Abdul Maalik Gaddi, J-. The appellant was tried by the learned Special Judge STA, Jacobabad, for the offence punishable under Section 13 (d) of Pakistan Arms Ordinance, 1965, who found him guilty for the said offence and consequently convicted and sentenced him to suffer R.I for four years and to pay fine of Rs.10,000/-, and in case of default of payment of fine it was ordered that he shall undergo simple imprisonment for three months more vide impugned judgment dated 12.3.2002.
2. The case of prosecution is that, on 06.10.1996, at 1700 hours complainant ASI Amanullah Shah of PS City, Jacobabad, on behalf of the State lodged the F.I.R of this case under Section 13 (d) Arms Ordinance, stating therein that in Crime No.79/1996 under Sections 392, 506 (2), 34 P.P.C, and Section 17 (3) of the Offence Against Property (Enforcement of Hudood) Ordinance, 1979, complainant Gul Muhammad Mugheri and P.W Bachoo Mal and Deewan Lal had apprehended the accused with the help of P.C Umar Hayat. They were accused Abdul Malik Dharpali alongwith rifle and bullets and accused Habibullah Dharpali (appellant) with T.T pistol and four live bullets. Both these accused produced by these witnesses at police station as they had committed the robbery from the shop of Gul Muhammad Mugheri for which complainant Gul Muhammad Mugheri had lodged the separate F.I.R. In presence of private Mashirs Anwar Ali and Muhammad Muqeem Mugheri the appellant was arrested by the complainant ASI Amanullah Shah under a mashirnama.
From the possession of appellant a T.T. pistol without number of 30-bore with magazine and four live bullets of 30-bore were recovered for which the accused did not produce the valid license.
3. A formal charge under Section 13-A (2) (b) of Pakistan Arms Ordinance, 1965, was framed against the appellant at Ex.2, in which he pleaded not guilty and claimed his trial vide his plea available on record at Ex.3. Vakalatnama of the advocate for accused; details of case properties are on record at Ex.4 to 6, respectively. Statements filed by PWs/ Mashirs Anwar Ali and Muhammad Muqeem before trial Court are available at Ex. 7, 13 and 14, in which they have stated that investigating officer of the case cited them as mashirs of arrest and recovery, though according to them neither they caught hold the accused and produced him before the police station nor any thing was recovered from his possession.
4. The prosecution in order to prove the charge against the accused/ appellant examined P.W Deewan Lal, who allegedly apprehended accused at the time of incident, at Ex.8, he has produced copy of his NIC at Ex.9 and his statement under Section 164 Cr.P.C at Ex.10. Prosecution also examined P.W Bachoo Mal at Ex.11, who also produced copy of his NIC at Ex.12. Prosecution had also examined complainant ASI Amanullah Shah at Ex.15, who during his statement produced copy of F.I.R bearing Crime No.79/1996, mashirnama of Crime No.79/1996 and F.I.R bearing Crime No.81/1996, at Ex. 16 to 18. Lastly, prosecution had examined PW/ PC Umar Hayat at Ex.19. Thereafter, the prosecution closed its side vide statement at Ex.20.
5. The appellant denied the allegations of prosecution in his statement under Section 342 Cr.P.C and stated that nothing was recovered from his possession; none of the private mashirs have supported the case of the prosecution and the evidence of P.C Umar Hayat and complainant who are police officials; they are interested and inimical to him.
6. We have heard the learned counsel for appellant, as well as learned A.P.G. and have gone through the evidence, documents on record and impugned judgment carefully.
7. Learned counsel for the appellant submitted that the appellant is falsely implicated in this case; nothing was recovered from his possession; property is foisted upon him and the prosecution witnesses, namely, Deewan Lal and Bachoo Mal who allegedly caught hold the appellant have not supported the prosecution case in any manner, while P.Ws Anwar Ali and Muhammad Muqeem who are the mashirs of arrest and recovery have not been examined, however their written applications are on record at Ex. 7 & 13, in which they have stated that neither the appellant was apprehended by the police party after commission of the offence in their presence, nor any weapon was recovered from his possession. He further submitted that evidence of complainant ASI Amanullah Shah and PC Umar Hayat available on record at Ex.15 and Ex.19 cannot be safely relied upon, as they are interested and their evidence too is contradictory on material particulars.
However, under the circumstances, he prays for allowing the appeal.
8. Learned A.P.G. has supported the impugned judgment by arguing that the present appellant was arrested after robbing the shop of Gul Muhammad Mugheri and a T.T pistol alongwith four live bullets were recovered from him for which he had no valid license.
9. From the record it appears that, whole case of the prosecution rests upon the evidence of P.Ws: Bachoo Mal and Deewan Lal, who allegedly caught hold the appellant and produced him at Police station alongwith T.T pistol and four live bullets, such mashirnama of arrest and recovery was prepared and P.Ws Anwar Ali and Muhammad Muqeem have been cited as mashirs. P.Ws Deewan Lal and Bachoo Mal have been examined by the trial Court, but these witnesses, who are eyewitnesses of the incident have not supported the prosecution case in any manner. For the sake of convenience it would be proper to reproduce the relevant portion of their evidence, which are available at Ex.8 and Ex.11; which reads as under: P.W Deewan Lal "The police had not shown us the apprehended culprit. Present accused was neither arrested by police in my presence, or anything was recovered from his possession. Police had not examined me."
Though this witness was declared hostile by the prosecution, but during his cross examination he has reiterated that nothing was recovered from appellant in his presence.
P.W Bachoo Mal "I see accused Habibullah present in Court and say that he was neither apprehended by the patrolling police party after commission of the offence in my presence, nor any weapon was recovered from his possession."
10. As observed above, that P.Ws: Anwar Ali and Muhammad Muqeem are shown as Mashirs of arrest and recovery of T.T pistol from the appellant, and these witnesses have filed their written applications, which are available on record at Ex. 7 & 13 of file of the trial Court. Through these applications, they have stated that nothing was recovered in their presence from the appellant.
These witnesses have not been examined by the prosecution. No reason has been assigned, why these prosecution witnesses have been kept away from the witness box. No efforts have also been made for calling them in witness box.
11. Article 129 (g) of Qanun-e-Shahadat Order 1984, which says that if any party withholds the best evidence, then it can fairly be presumed that the party had some sinister motive behind it and presumption would be drawn that if P.W would have been examined, his evidence would have been un-favorable to the prosecution. Reliance in this respect can be placed on case of Lal Khan v.
The State reported in 2006 S.C.M.R 1846.
12. It is also an admitted fact borne out from the record that the weapon allegedly recovered from the appellant was neither sealed on the spot, nor the same was sent to ballistic/ forensic expert. It is well settled proposition of law that conviction under Section 13 (d) of Arms Ordinance could not be maintained unless the weapon allegedly recovered was sealed on the spot and the opinion of forensic/ ballistic expert is produced on record to prove that the weapon so recovered was in-fact functional. In this regard, we are also supported with case of Loung through Superintendent Central Prison Hyderabad v. The State reported in 1999 P.Cr.L.J 595.
13. Four P.Ws have been examined in the case, only the official witnesses, namely, ASI Amanullah (complainant) and P.C Umar Hayat have implicated the appellant and the independent witnesses, namely, Deewan Lal and Bachoo Mal have not supported the prosecution case in any manner; whereas Mashirs/P.Ws Anwar Ali and Muhammad Muqeem have not been examined in this case, therefore, the evidence of complainant ASI Amanullah Shah and PC Umar Hayat is not supported by any independent witness or mashir. Their evidence has also been considered, but the same was also found contradictory on material particulars, therefore, their evidence cannot be safely relied upon in the present circumstances of the case.
14. So in the light of above legal position and in view of inherent defects on factual side in prosecution case, we are of the opinion that the case against the appellant is not free from doubt, hence appeal is allowed. The impugned judgment is set aside and appellant is acquitted from the charge. He is present on bail, his bail bond stands cancelled and surety is discharged.
15. This appeal was allowed by short Order dated 16.10.2014, and above are the reasons in support thereof.