SYED ZAKIR HUSSAIN, J.---Through this appeal, the appellant has called in question the judgment dated 11-2-2008, passed by the learned Assistant Sessions Judge, Kashmore, in Sessions Case No.6 of 2007, re; St. v. Sanaullah, for the offence of section 13(d) of the Arms Ordinance, based upon F.I.R No.15 of 2007, of Police Station Miani Katcho alias Badani, whereby the appellant was convicted thereunder and sentenced to suffer R.I for seven years, as also, he was ordered to pay fine of Rs.5,000, or in default of such payment, to suffer R.I. For one month.
2. The case of the prosecution is that the complainant Rano Bhutto reported to the police at Police Station Miani Katcho alias Bado, that two persons (including appellant), were caught hold red- handed, while being present for the purpose of commission of theft in his house along with another who could not be apprehended and managed to escape, as also, the complainant secured from the possession of one of the apprehended culprits, his unlicensed kalashnikov rifle with fifteen live bullets. The F.I.R. Further shows that the complainant, took the apprehended persons and the secured property to the police station, where the case was registered on two counts respectively under sections 457, 380, 511, P.P.C. And 13(d) of the Arms Ordinance, and after investigation, the police charge-sheeted the three persons including the said two apprehended and another who absconded at the relevant time, jointly in one case pertaining to sections 457, 380, 511, P.P.C,, whereas the present appellant was charge-sheeted additionally for an offence under section 13(d) of the Arms Ordinance in the competent Court of law through a separate challan. Both the cases were tried and disposed of with two altogether different results. The case pertaining to sections 457, 380, 511, P.P.C., bearing Crime No. 14 of 2007, tried by learned 1st Civil Judge and Judicial Magistrate, Kashmore, stands disposed of by way of judgment dated 16-4-2008, in acquittal of the said two charge-sheeted persons, whereas the same was kept on dormant file for the absconding accused. In the other case pertaining to the offence of section 13(d) of the Arms Ordinance, the present appellant entailed conviction and was awarded punishment as stated above. The appeal has been preferred against the said judgment of conviction on the facts and grounds mentioned therein.
3. I have heard the learned counsel appearing for the parties and accordingly, by short order dated 22-11-2010, allowed the appeal as prayed for, for the reasons to follow.
4. The bone of contention of the learned counsel for the appellant is that the said weapon was not secured from personal possession of the appellant by the police under any memo. As per the report, the complainant was in possession of the same. It is he, who produced the same along with the appellant to the police for action under his report. Technically, the learned counsel is right that the crime weapon was not secured by the police from personal possession of the appellant and, therefore, the offence under section 13(d) of the Arms Ordinance against him is not apparently made out in its strict terms, unless the complainant is proved to have secured the same from the personal possession of the appellant beyond shadow of any reasonable doubt. The learned counsel further pointed out that the memo of arrest and recovery in both the cases is same and in the main case when the said memo was produced as piece of evidence, the Court disbelieved the same and disposed of the case in acquittal as stated above. The learned counsel contended that the benefit of the acquittal in the connected case is extendable to the appellant in the instant case (of section 13(d) of the Arms Ordinance), as a matter of law and justice, particularly when he was not found in physical possession of the crime weapon in question but it was produced by the complainant with his own story, which stood unestablished in the competent Court of law in the case referred to above, reflecting adversely to the case of the prosecution in the instant case, and most particularly when no expert's report obtained in the matter, and the crime weapon was left unsealed as well, and therefore, the case was not open in such circumstances to have had the ending that has been given thereto by the learned trial Court, for a case of benefit of doubt was obviously there as extendable to the appellant as a matter of fairness. The learned counsel cited the case of Mataro v. The State (1984 PCr.LJ 1724), Deedar Ali Gopang v. The State 2001 YLR 462, and that of Gul Muhammad v. The State (2005 PCr.LJ 1675) (Quetta); which are applicable in matter in hand very mach. The head-notes of each of them are as under:--
(i) 1984 (PCr.LJ 1724): Recovery of country made unlicensed pistol and cartridges. Prosecution witnesses inimical and interested to accused. Evidence of Investigating Officer also unreliable due to suspicious manner in which he conducted investigation. Method of recovery also ridiculous. Conviction and sentence set aside.
(ii) 2001 YLR 462 Recovery of T.T pistol of .30-bore. Property has not been sealed at spot and this fact has not been controverted by learned counsel for State. No weapon has been shown to appellant at the time of his examination under section 342, Cr.P.C. Weapon has not been sent to Ballistic Expert for his report. Whole case of prosecution depends upon Entry No. 6, whereby prosecution has established its case that police party left police station for patrolling and found appellant going armed without license. There are illegalities on the part of prosecution and Court give benefit of doubt to appellant.
(iii) (2005 PCr.LJ 1675) (Quetta): Possession of arm. Nature and scope. Physical possession of arm and its use by a person without holding a license or a permit constitutes an offence under the law. Mere constructive and presumed control of the arm does not constitute a liability which the law might, for other purposes, import into the facts of the case.
5. The learned State Counsel though supported the conviction and opposed the appeal, but on no sound reasons.
6. In view of the above, the case is doubtful and the impugned judgment is not sustainable.
Therefore, the appeal was allowed and the impugned judgment was set aside by the short order dated 22-11-2010, for the reasons in hand.