KHUDAI RAHIM vs The STATE
The petitioner sought leave to appeal against the judgment of the High Court of Baluchistan, which dismissed his appeal against conviction and sentence under Section 13-E of the Arms Ordinance, 1965, for illegal possession of a prohibited bore weapon. The core legal questions involved whether a 7.62 M.M. rifle falls within the prohibited bore category and whether police testimony alone, without public witnesses, is sufficient to prove recovery in emergent circumstances. The Supreme Court held that the 7.62 M.M. calibre is not excluded from the prohibited bore under the applicable government notification, and that the absence of public witnesses does not invalidate the recovery when the police acted promptly in an emergent situation. Furthermore, the Court held that releasing a first offender on probation or parole is discretionary and its denial is not illegal unless perverse. Consequently, the petition for leave to appeal was refused, laying down principles regarding weapon classification under arms laws and the evaluation of police evidence during emergent recoveries.
- Whether 7.62 M.M. calibre rifles fall within the category of prohibited bore arms under the Arms Ordinance?
- Is police evidence alone sufficient to prove the recovery of an illicit weapon when public witnesses are unavailable due to emergent circumstances?
- Whether the denial of probation or parole to a first offender constitutes a perversity or illegality warranting interference by the Supreme Court?
- Section 13-E, Arms Ordinance 1965
- Section 336, Pakistan Penal Code 1860
SHAFIUR RAHMAN, J.---The petitioner a convict under section 13-E of the Arms Ordinance, seeks leave to appeal against the judgment of the High Court of Baluchistan, Quetta, dated 15-5-1990, whereby his appeal against conviction and sentence was dismissed.
2. At about mid-night. On 2-8-1988, there was heard noise of firing from Killi Shadi Khan, whereupon the S.H.O. Mr. Farooq Jafar (P.W. 1) alongwith police strength went there and found the petitioner in possession of a China made rifle of 7.62 M.M. Calibre alongwith 10 live cartridges and four empties lying on `the ground. As the petitioner held no licence for it, he was proceeded under separately for offence under section 336, P.P.C. And under section 13-E of the Arms Ordinance, 1965. The petitioner in his statement in his defence stated that he was asleep in his house when he was called at the Police Station and confronted with the weapons whose possession or ownership he denied. He produced two witnesses in defence in support of his plea.
3. The trial Court on the basis of the evidence produced before it, found the recovery of the weapon proved and sentenced him to three years' R.I. Which was the minimum prescribed by law for a prohibited bore weapon. The High Court by the impugned judgment rejected the appeal.
4. Mr. S.A.M. Quadri, the learned Advocate-on-Record for the petitioner at the first took the plea that the two Courts were in error in treating the weapon, allegedly recovered, to be a prohibited bore and referred to a notification of the Government of Baluchistan, dated 26-6-1986, but we find that 7.62 M.M. Is not excluded from the prohibited bore as would appear from the following recital in that notification:--- "The Federal Government in the Ministry of Interior have specified the following description, calibre and bore of arms and amunition as prohibited bore:--
(1) All machine guns and light machine guns.
(2) All self-loading and auto rifles, excluding the following:-- .22 in bore 7.7 M.M. Calibre 7.9 M.M. Calibre 7.92 M.M. Calibre .3006 in bore."
5. The other contention of the learned counsel was that as only witnesses of the Police had appeared in support of the recovery, the evidence should be considered insufficient for proving the case. He has also in support referred to a decision of this Court in Dost Muhammad v. The State 1986 SCMR 462. In the case in hand it was actually the report of the shots fired which attracted the S.H.O. And in that emergent situation he could not have possibly associated witnesses of the public in the recovery. The case referred to is distinguishable because in that case public witnesses were available, had been associated but were not produced at the trial, and the identity of the weapon of offence was also in doubt.
6. Finally, the learned counsel contended that the petitioner was a first offender and his application for being released on parole/probation merited consideration and acceptance. We find this was discretionary with the Court and it cannot be said that in the existing circumstances denial of such a concession was, in any way, perverse or illegal.
No ground is made out for leave to appeal and the same is refused.
Cited by 2 cases
- KHUSHI MASIH vs THE STATE 1996 P Cr. L J 1787
- MUHAMMAD KHAN vs THE STATE 1994 SCMR 1543