Muhammad Ramzan vs State

2014 P Cr. L J 534

[Peshawar]

Before Abdul Latif Khan, J

MUHAMMAD RAMZAN---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous Quashment Petition No.136-D of 2013, decided on 24th October, 2013.

Criminal Procedure Code (V of 1898)---

----S. 561-A--- Pakistan Arms Ordinance (XX of 1965), S.13---Possessing unlicensed arms--- Petition for quashing of order---Prosecution produced three witnesses, who were all Police Officials, and abandoned the other witnesses being unnecessary---Occurrence took place in abadi of village where inhabitants were present, but none out of private persons, were made witness to the recovery memo---Police Officer had admitted that he could not name any person, who refused to record the statement, or to become a witness to the recovery memo---Police Officer had also admitted that he had not asked accused, as to whether alleged weapon was licensed or otherwise---All proceedings were conducted by Police Officer in the Police Station---Recovery allegedly made from accused had not been proved through tangible evidence---Investigating Officer had not prepared the recovery memos while taking into possession kalashnikov and rounds---Possibility of false implication of accused could not be ruled out---Deficiencies in the prosecution case, were not curable---Innocent person could not be connected with the commission of offence despite numerous lacunas left by the prosecution in the case--- Both courts below had failed to appreciate the evidence, and had wrongly convicted and sentenced accused in spite of the fact that no case was made out against accused--- Quashment petition was accepted and impugned judgment passed by courts below were set aside and accused was acquitted from the charges levelled against him, and sureties were set free from the liability of bail bond.

Iftikharul Haq Sheikh for Petitioner.

Muhammad Haroon Awan, D.A.-G. for the State.

Date of hearing: 24th October, 2013.

JUDGMENT

ABDUL LATIF KHAN, J.---Petitioner, namely, Muhammad Ramzan has impugned the judgment dated 26-6-2013 of learned Sessions Judge, Tank, whereby his appeal against the conviction order dated 24-1-2013 passed by learned Senior Civil Judge, Tank has been dismissed.

2.Short facts of the instant case are that on 18-5-2001, Mureed Akbar, S.H.O. Police Station, Tank along with other police contingent were on routine gasht in village Shah Alam, at about 1840 hours, petitioner was found with Kalashnikov, having 26 live rounds of 7.62 bore in magazine, petitioner was not in possession of legal authority for having the Kalashnikov, therefore, he was arrested and case F.I.R. No.486 dated 18-5-2011 under section 13, Arms Ordinance at Police Station, Tank was registered., After completion of investigation, petitioner was recommended for trial to the court of Allaqa Magistrate, Tank, where on completion of trial, on 24-1-2013, the petitioner was convicted and sentenced to suffer three years rigorous imprisonment and to pay Rs.2,000 as fine and in case of default of payment of fine to suffer three months simple imprisonment. The petitioner dissatisfied from the above mentioned conviction filed criminal revision before the learned Sessions Judge, Tank, which was also dismissed on 26- 6-2013, hence the instant petition.

3.Learned counsel for the petitioner contended that courts below have passed their judgments on non-appreciation of evidence as no private witness was cited in support of alleged recovery which is fatal for the prosecution case. It was contended that courts below have given no reason in support of their judgments and the prosecution case has been taken as gospel truth without adhering to the provisions of law.

4.Learned D.A.-G. supported the impugned judgments passed by courts below. It was contended that the prosecution has succeeded to bring home guilt of petitioner and recovery of Kalashnikov was made from petitioner duly witnessed by P.Ws. and supported by FSL report which shows that weapon was in proper working condition.

5.I have heard the learned counsel for the parties and perused the record with their valuable assistance.

6.Perusal of the record reveals that petitioner was arrested and F.I.R. was lodged on the basis of murasila against the petitioner. The prosecution produced three witnesses and abandoned other witnesses being unnecessary. P.W.1, Kifayatullah ASI police station, Tank, who has registered the F.I.R. Exh.P.W.1/1. P.W.2 Shaukat Hussain IHC No.673, deposed that Mureed Akbar S.H.O. arrested the accused along with Kalashnikov, magazine and 26 live rounds of 7.62 bore and witnessed the recovery memo Exh.P.W.2/2. In cross-examination admitted that the case property was not present before him. He also admitted in cross-examination that the occurrence

took place in village Shabaz. He admitted that none from the locality was made witness to the recovery memo and police constables in the company of S.H.O. were made witnesses. He deposed that the occurrence took place at 0640 evening and during gasht in the area of village Shabaz. It was also admitted by the witness that S.H.O. was busy in drafting murasila whereas he was busy in collection of rounds and Kalashnikov. He was unable to depose that how the constable went to the police station who took murasila for registration of case. He as unable to mention as to whether the S.H.O. has made one parcel for two items with regard to the Kalashnikov and rounds. He admitted that he was seated in the back body of the police vehicle. He also admitted that the site plan does not contain the presence of other constables. He denied the suggestion that Kalashnikov was recovered from terrorist Taliban and the accused has wrongly been involved in the case. The S.H.O. was abandoned as dead. P.W.3 Nasrullah Khan ASI, deposed that F.I.R. was entrusted to him and he along with police party went to the spot and where S.H.O. with police constables were present on the spot who handed over the arrested accused to him, who made parcel of Kalashnikov through recovery memo Exh.P.W.2. He prepared the site plan on the pointation of SHO Mureed Akbar, Exh.P.W.3/1, recorded the statement of P.Ws. and submitted complete challan, after the completion of investigation. In cross-examination he deposed that he reached the spot at 0810 hours. He admitted that investigation was completed with the help of torch. He also admitted that during entire investigation he has not mentioned the torch with help of which he has prepared the site plan in darkness. He admitted that the occurrence took place in abadi of village Shabaz and conceded that it is a village where inhabitants were present but none out of private persons were made witness to the recovery memo. He admitted that he cannot name any person who refused to record the statement or to become a witness to the recovery memo. He deposed that he spent 1- 1/2 or 2-1/2 hours on the spot. He admitted that he has not made parcel of rounds as case property. He admitted that he has not asked the accused as to whether weapon was licensed or otherwise. However, self stated that S.H.O. has made the presence prior to his arrival. He admitted that all the proceedings were conducted by him in the police station.

7.The petitioner in his statement under section 342, Cr.P.C. denied the recovery of Kalashnikov and rounds from him. He deposed that allegations are false, and based on malice. The recovery memo Exh.P.W.2/1 reveals that Shah Wali Khan ASI and Shaukatullah were cited as witnesses to it. Shah Wali Khan ASI has not been examined by the prosecution. He is also the witness of recovery memo Exh.P.W.2/2. The site plan Exh.P.W.3/1 does not contain or shown the existence of Police contingent accompanying the S.H.O. as well as ASI. The site plan shows that the alleged recovery was made from the accused within area of village Shabaz but none of that area has been cited as witness. P.Ws.2 and 3 have candidly admitted that none to be asked to become a witness and similarly cannot name anyone who refused to become a witness or depose in this respect. The recovery allegedly made from the petitioner has not been proved through tangible evidence. Mureed Akbar S.H.O. has since died, however, his handwriting and signature on the murasila and recovery memo prepared by him, has not been proved by producing other officer working with him or acquainted with the signature and hand writing of deceased ASI. Even Nasrullah ASI P.W.3 or constable Shaukatullah P.W.2 have not deposed nor verified the signature and hand writing of the deceased S.H.O., which makes the murasila and recovery as unproved due to lack of evidence. The Investigating Officer has not prepared the recovery memos while taking into possession Kalashnikov and rounds. Expert report to this effect that Kalashnikov is foreign made and is in proper working order in no way connects the petitioner with the commission of offence. The possibility of false implication of the petitioner cannot be ruled out, deficiencies in the prosecution case, are not curable and innocent person cannot be connected with the commission of offence despite numerous lacunas left by the prosecution in the case. Both the courts below have failed to appreciate the evidence and has wrongly convicted and sentenced the petitioner in spite of fact that no case is made out against petitioner in peculiar circumstances of the case. The learned trial Court has converted the sentence of petitioner into probation being first offender by directing him to furnish bail bonds in the sum of Rs.50,000 with two local sureties to the Probation Officer till the expiry of period of appeal or revision and confiscated the case property to the State.

8.For the foregoing reason, the instant criminal quashment petition is accepted and set aside the impugned judgments passed by learned lower courts and acquit the petitioner from the charges levelled against him. He and sureties be set free forthwith from the liability of bail bonds provided before the Probation Officer.

HBT/667/P Petition accepted.