' The appellant has been convicted under section 13-D, Arms Ordinance for being in possession of a revolver and 4 live bullets. He was sentenced to 3 years' R. I.
' The prosecution had alleged that the Police Party consisting of the Investigating Officer Muhammad Azam, one D. S. P. And the other S. H.
0.s alongwith subordinate staff was investigating in the Crime No, 141/73 under sections 366, 363 and 382, P. P. C. Against the present appellant. They received a spy information that the appellant was going with the abducted girl somewhere in Hala, the Police Party, therefore, proceeded on 30.11-1973 from Kotri for Hala and they took two Mashirs Wali Muhammad and All Muhammad with them. The accused was arrested and on his personal search a revolver and 4 live bullets were recovered from the fold of his trousers. Mashirnama was prepared in the presence of mashirs and was signed by them.
' The prosecution examined Investigating Officer Muhammad Azam Mashir Wali Muhammad and A.
S. I. Yousuf in support of it's case'. Muhammad Azam proved that the revolver had been recovered from the fold of trousers of the appellant. However, he made a misstatement in his deposition to the extent that the appellant had also been sent up in Crime No, 171/73 but in cross-examination he had to admit that the said case was found to be false and the appellant was not challaned in that case. Therefore, the deposition of this P. W. Is not completely above board as there is one misstatement made by him. There is another minor fact in respect of which this S. H.
0. Exaggerated and that is that he deposited that the appellant tried to run away after seeing the Police Party but the same was not supported by the Mashir Wali Muhammad. Mashir Wali Muhammad did not support the recovery of the revolver from the appellant but he admitted the arrest of the appellant and his signature on the mashirnama. He was declared hostile and cross- examined but nothing came out of that cross-examination, and he persisted in his statement that the revolver was not recovered from the appellant in his presence but it was shown to him at the Police Station. He also deposed that the appellant did not run after seeing the police. Therefore, the position was that the recovery of the weapon was proved by the statement of the S. H.
0. But the mashirs did not support that. The prosecution, thereafter, examined one A. S. I.
Muhammad Yousuf who was supposed to be in the subordinate staff accompanying the Investigating Officer and other Police Party. He did support the recovery of the revolver from the possession of the appellant but the difficulty in the case of this witness is that he was neither mentioned as a Police Officer accompaning the Police Party in the mashirnaina where other Police Officers by name are mashirs of the mashirnama. Moreover, he has deposed to the accused running away one furlong but the same had been denied by Mashir Wali Muhammad. He has also made a statement that the S. H.
0. Himself drafted the mashirnama with a pencil but corrected himself by saying that he did not remember whether the mashirnama was drafted by Muhammad Azam or not. Muhammad Azam had on the other hand made a clear statement that be had dictated mashirnama to one of his subordinate staff. In these circumttances the presence of this P. W. Muhammad Yousuf at the time of the preparation of the mashirnma doesmot seem to be fully established. Moreover, I cannot understand as to why the prosecution did not try to examine Mashir Ahmed Ali, when the other Mashir Wali Muhammad had been declared hostile and he did not support the prosecution.
I am not adverse to believing the statement of a Police Officer if the same is free from any doubt but in a case where the Police Officers thus take two mashirs with them and one of the mashirs does not support the case of the prosecution and the other mashir is not examined by the prosecution then it would not be safe to convict a person on the basis of the statement of two Police Officers one of whom is neither mentioned in the F. I. R. Nor in the mashirnama and the other makes some exaggeration. The mashirnama and the F. I. R. Had shown that one D. S. P. And two S. H. Os. Had accompanied Muhammad Azam Investigating Officer in the search, and therefore, the prosecution should have examined the best evidence which consisted of these Senior Officers instead of examining a man who was only an A. S. I. And was bound to support the S. H.
0. Of his Police Station.
' Reliance is placed'by Mr. Muhammad Hayat Junejo on PLD 1979 Kar. 31, where one of the learned Judges of this Court had set aside the conviction in respect of recovery of a fire-arm where the recovery had not been witnessed by any mashir. With respect agreeing with that decision I set aside the conviction in this case and acquit the appellant. The bail bond furnished by the appellant and his surety will be treated as cancelled.
' No one appeared for the State.