The appellant Abdul Nabi, son of Dur Muhammad, by caste Bhungwar, resident of Village Dur Muhammad Bhungwar Taluka Shahdadpur of District Sanghar, has been convicted by the learned Additional Sessions Judge, II, Khairpur, under section 13-D, Arms Ordinance, and sentenced to undergo R. I. For one year and to pay a fine of Rs. 200 and in default of payment of fine to suffer R. I.
For two months more for having been in possession of D. B. B. L. Gun of '12 bore loaded with two live cartridges.
2. The allegations against the appellant are that on 25-10-1975, Mr. Qambar Ali, S. H. O., Police Station Gambat of District Khairpur, went for patrolling towards "Mills" side along with his subordinate staff of Police Constables Muhammad Qasim, Mohammad Rafique and Niaz Hussain.
When they reached mill area, they picked private persons Muhammad Hashim, Shah Bux, Arbab, Timo and Feroze with them and continued their patrolling. It was at about 8-30 p.m. While they were patrolling, they reached Chattan Shah, where they saw three persons going ahead of them.
The Police Party after introducing themselves asked those three persons to stop but they in return fired at the Police Party who also fired at them in self-defence and surrounded them. The Police Party caught hold of two persons out of them whereas third one succeeded in making his escape good. The S. H. O. En--quired about their names who gave their names to be Shamsudding, son of Sher Mohammad, resident of Nawabshah and the present appellant. The Policy Party recovered the gun referred to above from the person of the appellant and a revolver of '32 bore and a bullet from possession of 9hams--uddin. Such mashirnama was prepared in presence of Mashirs Mohammad Hashim and Shah Bux. The appellant as well as Shamasuddin had no licence and they were therefore arrested. The cases were then separately registered against the appellant as well as Shamsuddin. The appellant was sent up in the Court to stand his trial and has been convicted as above.
3. He has appealed and his version is that he had gone to attend marriage of one Qalandar Bux Mahar near Gambat town and he in company of Shamsuddin had come to take tea in the morning time at bus stop hotel. While they were coming out of hotel after taking tea, a constable came there who took them to Police Station Gambat where Police foisted this case against him as well as Shamsuddin. He has not examined any witness in defence.
4. The prosecution has examined S. H. O., who is complainant, Mohammad Rafiq, Police Constable and Shah Bux, mashir. The S. H. O., has not deposed if he had made any entry in the Roznamcha, before leaving Police Station at that hour for patrolling. It has been pointed out that town of Gambat being a Town Committee, is having a good population but no person from public was taken from this big town to act as a mashir in case of any occurrence, instead of one Shah Bux resident of different taluka i.e. Kot--diji of Khairpur District has been shown to have been taken from mill-area to act as mashir. It does not look natural as to why an independent person from Gambat town was not taken when the Police Party left Gambat at 7-00 p.m., which is not in any case an odd hour of night.
5. The learned counsel for the appellant has also pointed out that judg--ment in this case is nothing short of a carbon copy of the judgment in the Sessions case of State v. Shamsuddin, under section 13-D of Arms Act except that there is difference of a weapon and also cartridges have been shown in this case whereas a revolver and a bullet has been shown in the other case. He therefore contends that the trial Court has not applied his mind and has mechanically written the judgment in both the cases.
6. I have gone through the judgment of this case as well as true copy of the judgment of the Sessions Case No. 233 of 1976 (248/ 1975), State v. Shamsuddin under section 13-D, Arms Ordinance, which has been placed on the file of this case.
7. The learned Assistant Advocate-General frankly admits after going through the judgment that some unusual procedure seems to have been adopted which has made the whole case doubtful and he therefore does not support the conviction based on such a mechanical procedure without applying mind to evidence on record.
8. For the foregoing reasons, the appeal is accepted and conviction and sentence are set aside.