2003 P Cr (PLP)

Representation

• ----S. 13-D---Appreciation of evidence---Both prosecution .witnesses who were police officials were independent and natural witnesses as they left police station concerned in connection with the investigation of a crime-- No enmity existed between accused and said police officials---No motive or any cause was present with prosecution witnesses to falsely implicate accused---Both prosecution witnesses were cross-examined by accused, but except denial of involvement of accused in the case no other question was put to the said witnesses---Evidence of both prosecution witnesses in circumstances went unchallenged---Evidence of both prosecution witnesses which was natural and trustworthy, had rightly been relied upon by Trial Court---Accused had contended that he was not represented by any counsel before Trial Court as he could not engage an Advocate-- Accused had himself furnished explanation for not engaging, the Advocate---Even otherwise sufficient time was given to accused to engage Advocate, but he did not avail the said opportunity---For default of accused, prosecution could not be blamed---No major discrepancies or infirmities were found - in evidence of prosecution, except two discrepancies, one was non-production of entries in Roznamcha about departure of police from police station and second was non-sealing of property at spot---Entire evidence of prosecution could not be brushed aside solely on said two minor discrepancies particularly when statements of prosecution witnesses went unchallenged----Even otherwise sealing of property at Wardat was essential when crime weapon was used in commission of crime and from scene of offence empties were recover6d in order to connect weapon with empties, but in the present case no evidence existed that weapon secured from possession of accused was used in commission of any crime---Non-sealing of property, in circumstances was not the requirement of law---Mere possession of unlicensed arms and ammunition was an offence covered by Ss.13-D & 13-E of West Pakistan Arms Ordinance, 1965 under which it was not necessary that weapon should be in working condition---Objection that weapon secured from accused was not sent, to Ballistic Expert, had no force at, all---Contention was that provisions of S.103, Cr.P.C. had not been complied with as private persons were not associated in search proceedings---Provisions of S.103, Cr.P.C. were applicable when search was made in respect of a house but in the present case no search of house was involved as accused was apprehended near road where weapon was secured from him---Minor contradictions in evidence could be overlooked in circumstances of case---Prosecution having proved its case against accused beyond any shadow of doubt, accused was rightly convicted and sentenced by Trial Court.
• Ali Azhar Tunio, Assistant Advocate-General for the State.
• I have heard the Advocate for the appellant, Assistant Advocate General for the State and perused the evidence with their assistance.
• Learned Advocate for the appellant has stated that the accused was unrepresented before the trial Court as he could not engage an Advocate; that Roznamcha entry under which the police had left the police station was not produced in the evidence; that the K.K. was not sealed at the spot; that the K.K.. was not sent to the Ballistic Expert for examination and report; that no private persons have been made as witnesses in this case by the police and that there is material contradiction in respect of holding K.K. by the appellant in the evidence of the witnesses therefore, the case of the present appellant is doubtful and prayed for his acquittal. In support of his contentions, learned Advocate for the appellant has relied upon cases of Abdul Sattar v. The State 2002 PCr.LJ 51 and Ashiq Ali v. .The State 2002 PCr.LJ 450.
• On the other hand, learned Assistant Advocate-General has stated that the case was challaned in the month of may, 2002 which was disposed of in the month of September, 2002, therefore, the appellant had sufficient time to engage an Advocate but he did not avail the said opportunity, as such for the fault of the appellant the prosecution cannot be blamed. He has further argued that the statement of the witnesses with regard to the leaving of the police station under the entry of the Roznamcha has not been challenged by the appellant; that it was not necessary to seal the crime weapon as the same was not used in any, crime; that it was also not necessary to send it to the Ballistic Expert for examination and report; that the personal search of the accused was conducted near Link Road therefore, provisions of section 103 are not applicable. He has relied upon a case of State v. Muhammad Ameen 1999 SCMR 1367. Lastly, he contended that the contradiction pointed out by the learned defence counsel is not major therefore, it can be overlooked.
• As regard the submission of the learned Advocate for the appellant that the accused was not represented by any counsel before the trial Court as he could not engage the Advocate. The appellant himself furnished explanation for not engaging an Advocate. Sufficient time was given to the appellant to engage an Advocate but he did not avail the said opportunity as such for the default of the appellant, the prosecution
• As regards the non-production of the entries in the Roznamcha about the departure of the police from the police station and non-sealing of the property , at the spot, the learned Advocate for the appellant has relied upon the cases of Abdul Sattar and Ashiq Ali (supra). In both the authorities apart from the above two discrepancies, there were other discrepancies in- the evidence. After considering all the material facts or the cases and other discrepancies jointly, it was observed that the non production of Roznamcha and non-sealing of the property at the Wardat (alongwith all the other discrepancies) created doubt in the prosecution case. In the present case there are no discrepancies or infirmities in the evidence of the prosecution except the above two discrepancies therefore. solely on the above mentioned discrepancies, the entire evidence of the prosecution cannot be brushed aside particularly when the statements of the witnesses went unchallenged. Furthermore, it is pointed out that the sealing of the property at the Wardat is essential when the crime weapon is used in the commission of a crime and from the scene of offence empties are recovered, in order to connect the weapon with the empties, so as to prove that it was the same weapon which was used in the commission of the crime. In the present case there is no allegation or evidence that K.K. was used in the commission of any crime or emptiest were secured from the place of such incident so as to connect the K.K. with the said empties. It is pertinent to point out that under sections a and . 9 of Arms Ordinance mere possession of unlicensed arms and ammunition, by itself is an offence punishable under section 13(d) and (e) of the Arms-Ordinance. Under the present circumstances of the case non sealing of the property is not the requirement of law therefore, it, is not necessary to seal the same at- the place of recovery.
• As regards the contradiction in the evidence, learned Advocate for the appellant has pointed out that the complainant stated that the K.K. was in the hand of the appellant whereas Mashir stated that it was on the shoulder of appellant. This type of contradiction usually occurs in the evidence. It has not affected the prosecution story in any manner as the fact remains that K.K. was secured from the possession of the appellant either he was holding it in his hand or having it on his shoulder but it was the appellant who was carrying the same and the same was secured from hip possession. This contradiction is minor in nature which can be overlooked in the present circumstances of the case.

Headnotes / Summary

Judgment & Decree