Ali Askar Vs The State

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

MTNGORA BENCH (DAR-UL-QAZA), SWAT

(Judicial Department)

Criminal Apneal N o.246-M/2017 With Cr. MNo. 277 -Ml20l7

ALI ASKAR ViS The State

JUDGMENT

Date of hearing: 06.02.20f8

Aooellan t li Askail bv Mr. Sher Muh ammad Khan, Advocate.

Respondent:- (The Stile) bv Malak Sarwor Khan, Stale Counsel.

MOHAMMAD IBRAHIM KHAN. J.- This is a

criminal appeal within the meaning of Section 410 of the Code of Criminal Procedure coming-out of conviction of the accused/Appellant Ali Askar for a sentence to undergo 3 years rigorous imprisonment with fine of Rs.10,000/- or in default thereof shall furlher suffer one month Sl, else-ways extending him the benefit of Section 382-8 Cr.P.C. This judgment is edict dated 21.08.2014 in case FIR No. 55 dated 31.01.2013 charged U/S 13 Arms Ordinance t)-, egistered at Police Station Nawagai, District Buner q-- in Case No. 05/AO of the year 2013 decided by the Court of learned Additional Sessions Judge-ll/lzafi Zila Qazi Buner.

Nawab (D.8.) Hon'ble Mr.lustice Mohammad lbrahim Khan Hon'ble Mr. Justice l5htiaq lbrahim

2.The 'Murasila,followed by lodging of the First Information Report would reveal that during routine patrolling of the area the local police received spy information with regard to proclaimed offender Ali Askar being involved in case FIR No.

351 dated 04.09.2011 under section 302 ppc registered at PS Nawagi. Therefore, in view of such information, the police rushed to the spot arrested the accused/Appellant. During his personal search from the trouser-fold of his Shalwar the police recovered 30 bore pistol along with magazine and 3 cartridges.

Since the accused could not produce any license or permit in respect of the same pistol, therefore,, it was taken into possession vide recovery memo Ex. PW- 1/1. Hence, on the strength of 'Murasila' Ex. PA/l, FIR Ex. PW-PA was chalked-out against the accused/Appellant at the same Police Station Nawagi.

3.In a full dressed trial, after framing of ,)- charge against the accused/Appellant by the learned Trial Court on 27.02.2013 when the asservations were not acceptable to him, he claimed trial. Thereby the prosecution examined Muhammad Shah Khan SHO as PW-l, Umar Rahim official of Frontier Nawab (0.8.) Hon'ble Mr. iustice Mohammad lbraham Khan Hon'ble Mr. lustice lshtiaq lbrahim

Constabulary bearing No. 725 as pW-2 and Ghulam Khan SI as PW-3. At the end, the statement of the accused/Appellant yousaf Khan was recorded lls 342 of the Code of Criminal procedure, thereby denied the charge, posed innocence and stated to have falsely been implicated in the case. He, however wished to produce defence within the meaning of section 340 (2) Cr.P.C. After hearing the parties at length the decision under conviction for the sentences was delivered.

4.Having heard arguments of leamed

counsel for the accused/Appellant and leamed State counsel, record was gone through with their valuable asslstance.

5 Perusal of the record would reveal that on 30.01.2013 at 16:45 hours Muhammad Shah Khan SHO PS Nawagi, PW-l during routine Ghast of the Illaqa received spy information that proclaimed offender Ali Askar wanted in case FIR No. 351 dated

1UJ-O+.OS.ZO1

I under section 302 PPC registered at PS v^ Nawagi has been present at Jangai road near Ambela Petrol Pump. So, in view of such clue, the said SHO along with police party proceeded to the spot and arrested the accused/Appellant. During his personal Nawab (o.B.) Hon'ble Mr.lustice Mohammad lbrahim Khan Hon'ble Mr. Justice lshtiaq lbrahim

search one 30 bore pistol along with magazine and 3 cartridges were recovered. However, during cross_ examination this PW admitted that the alleged recovery of pistol was made from the

accused/Appellant near the petrol pump. yet no independent or impartial witness has been associated with the recovery process in order to funher authenticate the version ofprosecution with regard to the alleged recovery of pistol being weapon of offence in the main case. It is further evident from the cross-examination of this PW that at the time of arrest ofthe accused/Appellant on sighting the police vehicle in close approximate of l0ll2 paces he did not try to escape from the spot. So, from such act of the accused/Appellant an inference could be gathered that he might have surrendered himself to the local police and thereafter the alleged recovery of pistol might have been attributed to him being proclaimed offender. Otherwise, in ordinary parlance the / accused beine involved in murder case and that too ll^?-- V- when had been declared proclaimed offender, thus, in all possibilities would have tried to whisk off his presence at least from public places. PW-2 Umar Rahim Frontier Constabulary official though Nawab (D.8.) Hon'ble Mr. Justice Mohammad lbrahim Khan Hon'ble Mr. Justice lshtiaq lbrahim

reiterated the stance of prosecution in his statement before the Court, however during cross-examination admitted that the accused/Appellant was arrested at Shahi road and at the relevant time the concemed SHO did not give him any instruction with regard to association of any independent or private witnesses with the recovery process. The last witness of prosecution is Ghuiam Khan SI PW-3, who has conducted the investigation in this case. This PW during cross-examination admitted that in the site plan there was a reference of the house of Qalandar yet he has not been examined as witness during Court proceedings.

6 No doubt, these statements of the prosecution witnesses have created a serious dint m the version of prosecution with regard to the alleged recovery of pistol from the person of accused/Appellant. Thus, in all probabilities it can be said with certainty that the prosecution has badly tQ.6i1"6 to bring home charges against the accused/Appellant for the recovery of crime weapon (pistol) along with magazine and 3 cartridges, therefore, the accused/Appellant deserves to be given libety by way of his acquittal.

Nawab (D.8.) Hon'ble Mr.lustice Mohammad lbrahim Khan Hon'ble Mr. Justice lshtiaq lbrahim

7.Even otherwise, it is settled by now that the recovery of crime weapon and empties etc are always considered to be corroborative piece of evidence and such kind of evidence by itself is not sufficient to bring home the charges against the accused especially when the other material put-forward by the prosecution in respect of guilt of the accused/Appellant has already been disbelieved.

This view has been affirmed by the Hon'ble Supreme Court of Pakistan in case cited as 2001 SCMR 424 " Imrun Ashraf and 7 otlrers vs lhe Slsle'l in the follow ing manner:- "Recovery of incriminating articles is used for the purpose of providing corroboralion to lhe ocular teslimonJ), Ocular evidence and recoveries, therefore, ore to be considered simultaneously in order 1o reach for a just conclusion."

Likewise, if any other judgment is needed on the same analogy, reference can be placed on 2007 scMR 1427 Dr. Israr-ul-Haq vs r- tt/- Muhammsd fivva7 ond 0nollrer wherein the relevant citation (c) enunciates:

"Direct evidence having failed' corroborative evidence was of no help. When ocular evidence is disbelieved in Nawab {D.8.) Hon'ble Mr. lustice Mohammad lbrahim Khan Hon'ble Mr. Justice lshtiaq lbrehim

a criminsl case then the recovery of an incriminating article in the nature of weapon of offence does not by itself prove the prosecution case.

8.In view of the above discussion, we are ofthe absolute view that the prosecution failed to prove its case against the accused/Appellant beyond any shadow of doubt; therefore, his conviction cannot be maintained, ergo, while extending the benefit of doubt, we accept this appeal by setting aside his conviction and sentences recorded by the learned trial Court through the impugned judgment dated 21.08.2014 and acquit him of the charges leveled against him.

He be set free forthwith, if not required in any other case.

9 These are the reasons ofour short order ofeven date.

10.Before parting with this judgment, it rs ld-n""""rary to give reference of the criminal miscellaneous application bearing No. 277-M of 2017 preferced by the applicant/Appellant for condonation of delay with regard to filing of appeal against his conviction before this Coutt. Nawab (0.8.) Hon'ble Mr.lustice Mohammad lbrahim Khan Hon'ble Mr. lustice lshtiaq lbrahim

Besides the grounds advanced in this application there is judgment of the Hon,ble Lahore High Court cited as 1985 MLD 64 7 " Abdul Gha ffar V/S The State wherein it has been held:- " Application for condonation of delay in Jiling appeal against conviction under Arms Ordinance. Accused under impression that he was only convicted under s, 302,323,34, Penal Code, in which his sentence was suspended, Accused when approaching jail authorities knowing that he was olso convicted under Arms Ordinance.

Application for condonation of delay grtnted in circ umslances.

Keeping tn sight the ratio decidendi settled in the above dictum of the Hon'ble Lahore Court a specific ground has been taken by accused/Appellant that he came to know about his conviction under section 13 A.O at the time of arguments of before this Court, therefore, the d- present appeal against his conviction was not preferred within time. Even otherwise, the Appellant served out his sentence of 3 years RI Nawab (O.8.) Hon'ble Mr. Justice Mohammad lbrahim Khan Hon'ble [rr. ]ustice lshtiaq lbrahim

awarded u/s 13 A.O impugned herein. Hence, in such scenario, this petition is allowed and the delay occurred during filing ofappeal before this Court is hereby condoned.

Announced. {- ld- Dt: 06.02.2018 E

E

Tqk

Nawab (0.8.) Hon'ble Mr' Justice Mohamm ad lbrahim Khan Hon'ble Mr. iustice lshtiaq lbrahim