Sessions Judge and High Court. Even, keeping in view the Articles 54 to 56 of the Qanun-e-Shahadat Order, 1984, the evidence recorded in murder case i.e. in Sessions Court neither could have been considered in the instant case, so, Revisional Court despite having power to call for record of any proceedings before any inferior criminal court situated within the local limits of its jurisdiction for the purpose of satisfying itself as to the correctness, legality and propriety of any finding, sentence or order passed. The judgment of acquittal dated 04.03.2019 passed in murder case even otherwise is not part of the record of the case pertaining to the case under section 13/20/65 of the Arms Ordinance, therefore, contention of the learned counsel for the petitioner is hereby repelled. I have also gone through the contents of Para No.11 of the judgment passed in murder case which apart from the above noted reasons being alien to the record of the instant case, even otherwise, is not helpful to the case of the petitioner because recovery of weapon of offence has not been disbelieved. Apart from the above noted arguments of learned counsel for the petitioner, I have gone through the record of the case and this court has found no fault in findings of conviction recorded by the learned court below.
12 The corollary of the above discussion is that conviction and sentence of the petitioner recorded by learned trial court vide impugned judgment dated 11.01.2018 and upheld by learned Addl. Sessions Judge, Vehari vide judgment dated 04.09.2018, is maintained and resultantly instant criminal revision petition having no force is dismissed.
JK/M-131/L Revision dismissed.