1. RAHMAT HUSSAIN JAFFERI, J.-- This judgment will dispose of the Criminal Appeal No,D-101 of 2002 and Criminal Appeal No,D-102 of 2002 as they arise out of one and common judgment.
2. The present appeals have been directed against the judgment dated 30-11-2002 passed by the Anti-Terrorism Court No,III, Sukkur in Special cases Nos.165, 166 and 167 of 2001 by which the learned Judge had convicted the appellants under section 13(e). of Pakistan Arms Ordinance, 1965 (hereinafter referred to as Arms Ordinance) and sentenced each of them to undergo R.I. for 5 years and to pay fine of Rs,50,000 or in default thereof to suffer R.I. for 2 years more, with benefit of section 382-B, Cr.P.C. whereas accused Israr, Javeed and absconding accused Rafique and Sikandar were acquitted of the charge.
3. The facts giving rise to the present appeals are that on 16-5-2001 both the appellants were arrested alongwith some other accused in connection with Crime No,20 of 2001 under section 365- A, P.P.C. and 7 of Anti-Terrorism Act, 1997. during the interrogation both the appellants voluntarily produced weapons which they had used in the commission of Crime No,20 of 2001. On 20-5-2001 the appellant Bilawal led the police towards the hedge of his house and produced one unlicensed pistol which was secured by the S:H.O. Juma Khan in presence of Mashirs H.C. Misri Khan and P.C.
4. Imam Bux. He prepared Mashirnama of such recovery. The appellant and. the property were brought to the police station where the S.H.O. lodged F.I.R. against him at 9-30 being Crime No,59 of 2001. On the same day at 2-00 p.m. the appellant Naseer led the police party towards heap of paddy crop out side his house and produced .30 bore T.T. Pistol from there. The S.H.O. Juma Khan secured the same in presence of same Mashirs. A Mashirnama was prepared at the Wardat. The appellant and the property were brought to the police station where F.I.R. under section 13(e) Arms Ordinance was lodged against the appellant vide Crime No,60 of 2001. After completing the investigation, the appellants were challaned in the above mentioned cases before the Anti- Terrorism Court. They were also challaned in Crime No,20 of 2001.
5. The Anti-Terrorism Court No,III, Sukkur amalgamated all the cases together by framing one charge and then common evidence was recorded. After going through the material available on the record, the appellants were acquitted in Crime No,20 of 2001, but they were convicted in Crime Nos.59 of 2001 and 60 of 2001 as mentioned above under the impugned judgment. The appellants were dissatisfied with the said judgment, therefore, they have preferred the present appeals.
6. We have heard the Advocate for the appellants, Assistant Advocate-General and perused the record of this case very carefully with their assistance.
7. The learned Advocate for the appellants has stated that the case was investigated by C.I.A. Police, who were not authorised to investigate the case in view of rule laid down in PLD 1997 SC 408. He has further argued that the weapons were not sealed at the spot; that the pistols were not sent to Ballistic Expert for examination and report and that the provisions of section 103, Cr.P.C. were violated, therefore, the case of the prosecution is highly doubtful. In support of the contentions, he has relied upon the following case-law:--
(1) Abdul Sattar v. State 2002 PCr.LJ 51
(2) Ashique Ali v. State 2002 PCr.LJ 450
(3) Fareed Ahmed Langra v. State 1998 PCr.L.I. 1368
(4) Loung v. State 1999 PCr.LI 595.
8. On the other hand, learned Assistant Advocate-General has stated that the C.I.A. Police were authorised by higher officers to conduct the investigation, as the investigation was transferred to them from, local police as stated by the S.H.O. Juma Khan, therefore, the rule laid down in PLD 1997 SC 408 is not applicable. He has further argued that the police were not required to seal the property at the spot or sent it to the Ballistic Expert for examination and report because simple possession of an unlicensed weapon is offence under section 13(e) read with sections 8 and 9 of the Arms Ordinance. He has further argued that the provision of section 103, Cr.P.C. will be applicable when the house is searched, but in this case the appellants had voluntarily produced the weapons, which they had used in the commission of Crime No,20 of 2001 under section 365-A, P.P.C. and section 7 of Anti-Terrorism Act, 1997, therefore, such type of discovery could not come within the meaning of search. He has relied upon a care of State v. Muhammad Amin 1999 SCMR 1367.
9. We have given due consideration to the arguments and have gone through the evidence available on the record.
10. In order to prove the case, the prosecution examined S.H.O. Juma Khan and Mashir H.C. Misri Khan, both the officers are of C.I.A. Police. The evidence of S.H.O. shows that on 28-4-2001 the investigation of the case was transferred from local police to C.I.A. Police under the orders of.
11. Superintendent of Police, Jacobabad. Their evidence further reveals that on 16-5-2001 the present appellants were arrested and the S.H.O. interrogated them. The appellants voluntarily disclosed that they would produce weapons which they had used in the commission of abduction case being Crime No,20 of 2001 and in pursuance of the said information on 20-5-2001 at 9-30 a.m. the appellant Bilawal led the police party towards the hedge of his house and produced one unlicensed pistol which was secured and Mahsirnama was prepared. On the same date at 2-00 p.m. appellant Naseer led the police and the Mashirs to a heap of paddy crop lying out side of his house and produced who unlicensed T.T. Pistol of .30 bore, which was secured in presence of Mashirs and the S.H.O. prepared such Mashirnama. The properties and the appellants were brought to the police station just after their respective recoveries and F.I.Rs, Nos.59 and 60 of 2001 were lodged separately at the relevant time. Their evidence further reveals that the S.H.O. produced entries of daily diary under which they had left the police station and returned after the recoveries, as Exh.21-E. to 21-F. The property and the accused were shown to the witnesses in the Court, they identified the property to be same and so also the appellants.
12. Both the witnesses were subjected to cross-examination, but nothing has come on the record to discredit their evidence nor any discrepancy or contradictions have been pointed out by the learned counsel for the appellants during the course of arguments. The witnesses had no enmity with the appellants or any enmity was suggested to them for falsely involving the appellants in the case. As such, there was no motive with the police witnesses to falsely involve the present appellants in this crime. After considering the material available on the record, we are of the considered view that the prosecution have proved the recoveries of unlicensed weapons from the possession of the appellants.
13. The learned Advocate for the appellants has attacked the investigation of the case by stating that C.I.A. Police had no power to investigate the case and relied upon a case of State v. Bashir reported in PLD 1997 SC 408. There are no two opinions that the C.I.A. police by themselves have no power to investigate a case. In the above quoted authority, it has been observed that without authorisation from competent authority, the C . I. A . Police cannot investigate the case.
14. In the present case S.H.O. Juma Khan has clearly stated that on 28-4-2001 under the orders of Superintendent of Police, Jacobabad he received the investigation of Crime No,20 of 2001 and in pursuance of the said investigation the recoveries were made. Thus C.I.A. Police were duly authorised by the Superintendent of Police to conduct the investigation, hence the argument advanced by learned Advocate for the appellants has no force.
15. As regards the argument of the learned advocate for the appellants that the property was not sealed at the spot or not sent to Ballistic Expert for examination and report, therefore, the case of the prosecution is doubtful and relied upon the four above mentioned authorities. We have gone through those authorities and found that in those authorities apart from the above discrepancies pointed out by the learned Advocate for the appellants in this case, there were other discrepancies in the cases and the Honourable Judges after taking into consideration all the discrepancies together found the cases to be doubtful. In the present case, it is pointed out that there are no contradictions or discrepancies in the evidence of prosecution witnesses. The S.H.O. has produced the entries of daily diaries of his arrival and departure from the police station. The evidence of witnesses have been found to be reliable and trust worthy, therefore, there are no other discrepancies in the case except the non-sealing of weapon at the place of incident and not sending the property to Ballistic Expert. In our opinion merely because of the above mentioned two laps on the part of police, the entire case of the prosecution cannot be thrown out of considering in presence of our whelming evidence connecting the appellants with the commission of this crime.
16. It is pointed out that wisdom behind sealing the weapon at the place of incident is to eliminate the possibility of manipulation of evidence after the recovery of weapon. The sealing of the weapon would become essential in the cases when it is alleged that the weapon was used in the commission of crime and empties were secured from the Wardat. In such situation the empties are required to be sealed after its recovery and so also the weapon secured from the possession of the accused and their both the properties are to be sent to the Ballistic Expert for examination and report so as to connect the empties with the weapon secured from the possession of the accused in order to prove that such weapon was used in the commission of the crime. If weapon or empties were not sealed at their respective places of recoveries then possibility of tampering with the said piece of evidence cannot be ruled out for the simple reason that after recovery of pistol, empties can be manipulated by firing from the pistol and then if those manipulated empties of pistol are sent to Ballistic Expert then definitely the report of Ballistic Expert will be in positive, therefore, in order to avoid the possibility of manipulation recoveries or weapon, the Court always insists upon that the property should be sealed at the place of Wardat so as to discard any possibility of manipulation or tampering with the evidence. In such situation, it is essential that the property should be sealed at the place of recovery and sent to Ballistic Expert.
17. In the present case, there is no allegation that the weapon was fired at the place of incident or empties were secured from the place of incident so as to connect the weapon with the said empties and appellants could be involved through that piece of evidence. Even otherwise this piece of evidence could have only been used against appellants in Crime No,20 of 2001.
18. It will be seen that mere possession of unlicensed weapon is an offence under the Arms Ordinance.
19. In this connection, a reference is invited to sections 8 and 9 of Arms Ordinance, which read as under:-- "8. Prohibition of going armed without licence.--(1) No person shall go armed with any arms except under a licence and to the extent and in the manner permitted thereby.
2. Any person so going armed without a licence or in contravention of its provisions may be disarmed by any Magistrate, Police Officer or other person empowered by Government in this behalf by name or by virtue of his office.
3. Nothing in subsections (1) and (2) shall apply to a person carrying arms under a written authority issued in accordance with the rules.
9. Unlicensed possession of arms, etc. No person shall have in his possession or under his control any arms, or any ammunition or military stores, except under a licence and in the manner and to the extent permitted thereby."
20. From the plain reading of above provisions, it is clear that no person is allowed to go armed without licence or possess any arms and ammunition without licence. If any person violates the provisions of sections 8 and 9 then he will be committing an offence punishable under section 13(d) and (e) of the Arms Ordinance which reads as under:-- "13. Penalty for breach of sections 4-B to 11.---(Subject to the provisions of sections 13-A whoever) commits any of the following offences, namely:--
(a) .....................
(b) ..............
(c) .................
(d) goes armed in contravention of the provisions of section 8;
(e) has in his possession or under his control any arms, ammunition or military stores in contravention of the provisions of section 9; As such mere going armed .or possessing unlicensed arms and ammunition are offences by itself and for that purpose there is no need for sealing the property at the place of incident or sending it to Ballistic Expert for examination and report that the weapon was in working condition. The learned Advocate for the appellant has argued that the report of Ballistic Expert would be essential in order to prove that the weapon was in working condition as held in a case of Ashique Ali v. State reported in 2002 PCr.LJ 450. In this connection we may further observe that even part of any arms is also coming within the definition of arm as defined under section 3(1)(b) (iv) of Arms Ordinance, which reads as under:-- "3. Definition.---(1) In this Ordinance, unless the context otherwise requires, the following expressions shell have the meanings hereby respectively assigned to them, that is to say---
(b) "arms" includes--
(i) cannon;
(ii) Fire-arms of all types, such as light and heavy automatic and semi-automatic weapons, rifles, carbines, muskets, shotguns (whether single or double barrelled), revolvers, pistols and appliances the object of which is the silencing of fire-arms;
(iii) air pistols, bayonets, swords, sword-sticks, daggers and knives with blades of four inches or more (but not kitchen knives or knives used in good faith for the carrying of a profession);
(iv) Knuckle-dusters, spears, spear-heads, bows and arrows and parts of arms;"
21. (underline is ours to give emphasis).
(V) From the above definition, it is clear that any part of an unlicensed arms as defined under clauses (1), (2) and (3) of section 3(b) is coming within the definition of arms. As such if anybody goes armed with any part of unlicensed weapon Or possesses any such part of unlicensed weapon then he will be breaching the provisions of sections 8 and 9, I therefore, will be liable to punishment under section 13(d)(e) of the Arms Ordinance. After taking into consideration of the definition of arms as defined in section 3(b)(iv) of the Arms Ordinance, we are of the considered view that it is not necessary that the report of Ballistic Expert should be obtained in order to prove that the said arm was in working condition.
22. In view of the above legal position, the authorities quoted by the learned Advocate for the appellants are not applicable and are distinguishable from the facts and circumstances of the present case. Further more in the said authorities, the above mentioned provisions of Arms Ordinance were not considered.
23. The learned Advocate for the appellants has argued that the provisions of section 103, Cr.P.C. were violated as no private persons were made Mashirs in this case. A plain reading of section 103, Cr.P.C. would make it clear that it is applicable in a case if search of a house is made. In the present case, the police themselves had not gone to any house to conduct a search so as to procure an evidence, but the police on the information supplied by the appellants went to the respective places and the appellants themselves had produced the weapons. The information furnished by, the appellants that they would produce the weapons which were used in the commission of crime and in pursuance of said information a discovery was made is admissible in evidence. Such information is protected under Article 40 of Qanun-e-Shahadat Order, which reads as under: "40. How much of information received from accused may be proved.---When any fact is deposed to as discovered in consequence of information received from a person accused or any offence, in the custody of a police officer, so much of such information whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
24. A perusal of Articles 37-39 show that confession made before a police officer is not admissible, but Article 40 is exception to the said articles under which the confession so far as it relates to the discovery of evidence can be proved, therefore, it has been made admissible. It has been held in a case Laxmi Shaw v. State reported in A.I.R. 1955 SC 104 that this Article is proviso to Articles 37, 38 and 39. It is clear that this article seems to be based on the view that if a fact is actually discovered in consequence of version given, some guarantee is appended to it that the information was true and accordingly can be safely allowed to be given in the evidence. Reliance is placed in a case of Laxmi Shaw v. State AIR 1955 SC 104, Ashique Hussain Chandio v. State PLD 1992 Karachi 5. Thus the information supplied by the appellants to the police while they were in custody is admissible in evidence. the same has been proved through the S.H.O. and through that information, the unlicensed weapons were secured, therefore, the same can be validly and legally used against the appellants.
25. Apart from the above provision, it is pointed out that in the case State v. Muhammad Amin (supra) the Honourable Supreme Court of Pakistan while discussing section 103, Cr.P.C. has observed at page 1371 as under: "It is by now settled law that provisions of section 103, Cr.P.C. do not apply if the recovery is not made in pursuance of search of a house, but is made elsewhere, for instance on the Highways or the road-sides or the public places like Railway Stations, Bus stands and the search of baggage or of the person at the Airports."
26. In the present case no evidence has been brought on the record that at the time of recovery any private person was present at the said place. However, the recovery from the possession of the appellant Naseer was made from a heap of crop lying out side of his house and recovery of pistol from the appellant Bilawal was made from the hedge of the house and that too on their pointations as such strict compliance of provision of section 103, Cr.P.C. is not called for in the circumstances of the present case. However, it is not out of place to mention here that in the present days of time no person likes to be a witness in a case against any criminal involved in heinous crime. Such apathy of citizen has been noted in the above quoted authority by the Honourable Supreme Court in the following words at page 1371: "It is common experience nowadays that due apathy, the public-at-large are hesitant to come forward to witness the recovery in criminal cases for fear of reprisals in view of the present deteriorating law and order situation in the country."
27. Thus the arguments of the learned Advocate for the appellants has no force.
28. The learned Advocate for the appellants has further stated that the bore of the weapon was not determined so as to attract the jurisdiction of Anti-Terrorism Court. In this 'Connection, it is pointed out that item No,5 of Schedule appended to the Anti-Terrorism Act, 1997 shows that if any offence punishable under Arms Ordinance is committed conjointly with any other offence of A.T.A. then the said offence is also triable by the Anti-Terrorism Court. In this case, the offence of Arms Ordinance was committed conjointly with the offence punishable under section 365-A, P.P.C. read with section 7 of A.T.A., therefore, the offence under Arms Ordinance was triable by the Anti-Terrorism Court, as such the argument has no force.
29. For the reasons discussed above, the appeals have no merits, hence the same are dismissed.
30. Above are the reasons for our short order dated 30-1-2003.