1. ' MRS. SYEDA TAHIRA SAFDAR, J.---This is a jail appeal filed by convict Faiz Muhammad, wherein it is his contention that he has been falsely involved in present case, no independent witnesses were made during the proceedings by the police. The trial court has conducted the proceedings contrary to law and facts. The recovered arm was not sent to Laboratory for analysis. False evidence has been given against him. He has prayed for setting aside of conviction, while he be acquitted of the charge.
2. ' As per record an F.I.R. No,54 of 2008 Police Station Saddar Mastung was lodged on 2-9-2008 with averments that on spy information when the police officials reached at Killi Durra Khan at 1-30 a.m.
3. They saw a person standing in open plot in front of house of one Juma Khan in armed position, who was apprehended and on inquiry he told his name as Faiz Muhammad son of Muhammad Rahim, while one Kalashnikov along with two magazines and 39 live cartridges were recovered from his custody, for which he failed to produce any license or permit.
4. ' After completion of investigation case was challaned. Charge was framed for the offence punishable under section 13-E of Arms Ordinance, 1965, which was denied by the accused. Four witnesses were produced by the prosecution, while in defence no evidence was produced, nor the accused opted to record his statement on oath. On completion of trial the appellant/ accused was convicted of the charge and sentenced to undergo imprisonment for a period of three years with fine of Rs.2000, while in default he has to undergo further imprisonment for a period of six months.
5. Being aggrieved of the order he preferred present appeal praying thereby for his acquittal.
6. ' The main contention of the appellant is that he has been involved in present case falsely, there is mala fide on the part of police officials, while no independent witness was made at the spot, further recovered arm and ammunition were not sent for chemical analysis.
7. Counsel for the parties were heard, while record was perused. It is apparent from perusal of impugned judgment that the trial Court completely relied on evidence produced from side of the prosecution and come to the conclusion that as per statements of the witnesses the Kalashnikov was recovered from accused/appellant when the police raided the house of the accused at Killi Durra Khan, while on 2-9-2008 when the police got information about commission of a murder at Killi Durra Khan, when they reached there they saw accused/present appellant standing there holding Kalashnikov in his hands, whereby he was arrested and same was snatched from his hands, which was unlicensed. The presence of independent witnesses not necessary, it is held by the learned trial Judge, he gave reasoning to the same effect. It may be so, but from perusal of record it is apparent that the contents of F.I.R. Are not corroborating the view and facts taken and described by the learned trial Judge while disposing of the matter. There is nothing in the F.I.R.
8. About getting information about murder of some person, and about effecting recovery of arms from B possession of appellant/accused when his house was raided by the police. Rather as per F.I.R. There is recovery of alleged Kalashnikov along with magazines and live cartridges from possession of the appellant/ accused, while he was standing in open plot situated in front of house of one Juma Khan. Though the fact of involvement of appellant/accused in a murder case is not specifically alleged by the prosecution witnesses, but as per P.W.1 S.H.O. Told him about a person wanted in a murder case, whereupon he along with him reached at Killi Durra Khan and arrested the appellant/accused. P.W-II stated that spy information was given to them that an armed person was standing in front of house of one Juma Khan at Killi Durra Khan, where accused was arrested, having in possession Kalashnikov. P.W-HI only stated that they reached Killi Dura Khan along with S.H.O. Where a person was standing, who had a Kalashnikov. P.W-IV is investigating officer, while recovery was not effected in his presence. He admitted during cross-examination that a murder case was against the accused/ appellant. As per cross-examination made to P.W-II, he was investigating officer in murder case against the appellant/accused; he further admitted that said case was registered against unknown person.
9. ' From this whole set of evidence it is apparent that some murder case was also registered against the accused person i,e, present appellant. As per accused also, during examination made under section 342, Cr.P.C, he was called in respect of murder of his brother at Thana, while his own brothers and relatives in collaboration with the police planted Kalashnikov against him. He asserted his innocence. From these facts it seems to be that the recovered Kalashnikov may be alleged crime weapon of murder case. But this fact is not incorporated in the F.I.R. Of instant case; rather it is only shown as an unlicensed arm and ammunition. Apart from the same it is the prosecution which is required to prove the fact of recovery of alleged articles/arms from possession of the accused person. Though the witnesses have deposed that the accused person/appellant was arrested from the open plot situated in front of house of one Juma Khan, having in possession a Kalashnikov along with two magazines and 39 live cartridges at 1-30 A.M. At night. There is no explanation on the record from prosecution side, about reason of presence of the accused/appellant in front of some specific house at such odd hours of the night. There is no explanation that where were the Kalashnikov and two magazines at time of recovery. P.W.III though produced the recovered Kalashnikov as Art: I, but the alleged magazines and cartridges are not produced before the court. The perusal of relevant statement of P.W.III reveals that though the witness asserted that the recovered articles were made as article-I, while as per recovery memo Exh. P/3-A, the recovered articles were placed in parcel and seal was affixed on it. But these articles, asserted to be sealed in parcel, were not produced during course of the trial. No sealed parcel was produced nor opened before the court. Though the trial Court has recorded that Kalashnikov is the same which is present in the court. The observation required to be made by the court while exhibiting the articles are not made by the trial Court, which is an error on its part. An adverse inference can be drawn from the same.
10. ' Keeping in view the above mentioned facts, the recovery of alleged articles from possession of the appellant/ accused, is not established free from all doubts, the benefits of the same surely goes in favour of the accused person/appellant, which has not been exercised by the trial Court.
11. Furthermore, the trial Court also failed to observe the contradictions and flaws present in the statements of the witnesses, rather without discussing the evidence came to the conclusion that the evidence was corroborating, and having no defect at all. In view of above discussion it is held that the prosecution has failed to establish the charge against the accused person/appellant while the trial Court has not come to the right conclusion, which cannot remain in field.
12. ' Thus in the circumstances the appeal is liable to be accepted, while the impugned order is liable to be set aside. Therefore, the appeal is hereby accepted, impugned judgment made on 28-2- 2009 by the trial Court is set aside. The appellant/accused namely Faiz Muhammad son of Haji Muhammad Rahim is acquitted of the charge under section 13-E of Arms Ordinance, 1965. He be released at once in case F.I.R. No: 54 of 2008, Police Station Saddar Mastung, if not required in, any other case.