P L D 2011 Quetta 18 (PLP)

GHULAM MUSTAFA MENGAL, J.

This Criminal appeal under section 410, Cr.P.C. has been directed against the judgment dated 26-5-2010 passed by Special Judge, Anti Terrorism Court-II, Quetta, whereby appellant has been found guilty under section 9 and section 13-E of Pakistan Arms Ordinance and sentenced to three years R.I. with fine of Rs.10,000 and in default to further suffer 20 day's S.I. with benefit of section 382-B, Cr.P.C. Briefly stated, the facts of the prosecution case are that on 1842-2009 at about 6-30 p.m. in between Kamal-II and Salahuddin pickets accused was apprehended by F.C. personals and from possession of accused/appellant one T.T. Pistol of .30 bore, 3 Hand-grenades with one device, one detonator along with remote wire, two packet explosive material (8/1/2 k.g.) a Nokia Mobile along with Afghani Sim No.1100, one purse containing Rs.518 Pakistani Currency and 80 Afghani Currency were recovered. Upon registration of ease under sections 3-4, Explosive Substances Act read with section 'i3-E, Arms Ordinance, and 7-A.T.A. 1997; investigation was conducted by P.W.4. Muhammad Yaqoob, I.P. and challaned the appellant to face his trial. At the trial charge was framed under sections 3-4 of Explosive Substances Act and section 13-E, Arms Ordinance on 13-2-2010, to which appellant did not plead guilty and claimed for trial. At the trial prosecution examined P.W.1., Anar Badsha, Naib Subedar, who was co-mashir of the recovery memo; Exh.P/1-A, and seizer of Pistol Article, P/1-A and 5 rounds article, Article P/1-B, Rs.518 Pakistani Currency Article P/1-C, 80 Afghani Currency, Article F/1-D and a Purse containing Pakistani and Afghani Currency Article P/1 respectively. P.W.2. Hawaldar Mureed Abbas, witness to the recovery memo; Exh. P/1-A. P.W.3., Major Farrukh Mirza, was the complainant, who produced Murasla, Exh. P/3-A. P.W.4., Muhammad Yaqoob, I.P, who conducted formal Investigation. He produced F.I.R as ExIi.P14-A, sketch of the place of arrest of accused, Exh.P/4-B and Challan, Exh.P/4-C, Exh.P/4-D and delivery certificate, Exh.P/4-E. After close of prosecution side, statement of the appellant was recorded under section 342, Cr.P.C. wherein he denied the allegation levelled against him. He produced D.W-1, Abdul Wali and D.W.2. Muhammad Gul in his defence. The learned trial Court concluded the proceedings by means of judgment dated 26-5-2010, whereby the appellant has been convicted and sentenced in the aforementioned terms. The appellant being aggrieved by the impugned judgment preferred this appeal. Mr. Mujeed Ahmad Hashmi, learned counsel for the appellant has mainly contended that neither recovered weapon was sealed at the spot nor the same was sent to the Ballistic Expert for his opinion as to whether it was in working condition or not. On the other hand Mr. Sardar Ahmad Haleemi, learned Special Prosecutor, A.T.A. supported the impugned judgment and argued that the charge framed against the appellant contains the allegation about recovery of unlicensed T.T. Pistol from the possession of appellant, as defined under section 13-E of Arms Ordinance, therefore, mere non-sealing and non-sending of Pistol to Expert is an irregularity and omission on the part of Investigating Officer, is not fatal to the prosecution case. I have heard the learned counsel for the parties and have gone the record. As regards the contention of the learned counsel for the appellant, it is pointed out that the recovered Pistol was not required in any other case so that it could have been sealed at the spot. No question has been suggested to the witnesses by the defence counsel that the pistol produced in Court was not in working condition. In the instant case the recovery of Pistol has been denied, therefore, the contention so raised by the learned counsel that the Pistol was neither sealed at the spot nor it was in working condition has no force. Sections 8 and 9 of the West Pakistan Arms Ordinance, 1965 reads as under:-- (8) Prohibition Of Going Armed Without Licence.

(1) No person shall go armed with any arms except under a licence and to the extent and in the manner permitted thereby. (2) Any person so going armed without a licence or in contravention of its provisions may be disarmed by any Magistrate, Police Officer or other person empowered by Government in this behalf by name or by virtue of his office. (3) Nothing in subsections (1) and (2) shall apply to a person carrying arms under a written authority issued in accordance with the rules. (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 3 (1) (a) defines the definition of word ammunition; as under:-- (a) "ammunition: includes (i) ammunition of all types for light and heavy automatic weapons, revolvers, pistols, rifles, carbines, muskets and shot-guns; (ii) ammunition constructed and modified for firing projectiles or gas or smoke containers; (iii) gun wads, gun fints, percussion caps, fuses, friction tubes and detonators; (iv) all types of grenades, bombs, rockets, mines and fuels for flame throwers; (v) all types of explosives, fulminating material and propellants, including all articles specially designed for torpedo operation and depth charges; (vi) all parts of ammunition, but does not including lead, sulphur or saltpeter; The plain reading of definition of above sections, show that weapon which requires licence can not be kept in possession, even if it is not in working condition, as such, non-sending of Pistol to Expert for opinion is an omission on the part of Investigating Officer and is not fatal to the prosecution case. For what has been discussed above, I found no illegality or infirmity in the impugned judgment, warranting interference by this Court. The appeal filed by appellant is dismissed and impugned judgment is maintained. H.B.T./8/Q Appeal dismissed.