' ABDUR RAHMAN FARUQ PIRZADA, J.---This criminal revision is directed against the judgment dated 21-5-2007, passed by learned 1st Civil Judge and Judicial Magistrate Kandhkot, and the judgment dated 19-6-2007, passed by the learned Sessions Judge, Kashmore @ Kandhkot. The applicant was tried by 1st Civil Judge and Judicial Magistrate Kandhkot in the case vide Crime No,105/2001, Police Station A-section Kandhkot, for offence under section 13(e) Arms Ordinance, who convicted applicant for offence under section 13(e). Arms Ordinance and sentenced him to suffer three years' rigorous imprisonment and pay fine of Rs,5000 and in default in payment of fine, accused shall suffer further S.I for six months. The applicant preferred appeal before learned Sessions Judge Kashmorer@ Kandhkot, who dismissed the appeal while maintaining the conviction and sentence recorded by the learned trial court, but modified its judgment to the extent of grant of benefit in the light of section 382-B, Cr.P.0 in favour of the applicant, as a result whereof the period passed by accused being under trial prisoner at jail would be deducted from his conviction/ sentence recorded by the trial court. Being aggrieved, the applicant has filed present criminal revision application before this court.
2. The F.I.R. Was lodged on behalf for the State by Inspector/S.H.O. Iqbal Ahmed Shaikh of Police Station Kashmore at Police Station A-section Kandhkot on 8-6-2001 at 2120 hours. As per F.I.R. The mashirnama of recovery of crime weapon viz. Unlicensed pistol prepared on 8-6-2001, at 1900 hours was incorporated into F.I.R. The brief facts of the case as contained therein, are that, in presence of Mashirs Ghulam Hussain and Ali Bakhsh, complainant Inspector/S.H.O. Iqbal Ahmed of Police Station Kashmore interrogated the arrested accused Ali Nawaz in Crime No,85/2001, under, sections 302, 337-H(2) 337-F(i) 148, 149, P.P.C. And 13-D. A.O. Of Police Station. A-section Kandhkot, about the pistol used in that crime. During interrogation accused admitted and volunteered to produced the said pistol. Therefore complainant alongwith his other staff members and accused vide Rozamcha Entry No,33/8-6-2001, at 1530 hours, left the police station. At 4-30 p.m. They reached at bridge of BS Feeder Guddu, and took with themselves private persons namely Ghulam Hussain and Ali Bakhsh. Accused voluntarily produced one T.T pistol at 1900 hours from the eastern side of shed, inside his house situated in deh Malhio and disclosed that it was the same pistol which was used by him while causing butt blows to Zamir Chandio. The pistol was secured by the police and found to be in working condition. On enquiry, the accused disclosed that the same pistol was unlicensed. As such accused was arrested for offence under section 13(e) of Arms Ordinance.
3. A formal charge was framed and the accused pleaded not guilty and claimed trial. During trial the prosecution examined total two witnesses viz. Complainant Inspector/SHO Iqbal Ahmed Shaikh, who produced copy of mashirnama and copy of F.I.R., and P.W.2 Mashir Ali Bakhsh. Thereafter the prosecution side was closed vide statement by Prosecuting Inspector.
4. The statement of accused was recorded under section 342, Cr.P.C., in which accused had denied all the allegations levelled against him and pleaded innocence.
5. Learned trial court as well as the learned appellate court had formulated the following points for determination; Point No,
1. "Whether on 8-6-2001, at about 1900 hours, at house of accused situated in deh Malhio the accused voluntarily led police party and produced an unlicensed T.T pistol and magazine to the police before mashirs, as alleged."
' Point No,2. "Whether accused is guilty of the alleged offences."
6. Both the lower courts gave findings on the above points as under: Point No,
1. Affirmative.
' Point No,2. Accused convicted under section 245 (i) Cr P.C.
7. I have heard the learned counsel for applicant, as well as learned State counsel and have gone through the paper book.
8. Learned counsel for applicant argued that both the mashirs of recovery are close relatives of complainant in the main connected murder case. No mashirs were procured from the locality of the place of recovery, in accordance with the requirements of section 103, Cr.P.C. P.W.1, S.H.O. Iqbal Ahmed was admittedly posted at Police Station Kashmore, but the recovery of pistol was effected from the place situated within the jurisdiction of Police Station A-section Kandhkot however no such entry of arrival at Police Station A-Section Kandkot was kept in rozanmcha. Even the rozanmcha entries of arrival and departure pertaining to Police Station Kashmore were not produced during evidence. He further contended that Mashir.Ali Bux as per his address mentioned in his deposition was resident of Nawabshah city, which was situated far away from the place of recovery. The weapon in question was also not sent to the Ballistic Expert. Learned counsel also submits that the fact that applicant had already remained in jail for about one year and two months, may also be considered. He prayed for acquittal of applicant in the case.
9. On the other hand, learned State Counsel contended that the prosecution witnesses were impartial and fair and their testimony cannot be discarded on the basis of their relationship. It was clearly mentioned in the deposition of the P.W.1 S.H.O. Iqbal Ahmed that he had left police station vide Entry No,33. According to him, the pistol was recovered from the accused and was duly sealed at the spot.
10. I have considered the arguments of the learned counsel, in the light of evidence on record.
Admittedly complainant/SHO Iqbal Ahmed was posted at Police Station Kashmore whereas the alleged recovery of pistol was effected from within the jurisdiction of Police Station A-section Kandhkot. It is also admitted position that no entries of arrival as well as departure were made at Police Station. A-section Kandhkot, to the effect that S.H.O. Iqbal Ahmed of Police Station Kashmore had entered within the limits of Police Station A-section Kandhkot for the purpose of investigation recovery etc, in any particular case. It ought to have been proper on the part of S.H.O. Police Station Kashmore to keep such entries of arrival and departure at Police Station A-section Kandhkot, within whose jurisdiction the weapon was allegedly recovered from the house of accused, in order to lend the tinge of veracity to the prosecution case.
11. It is curious that the complainant neither appeared at police station A-Section Kandhkot personally for registration of F.I.R., nor he signed the F.I.R. As per evidence, he had sent the mashirnama of recovery through one constable to police station A-section Kandhkot.
12. The contention of learned counsel for applicant to the effect that the mashirs are closely related to complainant in the main connected case, finds support from the deposition of P.W./Mashir Ali Bux who categorically stated that the complainant in main crime No,85/01 Police Station A-section Kandhkot, was his close relative, whereas co-mashir Ghulam Hussain was his "Masat". It is not the case of prosecution that both the mashirs were residents of the locality of the place of recovery. As per deposition form of P.W. Ali Bux he was resident of Nawabshah city. Co-mashir, who was given up by the prosecution, was shown to be resident of deh Malho-dera Taluka Kashmore, as per mashirnama of recovery. No independent person residing in the locality of place of recovery was procured to be associated with the case as mashir. P.W.1 S.H.O. Iqbal Ahmed stated that Police Station Kashmore was situated in the center of the Kashmore city, and he had asked few persons at Kashmore to act as mashirs but they refused; however he did not take any action against those persons who refused to act as mashirs, in accordance with law. It is hard to understand as to why the legal action was not initiated from the side of complainant against the said persons, when they refused to accompany with him in the performance of his official duty. P.W./Mashir Ali Bux has stated that at the place of incident, 4/5 houses were situated near the house of accused Ali Nawaz, and after seeing police party, few villagers had come at the spot; the police had also asked those persons to act as mashirs, but they refused. As per prosecution case, the recovery of pistol was made from inside the house of accused. According to mandatory provisions of section 103, Cr.P.C.
Independent persons from the locality should be made mashirs, however Such provisions were prima facie violated.
13. It may be significant to note that according to the mashirnama of recovery which was' incorporated into F.I.R., it is stated that in presence of the mashirs, Inspector/S.H.O.' Iqbal Ahmed interrogated the arrested accused Ali Nawaz; although later it is also mentioned that at 1630 hours at bridge of BS Feeder Guddu he took two private persons as mashirs. However, from the bare reading of above wordings contained in the mashirnama/F.I.R., an anomaly is created. It is obviously for the prosecution to clarify any apparent anomalies or discrepancies in the record, and the benefit of any such discrepancies ought to go in favour of the accused.
14. It was also noted that the roznamcha entries of Police Station Kashmore were not produced in evidence. This fact, when considered in conjunction with the fact that even no such entry was made at Police Station A-section Kandhkot within whose jurisdiction the alleged recovery was made, would render the prosecution case as doubtful.
15. In the foregoing circumstances, I am of the view that the evidence on record was not properly appreciated by the learned trial court as well as appellate court, which amounted to misreading of evidence. The benefit of doubt ought to be given to accused in view of various discrepancies as pointed out in the aforesaid paras. Consequently the present criminal revision is allowed; the impugned judgments of learned trial court and appellate court are set aside. The applicant shall be released forthwith if he is not required in any other case.