2017 PLP 1166 (YLR)

ZAHEER-UD-DIN KAKAR, J.

This criminal appeal is directed against the judgment dated 24.5.2016 ("the impugned judgment"), passed by the Sessions Judge, Jaffarabad at Dera Allah Yar ("the trial court"), in Arms Case No.04 of 2016, whereby the appellant Larik Mal son of Sughno Mal was convicted and sentenced in the following manner: Under section 13-e of Arms Ordinance, 1965 for R.I. Five years with fine of Rs.20,000/- (rupees twenty thousand only), in default whereof to further undergo for three months SI. Benefit of section 382-B, Cr.P.C. was also extended in favour of the appellant.

2. Precisely stated facts of the case are that on 07.01.2016, complainant SIP Abdullah, lodged FIR No.7 of 2016, under section 13-b of the Arms Ordinance, 1965 against the appellant at Police Station Dera Allah Yar district Jaffarabad, with the allegation that during course of investigation in connected case bearing Crime No.190 of 2015, registered under section 302-C, P.P.C., the appellant made disclosure and in consequence of such disclosure, on his pointation an unlicensed Kalashnikov along with an empty magazine, was recovered from the residential room of the house of Ambo Mal and, consequently, the aforesaid separate case was registered against him.

3. After registration of FIR Ex-P/3-A, investigation of the case was entrusted to PW-3 Muhammad Ali ASI, who proceeded to the place of occurrence, prepared recovery memo, recorded statements of witnesses, arrested the accused, conducted investigation and prepared challan Ex-P/3-B.

5. On the stated allegation, a formal charge was framed and read over to the appellant on 27.1.2016 to which he did not plead guilty and claimed trial. In order to prove its case, the prosecution examined following witnesses. PW-1 Atif Ali Constable, witness to recovery memo of Kalashnikov Ex-P/ 1-A. PW-2 Abdullah SI, complainant produced his murasila Ex-P/2-A. PW-3 Muhammad Ali ASI, investigation officer of the case.

6. The accused was examined under section 342, Cr.P.C., wherein he denied the prosecution allegation leveled against him and professed innocence. However, he did not opt to record his statement on oath as envisaged under section 340(2), Cr.P.C., nor led any evidence in defence.

7. On conclusion of the trial, the trial Court found the prosecution's case against the appellant to have been proved beyond reasonable doubt, thus, he was convicted and sentenced, as mentioned and detailed above vide judgment dated 24.5.2016.

8. Learned counsel for the appellant contended that the trial Court has erred in believing evidence of only prosecution witnesses, who all belong to the police department and no private witness was associated at the time of alleged recovery; that the alleged Kalashnikov had not been recovered from the possession of the appellant, such weapon has falsely been foisted upon the appellant and there is violation of section 103, Cr.P.C. on the part of prosecution. Lastly, he prayed for setting aside the impugned judgment and acquittal of the appellant.

9. Conversely, the learned DPG contended that the prosecution has fully proved the guilt of the appellant up to the hilt through overwhelming evidence, as such, the trial Court has rightly held him guilty of the offence, therefore, he sought dismissal of the appeal.

10. I have heard learned counsel for the parties and have gone through the record. The prosecution case is that on 7.1.2016 during investigation in case FIR No.190/2015, under section 302(c), P.P.C. on disclosure and pointation of the appellant, the police party recovered Kalashnikov from a residential room of the house of Ambo Mal, situated at Rojhan Jamali. In support of the case, the prosecution produced three witnesses. PW-1 Constable Atif Ali is witness to the recovery memo of Ex-P/I-A and deposed that on the pointation of appellant, the police party recovered a Kalashnikov from his house situated at Rojhan Jamali. PW-2 Abdullah SI reiterated the contents of murasila Ex-P/2-A, whereas PW-3 Muhammad Ali ASI/I.O conducted investigation and prepared challan. In cross-examination PW-2 and 3 admitted that the place of recovery is situated in a populated area and they have not associated any private person to witness the recovery.

11. Admittedly, in the instant case no member of public was associated to join the said recovery. The plea of the accused/appellant was that the Kalashnikov had been planted on him and this fake recovery was proved by the police witnesses, namely Constable Atif Ali and Abdullah SI. The plea is that the said recovery is of no evidentiary value as the same was made in violation of requirements of section 103, Cr.P.C. In the case of State through Advocate General, Sindh v. Bashir and others (PLD 1997 SC 408) the Hon'ble apex Court observed that requirements of section 103, Cr.P.C., namely, that two members of the public of the locality should be Mashirs to the recovery, is mandatory unless it is shown by the prosecution that in the circumstances of a particular case it was not possible to have two Mashirs from the general public. If, however, the statement of the police officer indicated that no effort was made by him to secure two Mashirs from public, the recoveries would be doubtful. In the instant case, from the statement of the Investigating Officer, it is apparent that no efforts were made to join any member of the public to witness the said recovery. In the overall circumstances of the case, I do not find it safe to rely on the said recovery and such recovery has no legal value because of violation of mandatory provision of section 103, Cr.P.C. Provision of said section are, no doubt, mandatory and it is to guard against possible manipulation. Therefore, it is all the more necessary that the investigation officer should have tried in this case to secure the attendance of independent witnesses to attest the recovery of the Kalashnikov at the pointing of the accused/appellant and failure to do so would cast doubt on the factum of recovery. 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.

12. 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 was residing. To constitute "possession" within the meaning of 13-E of the Ordinance 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 Kalashnikov 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. Furthermore, the appellant has also been acquitted by the trial Court vide order dated 5.4.2016 accepting his application under section 265-K, Cr. P. C. in the main case registered under section 302, P.P.C.

13. 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 is on bail, his bail bonds stand discharged. JK/22/Bal Appeal accepted.