2013 PLP 116 (SCMR)

TASSADUQ HUSSAIN JILLANI, J.

Petitioners are facing trial in the case registered vide F.I.R. No. 139 of 2010 under sections 353, 186, 109, P.P.C. read with section 7 of the Anti-Terrorism Act and sections 3, 13-d, 16/20 of Arms Ordinance, 1965 at P.S. Airport, Quetta, wherein it is alleged that on the fateful day and time, on a source report, a picket (comprising of police and officers of Frontier Constabulary) was formed which intercepted a convoy of vehicles and on the search made a huge quantity of arms and ammunition was recovered from those vehicles, a detailed list of which is given in the F.I.R. It was alleged that the arms and ammunition in question were being taken inside the Quetta city to be used for causing terror, harassment and fear. Separate challans were submitted against each accused.

2. During examination of one of the prosecution witnesses namely P.W.4 Anwar Sattar, SI Police Station Airport, the prosecution wanted to produce the recovered arms, ammunition and vehicles as case property which was objected to by the defense, the objection was sustained and prayer of the prosecution to produce the above-mentioned material was declined vide order dated 11-6-2012.

3. On account of separate challans, the prosecution filed criminal revisions in each challan case which have been allowed by the learned High Court of Balochistan vide a consolidated judgment, inter alia, on the ground that F.I.R. itself indicated that the physical possession of recovered arms, ammunition and vehicles was taken by the Frontier Constabulary authorities and only a list of those articles was handed over to the police; that the question of application of section 103, Cr.P.C., in the facts and circumstances of this case, would be determined by the trial Court at appropriate stage and that the trial Court had already allowed the prosecution to produce the said case property vide order dated 5th and 7th of June, 2012.

4. Learned counsel for the petitioners seeks leave on the ground that learned High Court did not appreciate that the list of arms, ammunition and vehicles provided by the FC to the police could not be treated as recovery memos; that the afore-mentioned articles could not be treated as case property as those were neither recovered by the police nor remained in its possession; that the manner of recovery was violative of the mandatory provision of section 103 of Cr.P.C. and that the observation made in the impugned judgment is likely to seriously prejudice the case of the defence during trial.

5. Having argued the case at some length, learned counsel for the petitioners, towards the end, submitted that he would be satisfied if this petition is partly allowed and the observations made in the impugned judgment which are likely to prejudice petitioners' case during trial are expunged.

6. Learned Additional Prosecutor-General though defended the impugned judgment but in all fairness added that he has no objection if this petition is partly allowed and the observations made in the impugned judgment which are likely to prejudice petitioners' case during trial are expunged.

7. Heard.

8. We have gone through the F.I.R. registered in the instant case (F.I.R. No.139 of 2010) and find that a huge quantity of arms and ammunition was allegedly recovered from the vehicles which the petitioners were either driving or were on board. It is also mentioned in the F.I.R. that it was Frontier Constabulary which took possession of the recovered arms and ammunition and only a list of those articles was handed over to the police. It is further given in the F.I.R. that it was a joint team which intercepted the convoy of several vehicles from which the arms and ammunition in question were recovered. In the afore-referred circumstances, the possession of arms, ammunition and vehicles by Frontier Constabulary is understandable. The question as to its legal effect or whether the provisions of section 103, Cr.P.C. were applicable or not would be a moot point to be decided by the learned trial Court. However, the prosecution could not be deprived of its right to produce arms, ammunition and vehicles which according to it were case property and had been recovered from petitioners at the time they were intercepted. The impugned judgment to the said extent is therefore, unexceptionable. However, in view of the fair stand taken by petitioners' learned counsel as also the learned Law Officer, this petition is converted into an appeal and partly allowed, the impugned judgment insofar as it allowed the prosecution to produce arms, ammunition and other articles is upheld. It would be open for the petitioners to raise all pleas available to them under the law and learned trial Court shall proceed with the trial uninfluenced by any observation made on the merits of the case in the impugned judgment, which is likely to prejudice the case of either side. Disposed of. MWA/S-23/SC Order accordingly.