2018 P Cr (PLP)

SHAHID HAMEED DAR, J.

This appeal arises from the judgment, dated 27.1.2010, whereby learned Additional Sessions Judge, Gujranwala convicted Muhammad Irfan (appellant) under section 13 of the Pakistan Arms Ordinance No.XX of 1965 and sentenced him to rigorous imprisonment for three years with tine of Rs.1,000/- or in default thereof to undergo simple imprisonment for one month. Benefit of section 382-B, Cr.P.C. was, however extended to him. It all happened on conclusion of his trial in case- FIR No.354/2009, dated 18.8.2009, registered for an offence under section 13 of the Pakistan Arms Ordinance No.XX of 1965, at Police Station Tatley Aali Gujranwala. This sentence was ordered to run concurrently with the sentence, awarded to him in the main case, bearing FIR No.332/2009. dated 31.7.2009, under section 302, P.P.C., Police Station Tatley Aali Gujranwala, vide separate judgment of even date.

2. Precisely, the relevant facts of the case are that Muhammad Irfan (appellant) allegedly made a disclosure on 18.8.2009, during investigation of case-FIR No.332/2009 (supra) and led to the recovery of a .12-bore pump-action gun (P1) beside three live cartridges (P2/1-3), wherefor he could not produce a valid licence, which resulted in registration of FIR No.354/2009 (Exh.PA/1) on the complaint (Exh.PA) of Aftab Hussain SI/Inv.(P.W.3). On completion of investigation, a report under section 173, Cr.P.C. was submitted before the learned trial court for trial of the accused in accordance with the law.

3. On indictment, the appellant pleaded not guilty and claimed a trial. To prove its case, the prosecution produced three witnesses. namely Muhammad Ali 3308/HC (P.W.1), Abid Sohail 2178/C (P.W.2) and Aftab Hussain SI/IO (P.W.3). Thereafter, the appellant was examined under section 342, Cr.P.C. whereby he proclaimed his absolute innocence in the matter. While answering the question, why this case against him and why the PWs had deposed against him, be stated as under:- "I was falsely implicated in this case by the complainant party. Nothing has been recovered from me. All the proceedings of this case are false and bogus. PWs have deposed against me in connivance with complainant." He declined to make statement on oath or lead any evidence in defence. Learned trial court concluded his trial through the impugned judgment by holding him guilty of the charge and awarded him the sentence in mentioned terms.

4. The appellant has contended that he neither made any disclosure during investigation of the murder case nor he led to the recovery of .12-bore pump-action gun and he was told by the Thanedar that he had been involved in a case of Arms Ordinance as well. He meekly submitted that he was not taken to his house by the Sub-Inspector and this case of illicit arms had been planted on him by the police to strengthen the murder case, wherein he had been acquitted of the charge on the basis of compromise. He maintained that he had been falsely involved in this conspiratorial case, therefore, he may be acquitted of the charge.

5. On the other hand, learned Deputy Prosecutor General Punjab has contended that the prosecution proved its case against the appellant through credible evidence and the impugned judgment is sustainable from all aspects.

6. After hearing the appellant, the learned law officer and going through the available record, it is straightaway observed that the prosecution case is laden with a number of weaknesses and infirmities, which led to an irresistible conclusion that prosecution had failed to meticulously discharge the burden to prove its case against the appellant beyond any reasonable shadow of doubt. The statements of the most crucial witnesses, Abid Sohail 2178/C (P.W.2), an attesting witness of' the seizure-memo (Exh.PB) qua recovery of .12-bore gun (P1) and three live cartridges (P2/1-3) and Aftab Hussain SI (complainant/P.W.3), the investigating officer, are badly discrepant inter se and they hardly corroborated each other on any material aspect of the case. Aftab Hussain SI (P.W.3), the scribe of complaint (Exh.PA), did not depose about its preparation by him in his testimony, rather he kept silent on this point, leaving it a matter of speculation by all. The complaint was received in evidence as Exh.PA through the statement of Muhammad Ali 3308/HC (P.W.1), who, being duty officer chalked out formal FIR (Exh.PA/1). The contents of this document could only be proven by the investigating officer and his avoidance in this regard virtually reduced the efficacy of FIR (Exh.PA/1) in immeasurable terms. An examination of complaint (Exh.PA) revealed that time of its preparation i.e. 3.20 p.m. had been written in separate ink and hand, as regards rest of its contents. A foot-note about registration of FIR No.354/09 (supra) vide rapat No.17 at 3.50 p.m. on 18.8.2009, apparently having been written by Muhammad Ali 3308/HC (P.W.1) appeared on the south-east corner of the complaint, but its handwriting did not assimilate with that of the formal FIR (Exh.PA/1), which compulsorily meant that it was not in the hand of the scribe of FIR. The preparation of complaint (Exh.PA) at 3.20 p.m. on 18.8.2009 by Aftab Hussain SI (P.W.3) has gone unsubstantiated and resultantly shaken every joint of the prosecution case. The FIR (Exh.PA/1) is, thus, unproven.

7. The recovery of .12-bore gun (PI) and three live cartridges (P2/1-3) vide seizure-memo Exh.PB at the instance of the appellant remained far from having been established, as statements of P.W.2 and P.W.3 are contradictory inter-se. Abid Sohail 2178/C (P.W.2) contended in his testimony that the accused made disclosure about the gun in at the police station at about 1.30 p.m. on 18.8.2009, whereas Aftab Hussain SI (P.W.3) mentioned this time as 2.30 p.m. Both of them failed to mention registration number of the official vehicle, whereby they moved from the police station to the place of recovery. While giving a description of the appellant's house, whereform the recovery was made, Abid Sohail constable (P.W.2) stated that there was a thoroughfare on its western side, which is contradicted by the visual site-plan, not exhibited in evidence but available on the record, as it showed a residential house of one Muhammad Ramzan onto the said direction. Both, P.W.2 and P.W.3 frankly admitted that many people from the vicinity gathered at the spot at the time of recovery, but they did not associate anyone of them with the proceedings conducted. It was an open house and an open iron-chest, wherefrom the above said gun and cartridges were recovered, as deposed about by both the witnesses. Abid Sohail constable (P.W.2) made a startling deposition in his testimony, when he said that his statement had been recorded by the investigating officer at the police station and his signature thereon was also obtained there. Being a police official, he must have known that his statement under section 161, Cr.P.C. was not required to be signed by him, hence, it may easily be inferred that his signature had been obtained on the memo of recovery at the police station. It unfurled reality of the prosecution case, regarding which the appellant had contended, while deposing under section 342, Cr.P.C., that a false case had been fabricated against him at the police station. Interestingly, the investigating officer (P.W.3) did not state that he inquired about the licence of the recovered arm from the accused, nor was it so stated by Abid Sohail constable (P.W.2) in his testimony, still trial court put a question to the appellant in this regard under section 342, Cr.P.C., which was answered in negative by him. How could it he put to the accused, if this fact did not figure in the prosecution evidence. It would, therefore, be understood that putting of the said question to the appellant was an illegal gesture of the court.

8. It is an admitted position that the appellant has been convicted on the evidence of three witnesses, who all belonged to the police department and no independent witness belonging to the public was examined, although many of them, as mentioned precedingly were available there. It also oozed from the record that the case property was not produced along with the challan, although it appeared that the gun and the cartridges were produced in court during examination of the prosecution witnesses. The identification of the gun allegedly recovered from the accused could not be held to have been established satisfactorily in such circumstances.

9. There is another crucial aspect of the case, that related to the appellant's trial under section 13 of the Arms Ordinance (XX of 1965) by an Additional Sessions Judge, which militates against section 14-A of the Arms Ordinance (ibid). This section has ousted the jurisdiction of the Sessions Judge and Additional Sessions Judge to try such cases. It reads as follows:- "14-A. Certain offences triable by Magistrates. (1) Not-withstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898), an offence punishable under section 13 or section 14 shall, unless it has been committed in respect of any of the arms, ammunition or military stores referred to in the proviso to the said section 13, be triable by a Magistrate of the first class. (2) All cases relating to offences triable by a Magistrate of the first class under subsection (1) and pending in a Court of Session immediately before the commencement of the Pakistan Arms (Amendment) Ordinance, 1976 (XXI of 1976), in which the charge has not been framed shall, on such commencement, stand transferred to the Court of the Magistrate of the first class having jurisdiction over such cases." It has been held in Falak Sher v. The State (1987 MLD 1156), Muhammad Anwar v. The State (1987 PCr.LJ 2049), Muhammad Siddiq v. The State (1988 PCr.LJ 1855), Allah Bakhsh v. The State (1988 PCr.LJ 2133), Muhammad Tahir v. The State (PLD 1989 Pesh. 162), Asal Khan v. The State (1990 PCr.LJ 449), Sudheer v. The State (1991 PCr.LJ 736), Akbar Khan v. The State (1991 MLD 1829), Sher Muhammd alias Shera v. The State (1994 MLD 1704) that the offences falling under section 13 or section 14 shall be exclusively triable by a magistrate of the first class, in an identical case and Muhammad Anwar v. The State (1987 PCr.LJ 2049), a Division Bench of this court observed as under:- "Before parting with this judgment we are tempted to point out that where an accused is alleged to have used an arm (not covered by proviso to section 13 of the Arms Ordinance, 1965) in the commission of offence triable by Court of Session, his trial under Arms Ordinance must be held by Sessions Judge/Additional Sessions Judge trying the main offence, to avoid possibility of conflicting judgments by the two different Courts on the point of possession of arms by the accused i.e., one given by the Sessions Judge/Additional Sessions Judge trying the main offence and the other by Magistrate Ist Class trying the offence under Arms Ordinance, 1965. To avoid cropping up of such a situation, the Government concerned may take steps for suitably amending the relevant provision of law." As jurisdiction to try the appellant for an offence under section 13 of the Ordinance (ibid) exclusively rested with the first class magistrate, hence, his trial by the sessions court was illegal and conviction awarded to him was without jurisdiction. Consequently, the conviction recorded against him is set aside and the instant appeal is allowed. He is acquitted of the charge. He is present on bail, for his sentence had been suspended by this court on 23.8.2010. His bail bonds are cancelled and surety discharged. SL/M-154/L Appeal allowed.