' IRFAN SAADAT KHAN, J.----The appellant was tried and convicted vide judgment dated 31-8-2009, passed by the learned Sessions Judge, Jacobabad, in Sessions Case No,838 of 2008, in F.I.R bearing Crime No,77 of 2008 of Police Station Mouladad under section 13(e) of Pakistan Arms Ordinance, 1965 and sentenced to suffer rigorous imprisonment of three yeaRs, Benefit of section 382-B, Cr.P.C.
Was extended in his favour.
2. In the nutshell, it is the case of the prosecution that the appellant/accused while in custody of Mouladad Police led SIP Aijaz Ali Farooqui to the recovery of an unlicensed Kalashnikov allegedly used by him in the commission of crime viz., murder from dense bushes at the path of Jattak Wah (minor canal), situated at Naudhan diversion, with magazine in presence of private mashirs, namely, Khadim Hussain and Hamza Ali, both by caste Katohar.
3. From the perusal of the record it appears that the Kalashnikov allegedly recovered on the pointation of the appellant/accused was not sealed on the spot. The appellant was arrested on 7- 10-2008 and he led to the recovery of the said Kalashnikov after seven days of his arrest i,e,, on 14- 10-2008. The Kalashnikov allegedly recovered on the pointation of the appellant was dispatched for the Ballistic Expert opinion on 22-10-2008, but was received in the said Division on 16-3-2009 i,e,, after about five months of the said dispatch, for which there is no explanation on the record. Copy of daily diary, under which the police along with the appellant allegedly went to the place of recovery has also not been produced. Mashir Hamz Ali is related to the complainant of main murder case. In the case of Arif Khan v. The State 1998 PCr.LJ 1287, it was observed by a Division Bench of this Court that if the recovery memo did not show that the weapons were sealed at the spot, the case becomes doubtful. Furthermore, the appellant has been acquitted in the main murder case while extending him benefit of doubt. In such circumstances, I am of the considered view that the prosecution has failed to prove the present charge against the appellant. The appeal is, therefore, allowed, the impugned judgment passed by the learned trial Court is set aside and the appellant is acquitted of the charge. He is directed to be released forthwith if not required in any other case.