2012 PLP 200 (YLR)

MUHAMMAD HASHIM KHAN KAKAR, J.

Appellant Abdul Wahid has challenged the judgment dated 28th February, 2009, passed by Sessions Judge, Khuzdar, whereby he was found guilty of the offence and sentenced to suffer three and half (3-1/2) years' RI under section 13(e) of the Pakistan Arms Ordinance, 1965 and also directed to pay a fine of Rs.5,000 (rupees five thousand only) or in default thereof to further undergo SI for three (03) months, with the benefit of section 382-B of the Cr.P.C.

2. On 14th August, 2007, complainant Nisar Ahmed lodged an F.I.R. No.19 of 2007, under section 13(e) of the Pakistan Arms Ordinance, 1965, against the appellant at Police Station Nall, District Khuzdar, with the allegation that at the time of arrest of the appellant in connected case vide Crime No.18 of 2007, under section 302 read with sections 109 and 34 of the P.P.C., an unlicensed Kalashni-kov, close butt, China made bearing No.56-16136722, Bolt No.36722, body No.70745, along with 15 live rounds was recovered beneath the bed from the house of the appellant and, consequently, the aforesaid F.I.R. was registered against him.

3. The investigation of the case was carried out by P.W.4 Inayatullah, S.I., who after completion of the investigation, submitted challan before the trial Court.

4. On the stated allegation, a formal charge was framed and read over to the appellant, to which he did not plead guilty and claimed to be innocent. Thereafter, the prosecution examined P.W.1 Nisar Ahmed IP/S.H.O., as complainant of the case, who produced his murasila Exh.P/1-A, P.W.2 Mubarak, constable, and P.W.3 Muhammad Islam are recovery witnesses of unlicensed Kalashnikov along with 15 live rounds from the house of the appellant and produced the recovery memos Exh.P/2-A and Exh.P/3-A. P.W.1 Inayatullah, S.I., is the Investigating Officer of the case. Thereafter the prosecution has closed its side.

5. The appellant was examined under section 342 of the Cr.P.C. He also recorded his statement on oath under section 340(2) of the Cr.P.C, wherein he denied the prosecution allegations and took the plea of false implication. The trial Court, after hearing learned counsel for the parties, convicted and sentenced the appellant, as stated above.

6. We have heard learned counsel for the appellant as well as learned counsel for the State and have gone through the record with their valuable assistance. It has been argued by learned counsel for the appellant that the prosecution had failed to prove its case against the appellant beyond reasonable doubt and, thus, this appeal warrants acceptance with a resultant acquittal of the appellant. On the contrary, learned counsel for the State has maintained that the prosecution had succeeded in proving the guilt of the appellant to the hilt therefore, the present appeal deserves dismissal.

7. We have considered the contention put forth by the parties counsel and have gone through the entire material and evidence available on record. The record indicates that the recovery of alleged unlicensed Kalashnikov, along with 15 live rounds, was effected on arrest of the appellant along with co-accused Saeed Khan, Abdul Nabi and Abdul Hakeem in connected case Crime No.18 of 2007 under section 302 read with sections 109 and 34 of the P.P.C. The bare perusal of the prosecution evidence shows that there are contradictions, discrepancies and lacunas, on the basis whereof, no conviction could be recorded. The alleged recovery of arms and ammunition has been disbelieved by this Court in connected case Crime No.18 of 2007, as there were glaring contradictions amongst the statements of P.Ws. Moreover, the alleged recovery of Kalashnikov has not been effected from the actual possession and control of the appellant, rather it was, allegedly, effected from a joint house, where the appellant, along with his brothers (co-accused in connected Crime No.18 of 2007), was residing. To constitute "possession" within the meaning of section 13(e) of the Pakistan Arms Ordinance, 1965, it must be interpreted in its broadest sense, and apart from physical possession, it must also mean the ownership of and control over, the alleged recovered arms and ammunition the word "possession" is a word of wide import and is not free from ambiguity. This is because the meaning of possession must depend upon the context in which the word is used. The mental element is an essential element of possession in criminal statutes.

8. Furthermore, the mandatory provisions of section 103 of the Cr.P.C. had been violated in the present case, as alleged by the accused. The main object of compliance of section 103 of the Cr.P.C. is to ensure that recovery is effected honestly and fairly, so as to exclude the possibility of false implication and fabrication. Section 103 of the Cr.P.C. is not a decoration but designed to provide safeguard against police excesses, as such, the alleged recovery of Kalashnikov, without joining disinterested persons in spite of availability, is highly doubtful and no reliance can be placed upon it, especially when ulterior motives have been alleged by the appellant. In view of what has been stated above, the prosecution has failed to establish its case against the appellant beyond reasonable doubt, thus, the appeal is allowed, impugned judgment is set aside and the appellant is acquitted of the charge. He be set at liberty, if not required in any other case. H.B.T./148/Q Appeal allowed.