' RIAZAT ALI SAHAR, J.---The applicant/appellant Alam Sher son of Ahmed Khan has been involved in Crime No,26 of 1998 of Police Station Garho, District Thatta for offence punishable under section 13-E, Pakistan Arms Ordinance, 1965. The case was tried by learned II-Civil Judge and FCM, Thatta, whereby the applicant was convicted and sentenced for the period already undergone in custody i.e, from 10-12-1998 to 29-2-2000 vide judgment dated 23-11-2002. Consequently the applicant/appellant filed a Criminal Appeal before the learned Sessions Judge, Thatta, which was entrusted to the 1st Additional Sessions Judge, Thatta and was dismissed on 24-2-2004. Later on, the applicant/appellant has filed a Criminal Appeal in this Court, which was converted into Criminal Revision Application vide short order dated 29-9-2012.
2. The relevant facts as per prosecution case are enumerated that the applicant/accused Alam Sher along with co-accused Punhoo son of Qadir Bux was arrested by Garho police in F.I.R. Bearing Crime No,24 of 1998 for offence punishable under sections 147/148/149/504/302, P.P.C. During interrogation of the crime, the applicant obviously confessed his guilt and was ready to produce the crime weapon. On 1-12-1998, complainant along with applicant Alam Sher, co-accused Punhoo and police personnel left the police station vide D.D. Entry No,13 at 1600 hours and reached at pointed place viz. "Lai bushes", near the shrine of Chuttan Shah, where both the accused persons jointly produced a plastic bag containing one TT Pistol of .30 bore bearing No,P-297 loaded with four live bullets and one country made pistol of .12 bore without number along with four live S.G.
Cartridges in presence of Mashirs Muhammad Rahim Soomro and Khaman Soomro as per mashirnama. Both the accused persons failed to produce license of the weapons, therefore, separate cases were registered under section 13-E, Pakistan Arms Ordinance, 1965. After usual investigation, final report under section 173 Cr.P.C. (challan) was submitted before the trial Court.
3. The copies required under section 241-A, Cr.P.C. Were supplied to the accused as Exh.1, a formal charge was framed against accused as Exh.2, to which he pleaded not guilty and claimed trial.
Such plea was recorded as Exh.3. Prosecution gave up P.W. Muhammad Jurial vide statement as Exh.4 and examined Complainant (P.W.1) Qurban Ali Magsi as Exh.5, who produced mashirnama of arrest and recovery and also produced F.I.R. As Exhs.5/A and 5/B respectively, prosecution also gave up co-machir Khaman vide statement as Exh.6 and examined P.W.2 Mohammad Rahim as Exh.7, thereafter on 9-8-2001 prosecution closed its side vide statement as Exh.8. Statement under section 342, Cr.P.C. Of the accused was recorded as Exh.9, in which accused denied the allegations levelled against him after recording evidence. The accused examined himself on oath under section 340(2), Cr.P.C. At Exh.10, in which he claimed his false implication.
4.It is contended by the learned counsel for the applicant that there is a joint recovery of T.T. And country made pistols said to have been produced in a single bag by the applicant and co- accused Punhoo from "Lai Bushes" which is an abandoned area, therefore, inadmissible under the law, no departure or arrival entry whereby the police left the police station for the purpose of recovery as well as daily diary regarding conducting interrogation after bringing the accused from lock-up, are available on record. He further contended that the judgment passed by the trial Court as well as Appellate Court was on the basis of presumption, assumption, surmises, misreadings and illusions of evidence and the same is also illegal and not free from contradictions, biosity, and discrepancies. All those points were not considered by the Appellate Court, though the Appellate Court does have wider scope for deciding criminal appeals. Counsel has also pointed out that no person can be convicted by any trial Court for the period i.e, already gone under custody without specifying a quantum of sentence.
5. Conversely, the learned Assistant Prosecutor-General recorded his objection and submitted that the accused was rightly convicted by the trial Court and the appellate Court rightly dismissed the appeal, thus the prosecution was succeeded to establish its case for conviction and sentence.
6. I have considered the respective submissions of learned counsel for the applicant, learned Assistant Prosecutor-General after minute and meticulous examination of the record.
7. It appears that the Appellate Court did not consider main aspect of the case,which is joint recovery, consisting of one T.T. Pistol and a country made pistol said to have been effected from "Lai bushes" in a plastic bag under the joint mashirnama. The place of recovery is too far and abandoned area as a Jungle of "Lai" by digging earth. The Appellate Court also relied upon the 'extra-judicial confession, said to have been made at the time of interrogation, hit by Article 39 of Qanun-eShahadat Order, 1984. The trial Court and also Appellate Court both while passing the impugned judgments also failed to appreciate the material contradictions in evidence of P.Ws. And discrepancies on the part of prosecution. Nevertheless, the Appellate Court does have wider scope in order to scrutinize and consolidate the entire record of the trial.
DISCREPANCIES AND CONTRADICTIONS IN THE EVIDENCE, WHICH WERE OVERSIGHTED/MISREAD BY THE TRIAL COURT SO ALSO APPELLATE COURT.
(i) Daily diary vide Entry No,,13 was not produced during course of trial.
(ii) The alleged recovery of T.T. Pistol of .30 bore bearing No,P-297 alongwith magazine and four live bullets of 30 bore were neither sealed at the spot nor sent to Ballistic Expert for seeking Expert's opinion in order to ascertain the kind and nature of weapon for awarding the punishment as provided in the section and also its working condition in order to assert that (i) whether it was used in the crime or not and (ii) whether it was a weapon or a piece of metal.
(iii) Part of recovery of the case viz. Four SG live cartridges of white colour, were not produced during trial, which vitiate the evidence regarding entire recovery.
(iv) Admittedly both the mashirs of recovery were close relatives of the deceased Muhammad Khan Soomro, therefore, why they were called upon to be made as mashirs of the recovery, which also creates a doubt in the process of alleged recovery to a prudent mind.
(v) Production of recovery during evidence is doubtful as the same was neither exhibited with any article number nor specified with its description. Only the words have been used in the evidence that "case property lying in Court is the same." It was for the trial Court to mention each and every recovery with its specific name and exhibit the same with article number at the time of recording evidence.
(vi) The mushirnama of recovery reveals that there are two different registration numbers of a same vehicle (Datsun) viz. KO-7404 and 7945, which is said to have been used for proceeding from the police station towards the place of recovery.
P.W. QURBAN ALI, P.W.1
(i) I am complainant in this case as well as Investigation Officer in this case.
(ii) It is a fact, both the mashirs namely Muhammad Rahim and Khaman are close relatives of the deceased Muhammad Khan Soomro.
(iii) It is correct that no date is mentioned in mashirnama with the signature of myself and P:W.s. The accused produced by Wadero Husain at Police Station on 9-12-1998, but I do not know at about what time.
(iv) It is correct that I did not associate the "Nekmard" or respectable persons from Garho Town while going to the place of recovery of crime weapons.
(v) It is correct that in the newspaper daily Awami Awaz dated 3rd December, 1998, the news was published regarding arrest of accused Alam Sher, Punhoon, Khan Muhammad and Zaheer.
(vi) It is correct that accused Alam Sher is a complainant in the murder case which the mashir's closed relatives are involved at Mirpur Sakro.
(vii) It is correct that the weapon i.e, pistol along with magazine and bullets produced in the court are not sealed.
(viii) It is correct to suggest that the place of recovery of the case property was a Jungle.
P.W. MUHAMMAD RAHIM, P.W.2
(i) I along with co-mashir Khaman were present in Garho Town where S.H.O. Garho, Qurban Mangsi, HC Qamaruddin, PC Jurial, PC Mumtaz Ali and two arrested accused namely Alam Sher and Punho came in private Datsun S.H.O. Took me and Khaman from Garho Town. We went to Dargah Chuttan Shah which is situated at the distance of 10 K.M. Away from Garho Town near the Lai Jungle.
(ii) I was available in Garho and was called at Police Station Garho. (self-contradictory).
8. Section 3 of Pakistan Arms Ordinance, 1965 provides the definition of arms as under:--
(a) "arms" includes;
(i) Cannon;
(ii) Fire arms for all types, such as light and heavy automatic and semi-automatic weapons, rifles, carbines, muskets, shot guns (whether single or double barreled) revolvers, pistols and appliances the object of which is the silencing of fire arms;
(iii) Air pistols, bayonets, swords, sword-sticks, daggers, knives with blades of four inches or more (but not kitchen knives or knives used in good faith for carrying on of a profession) and flick knives irrespective of the size of the blade.
(iv) Knuckle-dusters, spears, spearheads, bows and arrows and parts of arms.
(b) "cannon" includes;
(i) all types of artillery, mortars, machines and sub-machine guns;
(ii) silencers for all machines and submachine guns;
(iii) anti-tank rifles and recoil less guns or rifles and bazookas;
(iv) revolvers or pistols over 46 inches bore;
(v) nuclear weapons of all types;
(vi) projectors, guided missiles and discouragers for grenades, rockets, bombs and gas or smoke containers.
(vii) flame throwers of all types; (viii)all carriages, platforms and appliances for mounting or transporting cannon; and
(ix) parts of cannon.
' Section 13 of Pakistan Arms Ordinance, 1965 provides the punishment as under:-- "Shall be punished with imprisonment for a term which may extend to [seven] years, or with fine, or with both: [Proviso **] [Explanation ***] "Provided that the punishment for an offence committed in respect of any;
(a) cannon, grenade, bomb or rocket; or
(b) light or heavy automatic weapon, rifle of .303 bore or over, musket of 410 bore or over or pistol or revolver of .441 bore or over, or ammunition which can be fired from such weapon, rifle, musket, pistol or revolver, shall be imprisonment for a term which is not less than three years."
"Provided that the punishment for an offence committed in respect of any rifle of .303 bore of over, Musket of .410 bore or over, Pistol or Revolver of .441 bore or over, or a term which is not less than three years."
8. I am of the firm opinion that the Ordinance provides two categories of punishment on the basis of nature of weapon, as under: {{TABLE}} Category of weapon Punishment 1.0rdinary weapon (To be determined by the expert) May extend to seven years or with fine or with both (no minimum quantum of punishment has been provided, which is discretion of the Court on the basis of facts and circum- stances of the case)
2. (a) cannon, Not less than 03 grenade, bomb or years. Rocket; or
(b) light or heavy automatic weapon, rifle of .303 bore or over, musket of 410 bore or over or pistol or revolver of .441 bore or over, or ammunition which can be fired from such weapon, rifle, musket, pistol or revolver (To be determined by the expert). {{TABLE}} ' In the first category the Court will award sentence or fine or both of them be imposed, but in second category the Court will award the sentence not less than 03 years, which is mandatory.
Therefore, without ascertaining the nature of weapon, punishment cannot be awarded under section 13 of Pakistan Arms Ordinance, 1965 and it is the Ballistic Expert who can ascertain the nature of weapon and its condition being functional or not, if the weapon is not in working condition it can be presumed as a piece of metal. The ordinary police officer does not come in his person within the ambit of expertise/ballistic expertise. Reliance can be placed in the case of Rahim Bux v. State (2010 PCr.LJ 642) where Balochistan. High Courthas held' as under:- "Non-sealing of alleged recovered arms and ammunitions and non-sending thereof to expert regarding functional condition of alleged pistol, perhaps uprooted the entire prosecution case and the edifice of prosecution case built in such situation is bound to fall for intentional departure from normal course."
10. It is a matter of fact that no evidence I available on record a to who made fir t information leading to recovery of pi tol and admittedly the alleged pi tol were jointly recovered from a Jungle, therefore, evidence of recovery I not afe to be relied upon. Reliance I placed upon the ca e of Rekatulla v. State reported in PLD 1962 Dacca 261, wherein it ha been held that "there is nothing on the record at all to indicate which of the two petitioners made the first discovery. That being so the said evidence, as led and brought on the record, is not legally available or useable against any of the petitioners at all." Reliance is also placed upon the case of Khalas Khan v. State reported in 1975 PCr.LJ 172 [Lahore] where it has been held that "It is not stated as to which of the accused had first led to the recovery or pointed out the place from where the firearms were ultimately dug out Reliance is also placed upon the case of Abdul Ghani v. State reported in 1976 PCr.LJ 1462 [Karachi] wherein it has been held that "the evidence of recovery of hatchet is also not worthy of credit. The recovery at the pointation jointly of several accused persons cannot be made the basis of drawing an inference about the conduct of such accused persons unless it can be shown with a degree of particularity that such inference can be drawn with respect to each one of the persons involved in the act. This is the view in Amirali v. State (i). In Khalas Khan v.
State (2) the view taken is that joint recoveries are of no use and are not admissible in evidence."
11. The trial Court cannot award the sentence "as already gone" but it must be awarded with specific period with regard to the clarification of the quantum of sentence.
12. Section 103, Cr.P.C. Is also applicable to the instant case, the recovery was said to have been effected on the pointation of applicant/accused from a Jungle situated near Dargah Chuttan Shah, as the police proceeded from police station towards pointed place and the mashirnama of recovery has also been prepared under subsection (2) of section 103, Cr.P.C.
Search to be made in presence of witness ' The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it.
' In this regard reliance is placed upon the case of Muhammad Afzal v. State 1983 SCMR Page 1, wherein the honourable Supreme Court has held as under:-- "They have a joint cultivation and a common Haveli. Thus in our opinion the recovery of gun P.7 becomes highly doubtful for the reason that no disinterested and respectable person of locality was made to join the investigation i.e, to witness the recovery of gun P . 7 . "
' Reliance is also placed upon the case of Mushtaq Ahmed v. State reported in PLD 1996 SC 57 wherein the honourable Supreme Court has held as under:-- "S.103. Search . To be made in presence of witnesses:---(1) Before making a search under this chapter, the officer or other person about to make it shall call upon two or more respectable inhabitants of the locality in which the place to be searched is situated to attend and witness the search and may issue an order in writing to them or any of them so to do.
(2) The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it.
(3) Occupant of place searched may attend:---The occupant of the place searched, or some person in his behalf, shall, in every instance, be permitted to attend during the search, and a copy of the list prepared under this section, signed by the said witnesses, shall be delivered to such occupant or person at his request.
(4) When any person is searched under section 102, subsection (3), a list of all things taken possession of shall be prepared, and copy thereof shall be delivered to such person at his request.
(5) Any person who, without reasonable cause, refuses or neglects to attend and witness a search under this section, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under section 187 of the Pakistan Penal Code."
13. The upshot of the above discussion is that the trial Court as well as the Appellate Court failed to consider the evidence available on record and the investigation was conducted dishonestly, which has rendered the entire prosecution case doubtful. It is well-settled principle of law that a single infirmity creating reasonable doubt to the prudent mind regarding the truth of the charge, is sufficient to extend the benefit of doubt to the accused.
14. These are the reasons, for which I allowed the instant Criminal Revision Application by my short order dated 20-9-2012, whereby the impugned judgment dated 23-11-2002 passed by the learned trial Court and judgment dated 24-2-2004 passed by the learned Appellate Court were set aside.