GHULAM MUHAMMAD KOREJO --J.-Accused appellant Hashim son of Lahno Khushk was tried for an offence under section 13-D of the Arms Ordinance, 1965, for having been found in possession of an unlicensed single---barrel gun in contravention of the provisions of section 8 of the Ordinance, by the III Additional Sessions Judge, Sukkur, and was convicted for that offence and sentenced to rigorous imprisonment for a period of two years. Aggrieved by the judgment of conviction and sentence, he has come in this Jail appeal.
2. The facts of the prosecution case briefly stated are, that A: S. I. P. Muhammad Malook of Dad Laghari Police Outpost, while investigating a murder case against the accused/appellant Hashim and others arising out of Crime No. 92 of 1975 of Mirpur Mathelo Police Station, secured a single-- barrel gun from the possession of the accused/appellant for which he had no licence. On 2-9-1975 at about 6 p. m., while A. S. I. P. Muhammad Malook was present at Police Outpost, Dad Laghari, P.
W. Ranjho went to him with the accused/appellanj Hashim, who was carrying a gun. The accused/ appellant Hashim appeared before P. W. Ranjho confessing that - he had killed Mst. Puni with the gun and offered himself to be produced before Police. P. W. Ranjho took him alongwith the gun at the Police Outpost, Dad Laghari and produced him before A. S. I. P. Muhammad Malook, who arrested the accused/appellant and secured the gun from him vide mashirnama Exh.
6. He made entry in the Rozenamcha maintained at the Police Outpost, Dad Laghari and on the following day viz. 3-9-1975, went at the main Police Station, Mirpur Mathelo and registered the offence in the case against the accused/appellant in the book maintained under section 154, Cr. P. C. Vide F. I. R. Exh. 7.
He recorded statements of the witnesses and challaned the accused/appellant in the Court for the offence abovementioned.
3. The accused/appellant denied all allegations against him and claimed to have been falsely implicated on account of enmity with the witnesses including the Investigating Officer over the land. He denied to have appeared before P. W. Ranjho alongwith the gun and further denied to have produced the gun at the Police Outpost, Dad Laghari having been recovered from him by A. S. I. P. Muhammad Malook. He has not pleaded guilty to the charge and has not examined any evidence in his defence.
The point for consideration is as to whether the accused/appellant was found going armed with an unlicensed gun and the same was recovered from him in the manner alleged by the prosecution.
In that respect the prosecution has examined the evidence of A. S. I. P. Muhammad Malook Exh. 5, P.
W. Dur Muhammad Exh. 8 and P. W. Ranjho Exh.
10. On examination of this evidence, appearance of the accused/appellant alongwith the gun before P. W. Ranjho confessing the guilt to have murdered Mst. Puni by firing at her, appears doubtful, with the result that the recovery of the gun is not proved by the prosecution. According to the Investigating Officer P. W. Muhammad Malook A. S. I. P., P. W. Ranjho produced the accused/appellant alongwith the gun at Dad Laghari Police Outpost where he was available, as the Incharge of the Police Outpost on 2-9-1975, whereas P. W. Ranjho deposes that he produced the accused/appellant Hashim alongwith the gun before A. S. I. P.
Muhammad Malook at main Police Station, Mirpur Mathelo, which admittedly is far away from the Police Outpost Dad Laghari. It is not possible to reconcile their statements in that respect and they clearly create an irresistible impression that the accused appellant Hashim was never produced alongwith - the gun before A. S. I. P. Muhammad Malools, either at Dad Laghari Police Outpost or at the main Police Station, Mirpur Mathelo. Apart from it, the accused/appellant had no reason either to confess his guilt or to appear alongwith the gun before P. W. Ranjho, who admittedly is not his Nekmard. 'P. W. Ranjho is a cultivator and he admits that the Nekmard of his village is Mitha Khan.
He further admits that he did not bring the fact to the notice of his Nekmard Mitha Khan. He further admits that Police Station, Mirpur Mathelo is at a distance of about 12/14 miles from his village.
According to him he took the accused/appellant alone to the Police Station and they went there by foot. It is strange that P. W. Ranjho without informing anybody, even his Nekmard Mitha Khan, himself being a cultivator took the accused/appellant to the Police Station. According to P. W.
Ranjho the accused/appellant came to him in the afternoon, while murder of Mst. Puni was committed one day earlier. There is no dispute that the incident of murder took place on the night between 28th and 29th of August, 1975, and that the accused/appellant appeared before P. W.
Ranjho on 2-9-1975. His version abovementioned completely belies the prosecution version to that effect that the accused/appellant appeared before him on 2-9-1975. What we further find is, that P.
W. Ranjho deposes in the first instance that after the accused/appellant Hashim went to him he took him to the police station. He does not say that he had gone to him with a single barrel gun. On further questioning, he has deposed that the accused/appellant had gone to him with a Single- barrel gun and the evidence on the record as discussed above create serious doubt about his subsequent statement that the accused/appellant had gone to him alongwith a gun.
5. Coming to the recovery of the gun, the prosecution case; is, that it was recovered from the accused/appellant by A. S. I. P. Muhamma.d Malook in presence of mashies Dur Muhammad and Aitbar Khan. The prosecution has examined only Dur Muhammad. And not Aitbar Khan. Dur Muhammad admits that he :s driver by occupation but denies, though suggested to him, that he is driver of the Investigating Officer A. S. I. P. Muhammad. Malook. According to him he went to the Police Outpost, Dad Laghari to meet the police constable who was his friend when he was made a mashie of the recovery. He has deposed that the recovery, of the gun was effected at Dad Laghari Police Outpost, though as already stated above, P. W. Ranjho, who produced the accused/appellant. Has deposed that the recovery was effected at the main Police Station, Mirpur Mathelo, where he bad produced the accused/appellant before A. S. I. P. Mohammad Malook. What we find, is that Dur Muhammad, the mashir of the recovery, in view of the above discussion, appears to be convenient witness for police as he. Was a driver by profession and according to his own version, he had gone to the Police Outpost to meet the police constable, who was his friend and that he had been made to state, what appears, had been dictated by the Police. In our view, therefore he seems to be a set-up witness and no reliance can be placed on his evidence. The irresistible conclusion therefore, would be that the evidence of the above-mentioned prosecution witnesses cannot be safely relied upon and no conviction can possibly be based on such evidence.
The learned State counsel Mr. Murtaza Hussain, for such reasons, has also very rightly not supported the prosecution case.
6. In the result, the accused/appellant is acquitted and his appeal is allowed. He be set at liberty forthwith, if he is not required in any other case.