ABDUL GHANI vs THE STATE
This criminal appeal challenges the conviction of the appellant under section 13(e) of the Arms Ordinance for the possession of a Kalashnikov, magazine, and ammunition. The core legal questions were whether the prosecution successfully proved the recovery of the weapon beyond reasonable doubt, given that it was recovered from an open area, and whether the procedural requirements for such recovery were met. The Sindh High Court held that the prosecution failed to prove its case because the recovery site was an open place not in the exclusive possession of the appellant, the weapon was not sealed at the spot, no independent witnesses (mashirs) were associated with the recovery, and there was no evidence that the weapon was sent to a ballistic expert. Furthermore, the trial court failed to show the weapon to the appellant during his examination under section 342 of the Code of Criminal Procedure 1898. Consequently, the court set aside the conviction and acquitted the appellant, establishing that recovery from an open, non-exclusive place without independent corroboration and proper procedural handling is insufficient for conviction.
- Can a conviction for illegal possession of a weapon be sustained when the recovery is made from an open place not in the exclusive possession of the accused?
- Is the failure to associate independent witnesses (mashirs) during a recovery fatal to the prosecution's case?
- Does the failure to show the crime weapon to the accused during his examination under section 342 of the Code of Criminal Procedure 1898 vitiate the conviction?
- Section 13(e), Arms Ordinance 1965
- Section 103, Code of Criminal Procedure 1898
- Section 342, Code of Criminal Procedure 1898
' FAIZ MUHAMMAD QURESHI, J.---Appellant has been convicted for the offence under section 13(e) of Arms Ordinance by learned Special Judge (S.T.A.) Malir in Case No, 2 of 1999 and has been sentenced to undergo R.I. For three years vide judgment dated 25-5-2001 on the charge of having possession/control of kalashnikov with one magazine and five bullets which were recovered from an open place at Langeji Nadi during interrogation in Crime No,133 of 1999.
2. Mr. Mahmood A. Qureshi, Advocate for the appellant, has submitted that the recovery is not being proved by the independent Mashirs as required under section 103, Cr.P.C. He has further argued that the recovery is said to have taken place on the pointation of the aforenamed appellant from an open place viz. Langeji Nadi which is not in exclusive possession of The appellant. The kalashnikov was not sealed at the spot and finally has prayed for the acquittal of the appellant.
3. On the other hand Mr. Habib Ahmed, Assistant Advocate-General for the State, has opposed the acquittal of the appellant and has supported the impugned judgment.
4. We have heard both the learned counsel for the parties and have gone through the material available on record and evidence adduced any the prosecution.
5. Admittedly the place of recovery is an open place and cannot be said that it was a place exclusively in possession of the appellant; kalashnikov has not been sealed at the spot there is no entry number through which the police party has left the police station alongwith accused to the pointed place where the recovery is said to have been effected; there is no evidence with the prosecution proving that the crime weapon has been sent to the ballistic expert; no independent mashir has been associated on the factum of recovery. Reliance can be made to cases reported in 1996 PCr.LJ 1410, 1997. MLD 1632, 1998 PCr.LJ 1368.
6. Statement of accused/appellant has been examined by us and nowhere it appears that the crime weapon has been shown to the appellant/accused during his statement under section 342, Cr.P.C. Learned Trial Court has not taken the defence evidence into consideration adduced by the appellant before the learned trial Court.
7. Upshot of the above discussion is that we-are of the considered view that the prosecution has failed to prove its case beyond reasonable doubt. We give him benefit of doubt. The conviction and sentence awarded to the appellant set aside. In result appeal is allowed. Appellant shall be released forthwith if not required in any other crime.
8. Above are the reasons of our short order, dated 4-10-2001.
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