IMAM BUX BALOCH, assailed the judgment dated 5-8-Sessions Judge, Kashmore in Se Qadir Bux Jakhrani, arising out Police Station Kashmore, for Ordinance, 1965, whereby the a suffer R.I. For three years and payment thereof it was directed two months more. Benefit of sec in favour of the appellant.
2. Precise facts of the pr A.S.-I. Nazir Ahmed left Pol subordinate staff, namely, PC driver PC Sardar Ali, vide Entry vehicle No.SP-5644, for the pur police party reached link roa 4-00 p.m., they noticed one per the police mobile tried to flee a and caught hold of him. On en Qadir Bux son of Nokhaf by cas Taluka Kashmore, having a bu right hand. The complainant too and found 800 live bullets in it, any valid licence/permit. As n scene of offence, the mashirna with the signatures of PC Azizullah and PC Ghulam Muhammad.
3. The complainant lodge appellant under section. 13(d) Kashmore and after usual investigation submitted challan.
4. At the initial stage, the Civil Judge and Judicial Magis formal charge against the appell pleaded 'not guilty' and claimed
5. From the perusal of re transferred front the Court of J.---Appellant Qadir Bux Jakhrani has 004. Passed by the learned Additional sions Case No.62 of 2004, re. State v. Of Crime No.167 of 2003 registered at offence under sections 13(d), Arms pellant was convicted and sentenced to to pay fine of Rs.5,000, in default of that the appellant shall suffer S.I. For ion 382-B, Cr.P.0 ; was also extended #tbs Kashmore to the Court of Additional Sessions Judge, Kashmore, for disposal according to law. Th learned Additional Sessions Judge, #tbe secution case are that on 24-12-2003 ce Station Kashmore along with his zizullah, PC Ghulam Muhammad and No.21, at 1515 hours, in a government ose of patrolling in the area. When the Geehalpur near RD-45, it was about on coming from Geehalpur and seeing ay, but the police party encircled him uiry the person disclosed his name as e Jakhrani, resident of Khaberoo Kosh, dle covered by a piece of cloth in his he same in his possession, opened it or which the accused could not produce private persons were available at the a of arrest and recovery was prepared h and PC Ghulam Muhammad.
F.I.R. No,167 of 2003 against the Arms Ordinance at Police Station ation submitted challan.
Case was challaned in the Court of 1st rate, Kashmore, who had framed the nt on 13-2-2004, to which the appellant rial.
Ord it appears that the case was then st Civil Judge & Judicial Magistrate, Kashmore framed charge against the appellant under section 13(d), Arms Ordinance on 18-5- 2004, to which the appellant pleaded 'not guilty' and claimed to be tried.
6. During trial, the prosecution examined A.S.-I. Nazir Ahmed, who is complainant, as P.W.1, at Exh.6, who produced mashirnama of arrest, personal search and recovery of bullets at Exh.6/A, copy of F.I.R at Exh.6/13; PC Azizullah as P.W.2 at Exh.7 and vide statement. Exh.8 dated 29-7-2004 the Public Prosecutor closed the prosecution side.
7. The statement of appellant under section 342, Cr.P.C. Was recorded on 29-7-2004, in which the appellant pleaded that he is innocent and has been falsely implicated. After hearing the parties, the impugned judgment was passed by the learned trial Court.
8. I have heard Mr. Muhammad Iqbal Mahar, Counsel for the appellant and Mr. Mus'ab Baleegh Dhamrah, State Counsel.
9. Mr. Muhammad Iqbal Mahar contended that during trial the prosecution has not produced Entry No.21. To prove that actually the complainant has left the police station at the relevant time. He contended that only on the sole ground of non-production of Entry No.21 whole prosecution case becomes doubtful. Non-production of entry goes into the root of the prosecution case, whether actually the complainant has left the police station or not.
10. On the other hand, Mr. Mus'ab Baleegh Dhamrah, State Counsel, was unable to controvert the submissions of Mr. Mahar and contended that the prosecution evidence is silent about the production of entry No.21, which is essential for the just decision of this appeal.
11. With the assistance of learned Counsel for the parties I have examined the evidence of the prosecution witnesses.
12. The evidence of complainant A.S.-I. Nazir Hussain is totally -silent. About the production of Entry No.21, under which the complainant left the police station for patrolling in the area. The complainant in his cross-examination admitted that he has not produced such entry, under which he left the police station for patrolling. He further admitted that there was a police picket at RD-45, a cabin of cigarettes is also. Situated there and the staff of Irrigation Department also reside at RD-
45. He admitted that he could not identify the bullets of 'Roger' company and called the store- keeper for proper identification, namely, Zakir Punjabi and the said store-keeper Zakir Punjabi had identified the bullets of 'Roger' company. He admitted that he had not mentioned the numbers of charger. He admitted that the weapon 303 is also called 8 mm. He admitted that he had not sealed the bullets at the spot.
13. P.W. PC Azizullah stat facts in cross-examination, as a 161, Cr.P.C. Statement was no know the bore of Roger. He fur the same facts and admitted the same mitted by P.W.1. He admitted that his recorded. He admitted that he did not her admitted that 10/15 magazines were also lying in the bundle. He adlmitted that the magazines had not been mentioned in the mashirnama. Fie admitted that the bullets were lying in two bags of fertilizer, which were tied in one bundle. He also admitted that these facts are not mentioned in the mashirnama. He admitted that the cloth in which bags were lying had not been produced in Court.
14. I have minutely gone through the prosecution evidence, which is inconsistent. Roth the police officials have made exaggerations and contradictions in their evidence. P.W.2 Azizullah has made further exaggerations in his evidence about the availability of 10/15 magazines. After considering the prosecution evidence, I am of the view that the prosecution has failed to produce trustworthy and confidence-inspiring evidence. The Entry No.21 has not been produced during trial. Such lacunae in the case goes into the root of the prosecution case. The exaggerations and improvements and contradictions in the evidence of two police officials also create much doubt in the prosecution case and benefit of such doubt is to be extended in favour of the accused/ appellant. In such circumstances, I am of the view that the prosecution A has failed to establish its case beyond any shadow of reasonable doubt and if any doubt created, the benefit of such doubt is to be extended in favour of the accused/appellant, as held in the case of Tariq Pervez v. The State, reported in 1995 SCM R 1345. Following the dictum laid down in the case of Tariq Pervez (supra), benefit of doubt is extended in favour of the appellant.
15. In view of the above, this appeal was allowed, the conviction. And sentence recorded by the trial Court were set aside and the appellant was acquitted from the charge, vide short order dated 5-4- 2011. Above are the reasons in support of such short order. .