ABDUL SATTAR and others vs THE STATE

1. ' MUHAMMAD MOOSA K. LEGHARI, J.--- Since the points of law as well as the facts involved in all these appeals are similar, we intend to dispose of the same by a common order.

2. ' Facts of each appeal are precisely narrated as under:-- ' Criminal Appeal No,257 of 1996 ' This appeal arises out of the judgment, dated 19-9-1996 passed by the learned Judge, Special Court No,I (S.T.A.) in Special Case No,116 of 1991 arising out of Crime No,47 of 1991, Police Station Pinyari under section 13-E, Arms Ordinance whereby the appellant was convicted and sentenced to undergo R.I. For six years and to pay fine of Rs,10,000 or in default to further undergo R.I. For one year. However, the benefit under section 382-B, Cr.P.C. Was extended to the appellant/accused.

3. ' The allegations in the F.I.R. Are that on 14-8-1991 while the accused was in custody of Police Station Pinyari in Crime No,47 of 1991 under sections 121, 121-A, P.P.C. He voluntarily led the police and produced one unlicensed Kalashnikov alongwith its ammunitions which was recovered from the house of the appellant loaded with magazine and 22 live rounds concealed in clothes in his room.

4. ' Charge was framed on 18-8-1992 to which the appellant pleaded not guilty and claimed to be tried. Prosecution examined two witnesses namely, H.C. Abdul Jabbar Khoso vide Exh.4 and Inspector Muhammad Ashraf Gujjar vide Exh.5. The accused in his statement recorded under section 342, Cr.P.C. Denied the production of unlicensed K.K. And its ammunition, further alleging that he was falsely implicated in the case.

5. ' Learned trial Court found the appellant guilty of the charges alleged against him, and convicted him accordingly.

6. ' Criminal Appeal No,316 of 1996 ' This appeal has been filed against the judgment, dated 30-11-1996 passed by the learned Judge, Special Court No,I (S.T.A.), Hyderabad in Special Case No,101 of 1995 (State v. Muhammad Rahim alias Maman) in Crime No,65 of 1995, Police Station Tando Jam registered under section 13-D, Arms Ordinance whereby the appellant was convicted and sentenced to suffer R.I. For 4 years and to pay a fine of Rs,1,000 or in default to suffer R.I. For six months more. The appellant in this case was granted benefit under section 382-B, Cr.P.C.

7. ' The prosecution story, in brief, is that on receipt of spy information about the presence of gang of dacoits, S.H.O. Police Station, Tando Jam collected police and alongwith police party proceeded towards the hide out of the dacoits vide Entry No,17, dated 19-7-1995. The police party after tracking the foot prints, when reached, at the place of Wardat exchange of firing took place between the police and the dacoits and the police succeeded in apprehending two culprits on the spot which included the present appellant. He was found to be armed with a K.K. Accordingly, he was arrested and one K.K. With a magazine and 20 live rounds were recovered from his possession, apart from other ammunition recovered from other accomplices. An F.I.R. Was lodged and the case was sent up for trial.

8. ' A formal charge under section 13-D, Arms Ordinance was framed against the appellant to which he pleaded not guilty and claimed to be tried. At the trial, the prosecution examined complainant Allah Bachayo Exh.4, Hussain Bux, Exh.5 and closed its side vide Exh.6. The appellant in his statement under section 342, Cr.P.C. Denied the allegations and alleged that he was falsely implicated. He also examined himself on' oath. However, no defence witness was examined.

9. ' After the conclusion of trial, the appellant was found guilty, and accordingly convicted in the terms as mentioned above.

10. ' Criminal Appeal No,140 of 1996 ' This appeal has been preferred to challenge the judgment, dated 6-5-1996 passed by the learned Judge, Special Court (S.T.A.) -No,I, Hyderabad in Special Case No,58 of 1995 (State v. Muhammad Shahid) in Crime No,39 of 1995 registered at Police Station Pinyari, Hyderabad under section 13-D, Arms Ordinance whereby the appellant was convicted and sentenced to suffer R.I. For 4 years and to pay a fine of Rs,4,000 or in default to suffer R.I. For six months more. Though the appellant had served out the sentence, yet the learned counsel argued the case and prayed for passing the judgment on merits.

11. ' The facts, in brief, are that on 4-6-1995 while on patrolling, A.S.-I. Nasir Khan of Police Station Pinyari, Hyderabad on receipt of spy information about a person having fire-arm, reached at Mirza Phatak, Hyderabad alongwith subordinate staff. On seeing police party, one person started running but was captured who subsequently disclosed his name as Shahid -i,e, the appellant herein. On personal search one T.T. Pistol of .30 bore loaded with empty magazine was recovered from his possession for which he failed to produce valid licence, as such memos. Of arrest, recovery and seizure were prepared and the accused/appellant was booked for the offence under section 13-D, Arms Ordinance.

12. ' On 29-6-1995 a, formal charge was framed to which the accused/appellant pleaded not guilty and claimed to be tried. During the trial, prosecution examined P.Ws. A.S.-I. Nasir Khan Exh.4, and P.C. Ghulam Muhammad Bhutto Exh.8 and closed its side vide Exh.8. The appellant in his statement under section 342, Cr.P.C. Denied the allegations and stated that he was arrested from his house and was wrongfully confined by the police and that he has been involved in the present case by the police in order to shield their own guilt of wrongful confinement. He also examined himself on oath and also produced two witnesses in defence vide Exhs.11 and 12.

13. ' Learned trial Court, after evaluating the evidence on record, gave findings in affirmative, and convicted the appellant in the terms narrated above.

14. ' Criminal Appeal No,181 of 1996 ' The appellant has called in question the judgment, dated 3-7-1996 passed by the learned Judge, Special Court (S.T.A.) No,I, Hyderabad in Special Case No,230 of 1995 (State v. Mansoor Ahmed) in Crime No,109 of 1995, Police Station Cantonment, Hyderabad registered under section 13-D, Arms Ordinance whereby the appellant was convicted and sentenced to suffer R.I. For 4 years and to pay a fine of Rs,4,000 or in default to suffer R.I. For six months more. He was, however, granted benefit of section 382-B, Cr.P.C.

15. ' Though the appellant has served out the sentence, yet the learned counsel argued the matter and prayed for passing a judgment on merits.

16. ' The facts narrated in the F.I.R. Are that on 29-11-1995 while S.I.P. Muhammad Shafique of Police Station Cantonment, Hyderabad was on patrol duty of the area, he received spy information that a suspected person was present near State Bank Building. Accordingly the complainant alongwith his subordinate staff reached there and apprehended the appellant who disclosed his name as Mansoor. On personal search one T.T. Pistol of .30 bore loaded with magazine containing four live bullets was recovered from his possession. On his failure to produce valid licence for the weapon, memo. Of arrest, recovery and seizure were prepared and the accused/appellant was booked for the offence under section 13-D, Arms Ordinance.

17. ' On 4-1-1996 a formal charge was framed to which the accused/appellant pleaded not guilty and claimed to be tried. During the trial, prosecution examined P.Ws. S.I.P. Muhammad Shafique Rajput Exh.4 and A.S.-I. Saeed Ahmed Khan Exh.5 and the learned S.P.P. Closed prosecution side vide Exh.6.

18. The appellant in his statement under section 342, Cr.P.C. Denied the prosecution allegations. He also examined himself on oath and also produced two witnesses in defence vide Exhs.10 and 11.

19. ' Learned trial Court, on conclusion of the trial convicted the appellant in terms of the impugned judgment.

20. ' Criminal Appeal No,3 of 2000 ' This appeal has been filed against the judgment, dated 11-1-2000 passed by the learned Judge, Special Court (S.T.A.), Dadu in Special Case No,9 of 1997 (State v. Allandino son of Allah Jurio) arising out of Crime No,10 of 1996. Police Station Khanooth registered under section 13-D, Arms Ordinance whereby the appellant was convicted and sentenced to suffer R.I. For seven years.

21. ' The facts of the case, according to the F.I.R. Are that on 25-7-1996 at 7-00 p.m. S.I.P. Ghulam Murtaza Meerani alongwith subordinate staff arranged patrolling and Nakabandi at Railway crossing and the link road towards Pumping Station and River Indus. At about 8-30 they saw one person armed with kalashnikov coming from river side who on seeing police party, tried to slip away but was apprehended. Police secured the unlicensed kalashnikov which was loaded with 30 bullets. On enquiry he disclosed his name as Allandino i,e, the present appellant. Thereafter, Mashirnama of arrest was prepared and a case under section 13-D, Arms Ordinance was registered against the appellant.

22. ' A formal charge Exh.2 was framed against the accused/ appellant to which he pleaded not guilty and claimed to be tried. During the trial, prosecution examined P.Ws. S.I.P. Ghulam Murtaza Meerani Exh.5 and A.S.-I. Rasul Bux Exh.6 and thereafter learned S.P.P. Closed prosecution side vide Exh.7. The appellant in his statement under section 342, Cr.P.C. Denied the prosecution allegations.

2. We have heard learned counsel appearing for the appellants and the learned A.A.-G. For the State. The R&Ps of the learned trial Court have been perused and the paper books have been examined.

3. Admittedly, in neither of the cases in hand Roznamcha entry was produced by the prosecution in order to prove that the police, in fact, proceeded to the place of scene to recover the alleged weapons. This lapse on the part of prosecution has cut the root of the case of prosecution, thus, rendering the entire episode shrouded by doubt. This fact by itself was enough to disbelieve the prosecution version. Reference can be made to the case of Fareed Ahmed Langra v. The State reported in 1998 PCr.LJ '1368 and another Division Bench judgment in Qalandaro's base reported in 1997 M LD 1632.

4. It is also an admitted fact borne out from the record that the weapons allegedly recovered from the appellants were neither sealed on the spot nor the same were sent to the Ballistic/Forensic Expert.

23. ' It is well-settled proposition of law that conviction under section 13-D of Arms Ordinance could not be maintained unless the weapons allegedly recovered were sealed at the spot and the opinion of Forensic/Ballistic Expert is produced on record to prove that the weapons so recovered were, in fact, functional and that the said weapons fell within the category of weapons exclusively triable by the Special Court, S.T.A. Reference may be made to case-law reported as Loung through Superintendent Central Prison, Hyderabad v. The State 1999 PCr.LJ 595 and Sajjan v. The State 1998 PCr.LJ 1399.

5. Besides that in all the cases, the appellants were not confronted with , the crime weapons while recording their statements under section 342, Cr.P.C. No question was put to them as to whether they possessed licences of the weapons. It is settled principle of law that every incriminating piece of evidence is to be brought to the notice of the accused and unless he is confronted with the material available in evidence against him, the conviction cannot be sustained.

6. It is undisputed fact that Mashirs of recovery in all the cases are police personnel. No private person was associated to witness the alleged recovery of the weapons. There is no explanation whatsoever in this respect. Even the record does not reveal, as to whether any efforts were made to persuade any person from the locality or for that matter the public to act as witness of recovery, thus, there was a flagrant violation of the provisions of section 103, Cr.P.C. This fact, thus, rendered the alleged recovery of weapon extremely doubtful. A Division Bench of this Court in the case of Abdul Mujeeb v. The State 1998 PCr.LJ 1381 observed as under:-- "Absence of private Mashirs violates the provisions of section 103, Cr.P.C. Especially in view of the fact that no effort has been made to join the members of the public so as to comply with the mandatory provisions of section 103, Cr.P.C. Keeping in view the fact that nothing has come on record to show that effort in such direction of having private Mashirs was made, hence it would become difficult to uphold the impugned judgment."

24. ' Reference can also be made to the case-law reported in Abdul Wadood v. The State 2001 PCr.LJ 173.

7. For the reasons stated above, we are of the firm view that the conviction recorded in the above cases cannot be sustained. The Appeals Nos.257 of 1996, 316 of 1996, 140 of 1996, 161 of 1996 and 3 of 2000 are, therefore, allowed and the judgments are set aside.

25. ' These are the reasons for the short orders passed in these appeals.