1. ' SYED ZAWWAR HUSSAIN JAFFERI, J.---Appellant Mehar son of Muhammad Yakoob was convicted vide judgment dated 1-2-1991 by the learned Additional Sessions Judge, Gambat in Crime No.29 of 1996 of Police Station Gambat under section 13-E Arms Ordinance in Sessions Case No.240 of 1996 by convicting the appellant to suffer R.I. For five years and to pay fine of Rs.10,000 in case of default in payment of fine, he should suffer R.I. For one year more on the charge of having possession/control of rifle with magazine without number which was recovered from an open place near Tubewell `Kasi' during the interrogation in Crime No.23 of 1996 in an offence under section 17(3), Offences Against Property (Enforcement of Hudood) Ordinance, 1979.
2. ' The appellant has challenged the conviction and sentence awarded by learned trial Court through this appeal. The appellant has also preferred Jail Appeal being No.9 of 1999 therefore both Appeals are disposed of with the common judgment. Brief facts as enumerated in the F.I.R. Are that the F.I.R. Was lodged by complainant S.I.-P./S.II.O., Mumtaz Ali Khuhro on 29-4-1996 at 1-45 p.M.
3. Alleging therein that he along with A.S.-I. Nadir Ali Shah, A.S.-I. Muhammad Waris, A.S.-I. Ahmed Hussain, PC Turab Ali, PC Barkat Ali, PC Muhammad Hussain and PC Muhammad Ibrahim left police station vide Entry No.11 of 1996 for the purpose of investigation in Crime No.23 of 1996 under section 17(3) Offences Against Property (Enforcement Hudood) Ordinance, 1979. It is further disclosed in the prosecution case that the present appellant was already confined in custody in Crime No.23 of 1996 and confessed his guilt and prepared to produce the crime weapon viz. Rifle which was used in Crime No.23 of 1996 and led the police party in Police Mobile bearing No.4528 SP, which was driven by PC Anwar Ali. The appellant led the police party towards an abandoned house near a watercourse and took out a rifle of 303 with 11 bore from Kasi. The appellant failed to produce licence therefore such Mashirnama was prepared in presence of Mashirs A.S.-I. Nadir Ali Shah and A.S.-I. Muhammad Waris, therefore the complainant/S.H.O. Brought the accused along with case property at police station where such F.I.R. Was registered against the accused on behalf of the State.
4. ' Police after usual investigation submitted charge-sheet in the Court having jurisdiction. After legal formalities the trial Court proceeded with the case and framed the charge against the appellant to which he pleaded not guilty and claimed for trial.
5. ' In support of prosecution, the prosecution has examined P.W. Nadir Ali Shah as Exh.4, he produced Mashirmana of recovery of Rifle and Magazine as Exh.4-A. P.Ws. A.S.-I. Ahmed Hassan, PC Turab Ali, PC Barkat Ali, were given up by the prosecution. P.W. Muhammad Ali was examined as Exh.B-7 he has produced F.I.R. As Exh.7-A. Thereafter learned DDA closed the prosecution side vide his statement as Exh.8.
6. ' The trial Court recorded the statement of the appellant under section 342, Cr.P.C. As Exh.9 in which he denied the allegations levelled by the prosecution and stated that about 3 years back he was arrested from his house and police foisted the weapon and appellant was also involved in Crime No.23 of 1996 and he prayed for justice. Appellant did not lead any evidence in his defence nor he examined himself on oath. Learned trial Court after hearing the party advocates delivered the judgment by convicting the appellant in the above mentioned crime, hence this appeal.
7. ' Mr. Shaikh Abdul Ghani, learned Counsel for the appellant has argued that the recovery is not proved by the independent Mashirs as required under section 103, Cr.P.C. He has further argued that the recovery is said to have been taken place on the pointation of the aforementioned appellant from an open place viz. Near Tubewell, which was not in exclusive possession of the appellant, the said rifle was not sealed at the spot nor it was sent to the Forensic/Ballistic Expert for its examination. Learned counsel for the appellant has placed on record the certified true copy of the Special Case No.120 of 2001 in Crime No.23 of 1996 of Police Station, Gambat whereby the appellant has been acquitted by the learned Judge, Special Court, STA Khairpur, vide judgment dated 4-12-2002 as the prosecution version in Crime No.23 of 1996 of Police Station, Gambat was disbelieved. In the said judgment, it is observed that complainant and other P.Ws. Examined by the prosecution have exonerated all the accused for the commission of the robbery but it is subsequent by the said witnesses disclosed that some unknown persons with muffled faces had committed the robbery at the time of incident. It is finally argued by learned counsel for the appellant and prayed for the acquittal of the appellant, as the prosecution has failed to bring any tangible evidence against the appellant for awarding the punishment the impugned judgment dated 1-2-1999 may be set aside. In support of his arguments he has relied upon the case of Abdul Ghani v. The State (2002 M LD 1075), case of Abdul Sattar v. The State (2002 PCr.LJ 51) and the case of Muhammad Mukhtar v. The State (1999 PCr.LJ 222).
8. ' On the other hand Mr. M. Mehmood Khan S. Yousifi, learned A.A.-G for the State is unable to controvert the grounds raised by learned Counsel for the appellant. He concedes that the appellant has been acquitted in the main crime being Crime No.23 of 1999 and all the P.Ws. Have candidly deposed that the offence was committed by unknown persons whose faces were muffled at the time of committing the robbery, learned A.A.-G. Has not supported the impugned judgment.
9. ' I have heard both learned counsel for the parties and examined the material available on record and the evidence adduced by the prosecution witnesses: Admittedly, the place of recovery is an open place and cannot be said that it was place exclusively in possession of the appellant. The recovery of .303 Rifle was not sealed at the spot. The Entry No.11 dated 29-4-1996 through which the police party have left the police station along with the accused and other police officials to the pointed place where the recovery is said to have been effected but said entry was not brought on record during the trial proceedings. The crime weapon was not sent to the Ballistic Expert, no independent Mashirs were associated on the factum of recovery.
10. Admittedly, no private person was associated with the proceedings and there is no proof that any efforts were made to persuade any body from the locality to act as witnesses of the recovery which a flagrant violation of provision, of section 103, Cr.P.C. It is well settled proposition of law that the conviction under section 13-D Arms Ordinance cannot be maintained unless the weapon allegedly recovered were sealed at the spot and the opinion of Forensic/Ballastic Expert is produced on record to prove that the weapon so recovered, was, in fact functional that weapon was recovered from the appellant. The reliance can be made to the cases reported in 1996 PCr.LJ 1410, 1997 M LD 1632, and 1998 PCr.LJ 1368 in respect of the non-sealing of the weapon at the spot.
11. Reference may be made to case-law reported as Loung through Superintendent Central Prison, Hyderabad v. The State (1999 PCr.LJ 595) and case of Sajjan v. State (1998 PCr.LJ 1299). The appellant was arrested in main case on 20-4-1996 in main Crime No.23 of 1996 he was already in custody in the said crime but during the interrogation the appellant led the police party on 29-4- 1996 to produce the crime weapon used in the main offence being Crime No.23 1996 it means that he was in custody for 9 days. This fact, thus, rendered the alleged recovery of weapon extremely doubtful.
12. ' In view of the above discussion I am of the view that the prosecution has failed to prove its case beyond reasonable doubt. Therefore I give him benefit of doubt, his conviction and sentence awarded by the trial Court is set aside. The appeal is allowed, the appellant is already on bail by this Court while admitting his bail vide order dated 4-3-1999 therefore Criminal Jail Appeals Nos.9 and 13 of 1999 are disposed of in the above terms. The bail bond furnished by the appellant and his surety are discharged.