' SYED MUHAMMAD FAROOQ SHAH, J.---Appellant Bashir Ahmed Maitlo a Police Constable was booked in S.T.A. Case No,52 of 2000 under section 13(e) of Pakistan Arms Ordinance, 1965. On completion of usual investigation, he was challaned, charge was framed by the trial Court to which appellant pleaded not guilty and claimed trial.
2. At trial, to substantiate their case, prosecution examined four witnesses and on completion of prosecution and defence evidence, by pronouncing the impugned judgment dated 28-3-2002, the learned trial Court convicted the appellant under section 13(e) of the Pakistan Arms Ordinance, 1965 and sentenced him to suffer R.I. For 3 years and to pay fine of Rs,5000 and in case of default to undergo R.I. For 3 months more. However, benefit of doubt under section 382-B, Cr.P.C. Was extended to him.
3. Contents of the charge framed against the appellant reveals that on 10-9-1997 at about 5-00 p.m. He was found in possession of an unlicensed Darra made semi-automatic Rifle No, 1226888 of 7.62 bore. Learned counsel for the appellant submitted that the trial Court convicted the appellant without examining the material part of evidence, which is result of misreading and non-reading of prosecution evidence available on the record. Perusal of the evidence reveals that P.W. SIP Arshad Ali was informed by PC. Muhammad Qasim Armourer that the original weapon was replaced into country made and such certificate was issued by him, and on that basis he arrested the accused/appellant Bashir Ahmed under proper mashirnama of arrest and recovery. Thereafter, he brought him at Police Station BakhshaPur and lodged the F.I.R. Under section 409, P.P.C. He has further deposed in his examination-in-chief that "he cannot say whether rifle/weapon present in Court is same or not which was secured from accused at the time of checking" . This Recovery Officer in his cross-examination reaffirmed and reiterated that "I cannot say whether weapon/rifle recovered from the possession of accused is same which was issued to him by the office. It is fact that case under section 409, P.P.C. Is also pending against the same accused in respect of same property" . Armourer P.W. PC Muhammad Qasim has also not supported the prosecution while deposing that he did not produce any record which shows that the Darra made weapon was not issued to the appellant. In his cross-examination he has stated that "it is fact that this rifle is same number which was issued to the accused from the office". P.W. Inspector Jamshed Ali stated in his deposition that, "it is fact that rifle recovered from the possession of accused Bashir Ahmed with same number which was issued by their office to accused Bashir. I cannot say whether same rifle was recovered from the accused which issued by the office. Mashirnama of recovery and arrest was prepared at Police Station". P.W. A.S.-I. Roshanuddin stated in cross that the original rifle was also recovered from the Mosque near Police Station and stated that "I also prepared mashirnama of original semi-automatic rifle". It is an admitted fact that neither memo of recovery of original weapon was exhibited by the prosecution nor any witness of alleged recovery was examined.
4. Adverting to the contradictions in prosecution evidence, reproduced above Mr. Asif Ali Abdul Razzak Soomro Advocate contended that the aforementioned prosecution evidence in view of major contradictions was sufficient to acquit the accused as it is settled that. Benefit of slightest doubt always favour the accused. Learned counsel submitted that the trial Court has not properly appreciated and evaluated the prosecution evidence which was insufficient to warrant conviction to the appellant as the ocular testimony of P. W's is untrustworthy being full of contradictions and improvements. It is next contended by the learned counsel for the appellant that the complainant and all other witnesses are police personnel as such they are interested A and partisan and P. Ws.
Are sub-ordinate to complainant.
5. Section 9 of West Pakistan Arms Ordinance (XX of 1965) deals with unlincensed possessions of Arms and Ammunitions and section 13(e) of the Ordinance provides penalty under which the appellant was convicted and awarded sentence which reads that "he, in possession or under his control any, arms, ammunition or military stores in contravention of provision of section 9)".
Learned counsel for the applicant contended that bare reading of aforementioned provision reveals that section 13(e) is not attracting in the circumstance of the present case as there are no allegation that the accused was possessing unlincenced weapon.
6. Conversely, learned State Counsel was found unable to rebut the contentions of learned Defence Counsel and prosecution evidence reproduced above.
7. Arguments advanced from both sides have been considered and record has also been perused including original R&Ps.
8. Apart from above submissions made by the learned counsel there appears many other reasons discussed hereinbelow, which transpires that the prosecution has failed to prove its case against the accused beyond shadow of doubt:--
(i) Prosecution did not adduce evidence with regard to the fact that who issued the gun from the office, to ascertain that as to whether same or any other weapon was found in the possession of appellant, no document has been exhibited showing issuance of rifle to the appellant nor any receipt has been produced. The case of prosecution is that the original China made rifle was replaced in to country made which was allegedly recovered from the possession of appellant and that after sufficient period of arrest of the appellant, the original weapon was also recovered from Mosque but prosecution neither exhibited any memo of recovery of original weapon nor prosecution examined any witness on oath. The relevant record of issuance the weapon to the appellant has also not been exhibited.
(ii) No source of information had gathered by the prosecution to establish that the appellant was possessing the country/Darra made rifle instead of the rifle delivered/ handed over to him and admittedly the recovered weapon has not been sealed at the spot.
(iii) The police being aware of place of deployment of appellant did not join respectable; independent private persons of the locality to witness the recovery without any plausible explanation in this behalf, therefore, the Recovery Officer has violated the ingredient of section 103, Cr.P.C. Learned counsel for the appellant submitted that the appellant was made an scope-goat by his officers as apparently they may be involved in replacement of weapons. To support his contentions on the point of joining independent persons of the locality, learned counsel placed his reliance on the case law reported as i.e, Ghulam Hussain v. The State 2003 PCr.LJ 7 Karachi, (2) Riaz Hussain Kalhoro v. The State reported in 2004 PCr.LJ 90 and Muhammad Aziz v. The State PLD 1996 SC 67.
(iv) It is an admitted fact that the appellant has been acquitted in the main case registered against him under section 409, P.P.C. And the trial Court has observed that the prosecution has failed to establish the case against the accused.
(v) It is also an admitted position that neither weapon was sealed at spot nor opinion of Forensic/Ballistic Expert was obtained or exhibited as none of the PWs in their deposition said that the rifle secured was in working condition. Statement of the accused under section 342 Cr.P.C. Was not recorded properly by the trial Court as no question was put to the appellant that either he replaced the original China made semi-automatic rifle into country made or that the said rifle was not issued to him or that the original rifle was recovered from the mosque on his pointation therefore, the conviction recorded by the trial Court is not sustainable.
(vi) Moreso, a perusal of the acquittal order dated 31-5-2012 passed in main case registered under section 409, P.P.C. Against the appellant transpires that the learned trial court observed that during custody with police the alleged original rifle was recovered by the I.O. Under mashirnama dated 23-9-1997 but the same has not been exhibited in this case. Learned trial court further observed in the main case that there is no evidence against the accused that alleged rifle was misappropriated by him.
9. In view of the case-law cited by the learned counsel for the appellant read with contradictory evidence and incurable lacuna, I hold that prosecution has miserably failed to prove its case against the above named accused/appellant beyond shadow of reasonable doubt therefore, sentence awarded to the appellant cannot be sustained under the law. The conviction and sentence is set aside by this court and appellant is acquitted, accordingly. Appeal is allowed.
Appellant is present on bail, his bail bond stands cancelled and surety discharged.