2011 P Cr (PLP)

SAGHEER AHMAD QADRI, J.-Petitioner Ali Asghar son of Muhammad Younas the convict in case F.I.R_ No. 583 dated 26-9-2003 registered at Police Station Gujar Khan under section 13 of the West Pakistan Arms Ordinance (No.XX) 1965, challenged his conviction and sentence passed by the learned Judicial Magistrate Gujar Khan vide judgment dated 7-4-2010 whereby he was convicted and sentenced to undergo 3 years' R.I. with benefit under section 382, Cr.P.C. However, in appeal vide judgment dated 29-9-2010 passed by the learned Additional Sessions Judge, Gujar Khan while maintaining the conviction of the petitioner under section 13 of the Arms Ordinance (No.XX), 1965 reduced his sentence to 2 months' R.I. while extending benefit under section 382-B, Cr.P.C.

2. The brief facts in order to dispose of this revision petition are that the petitioner Ali Asghar son of Muhammad Younas accused in case F.I.R. No. 525, dated 18-9-2003 registered under sections 302, 324, 337-A(ii)/34, P.P.C., at Police Station Gujar Khan during investigation on 26-9-2003 made a disclosure that he would get recovered Chhuri (P1) the alleged weapon of offence and subsequently he led to the recovery of Chhuri (P1) from his house and the complainant of this case, namely, P.W.2 Syed Ijaz Hussain Shah Inspector/SHO, Police Station Gujar Khan prepared complaint Exh.PB, sent the same to the police station on the basis of which F.I.R., as mentioned above, was registered. The challan was submitted in the trial Court. The petitioner/convict was charged on 3-6-2005 under section 13 of the West Pakistan Arms Ordinance XX of 1965 to which he pleaded not guilty and claimed trial.

3. The prosecution examined P.W. Mushtaq Hussain son of Hukam Dad who stated that on 26-9-2003 the accused/petitioner/convict led to the recovery of chhuri P-1 from his Baithak of his house which was secured into possession vide memo Exh.PA attested by him. Chhuri allegedly was .measured having 9-1/2 inches in its full length. Its blade however was 5-1/2 inches long. The complainant Syed Ijaz Hussain Shah, S.I. appeared as P.W.2 and he reiterated his stance as mentioned in his complaint Exh.PB. He stated that as the petitioner led to the recovery P-B, therefore, he prepared complaint Exh.PP and also prepared site plan Exh.PC.

4. The accused was examined under section 342, Cr.P.C. wherein in reply to the question why the P.Ws. deposed against him and why this case against him, he stated "that the sole recovery witness who is highly inimical towards him is an interested witness. The instant case was concocted in collusion with the complainant party in order to strengthen that false murder case against him. He further stated that he was falsely involved in this case and the prosecution was not able to prove the charge against him as no independent witness was examined to prove the recovery.

5. The accused/petitioner in his defence also appeared as his own witness under section 340(2), Cr.P.C. as D.W.1 and stated that actually he himself surrendered before the police on 18-9-2003 at 7-00 p.m. He was never taken to any place nor he led to the recovery of alleged chhuri whatsoever. He examined Muhammad Sadiq as D.W.2 who stated that on the alleged day of recovery he was present in the house of accused but nobody reached there nor the petitioner/accused got recovered any chhuri from his house. D.W.3 Nasir Ali also stated so.

6. The learned trial Court believing the prosecution version, convicted the petitioner vide judgment dated 7-4-2010 as mentioned above. An appeal preferred against that judgment was also dismissed by the learned Additional Sessions Judge vide judgment dated 29-9-2010 while reducing the sentence mentioned above. Hence, this criminal revision.

7. The learned counsel for the petitioner contends that the allegations against the petitioner are false as he never led to the recovery of Chhuri (PI), trout his house; that the sole witness examined against him is P.W.1 Mushtaq Hussain who was an interested and inimical witness, who appeared against the petitioner just to strengthen false murder case; that the alleged place of recovery was the house wherein the petitioner's other family members including parents, brothers; etc. residing and it was not in exclusive possession of the petitioner; that the F.I.R. in this case has not been exhibited nor proved on record thus the registration of the case is not proved; that the Chhuri (P1) the alleged recovery is of common pattern and ordinarily available in the market thus the provisions of section 13 of the Arms Ordinance (No.XX), 1965 are not attracted; that the statements of the two recovery witnesses are self contradictory. Prayed that as the prosecution has not been able to prove the charge against the petitioner rather he did not commit any offence, therefore, this criminal revision be allowed while setting aside the impugned judgments passed by both the courts below.

8. On the other hand. learned Deputy Prosecutor General while supporting the judgments of the learned courts below has opposed this criminal revision on the grounds that during investigation of the connected murder case the petitioner made disclosure and lead to the recovery of Chhuri (P1) from his house in the presence of P.W. Mushtaq Hussain and Zardad son of Mir Ahmed (given up P.W.); that statement of P.W.1 Mushtaq Hussain was corroborated by P.W.2 Ijaz Hussain Shah, SHO/complainant who is also Investigating Officer of this case; that the complaint Exh.PB was exhibited on record, however, due to technical reasons the F.I.R. could not be exhibited but it is not fatal to the prosecution; that the prosecution is able to prove the charge against the petitioner and even otherwise the, learned appellate court has already taken lenient view in reducing the sentence of the petitioner from 3 years' R.I. to 2 months' R.T. Prayed that this criminal revision be dismissed.

9. I have heard the learned counsel for the parties and perused the record.

10. If the complaint (Exh.PB) is seen complainant P.W.2 Syed Ijaz Hussain Shah, SHO/I.O. mentioned that during investigation of case F.I.R. No.575 dated 18-9-2003 registered under sections 302/324/34, P.P.C. petitioner Ali Asghar made disclosure that he could lead for recovery of Chhuri (P1) the alleged weapon of offence from his house. The remaining two accused, namely, Qasim Ali and Muhammad Younus son of Gulnar Satti also made disclosure that they could lead to the recovery of hatchet from his house and then he took all these accused to village Sandal Khingar where the petitioner lead to the recovery of Chhurri (P1) from his house in presence of witnesses, namely, P.W.1 Mushtaq Ahmed as well as Zardad (given up P.W.). According to the complainant P.W. Syed Ijaz Hussain Shah, SHO' he sent the complaint Exh.PB to the police station through Muhammad Shatique, Constable for registration of the F.I.R. Such Shafique Constable was never examined by the prosecution nor any Moharrir of the police station who recorded the F.I.R. No.583 dated 26-9-2003 registered at under section 13 of Arms Ordinance (No.XX), 1965. Thus registration of the F.I.R. is not proved on record and a vital link in the prosecution version is missing. As the petitioner-convict in his defence agitated that he was never taken to the alleged placed of recovery nor any such recovery was ever effected from his house. The sole recovery witness i.e. P.W. Mushtaq Hussain examined by the prosecution stated that all the three accused i.e., the present petitioner and his two co-accused in murder case were taken to the place of alleged recovery of Chhuri (P1) in police vehicle. He has, however, contradicted the statement of complainant P.W.2 Syed Ijaz Hussain Shah, SHO/I.O. who in his cross-examination stated that it would be incorrect to say anybody that he took all the three accused Qasim, Younus and Ali Asghar (present petitioner) together at the place of recovery of Chhurri (P1). If the statement of P.W.2 is seen he during cross-examination admitted that Chhuri (P1) was of common pattern available easily in the market. The second witness of the recovery i.e., P.W. Mushtaq Hussain has not been examined.

11. If the definition of 'arms' as provided under section 3(b)(iii) of Arms Ordinance (No.XX), 1965 is seen it includes; "Air pistols, bayonets, swords, sword-sticks, daggers, knives with blades of four inches or more (but not kitchen knives or knives used in good faith for the carrying on of a profession) and flick knives irrespective of the size of the blade." Under section 9 of the Ordinance the definition for getting or possessing an unlicensed arm is provided which reads as under:-- "No person shall have in his possession or under his control any arms or any ammunitions or military stores, except under a license and in the manner and to the extent permitted thereby." Section 13 of the Ordinance provides punishment for violation of the offences provided in such special enactment.

12. As already mentioned, complainant P.W.2 Syed Ijaz Hussain Shah, SHO/I.O. in his own statement during cross-examination admitted that Chhuri (PI) was of ordinarily pattern available in the market. According to definition of section 3(b)(iii) of the Ordinance, no doubt knives with blades of 4 inches or more comes under the definition of arms but kitchen knives or knives used in good faith for carrying on of a profession have specifically excluded from this definition. If the recovery memo. Exh.PA is seen the pattern of the Chhuri (P1) recovered is trend of ordinarily kitchen knive/chhuri normally used in every house. Thus it does not fall within the definition of arms which cannot be possessed or kept by a person until and unless a license is issued by the competent authority and thus it is punishable under section 13 of the Ordinance.

13. In view of the circumstances when the F.I.R. No.583 of 2003 is not proved the sole recovery witness P.W.1 Mushtaq Hussain got examined contradicted the statement of the complainant P.W.2 Syed Ijaz Hussain Shah, SHO who is also Investigating Officer of this case and above all the recovered Chhuri (P1) does not fall within the definition of arms, as discussed above, therefore, the conviction and sentence recorded by the learned trial Court upheld by the learned appellate court are not sustainable in the eyes of law.

14. Resultantly, this criminal revision is allowed. The impugned conviction and sentence of the petitioner passed by the learned Judicial Magistrate, Gujar Khan vide judgment dated 7-4-2010 upheld by the learned Additional Sessions Judge, Gujar Khan vide judgment dated 19-9-2010 are set aside. The petitioner is acquitted of the charge. He shall be released forthwith from the jail, if not required in any other case. H.B.T./A-14/L Petition allowed.