MUHAMMAD SALEEM JESSAR, J.---Through this Criminal Appeal appellant Rasool Bux Dasti son of Ghulam Nabi has assailed judgment dated 03.12.2 019 handed down by learned IInd Additional Sessions Judge, Jacobabad in Sessions Case No.178 of 2019 (re: The State v. Rasool Bux) being outcome of FIR No.08/2019 under sections 23(1)(a) and 25 of Sindh Arms Act, 2013 , registered at P.S. Dodapur , whereby appellant has been convicted for offence punishable under above said Section and sentenced to suffer R.I. for five (5) years and to pay fine of Rs.20,000/- (Rupees Twenty thousand only), and in case of default in payment of fine, to suffer S.I. for three months more. However , appellant was extended benefit of section 382-B, Cr .P.C.
2. Concisely , the facts of prosecution case are that complainant Inspector/SHO Deedar Hussain Ghumro lodged FIR on 03.05.2019 at 1930 hours, stating therein that on 03.05.2019, he along with PC Mumtaz Ali and PC Abdul Basit in police mobile driven by PC Barke t Ali, left police station under roznamcha entry No.19 at 1710 hours, for patrolling. While patrolling, he received spy information that accused Rasool Bux required in FIR No.07/2019 of Police Station Dodapur offence under section 302, P.P.C., is standing at link road leading to 'Bonn, near Peer Wah bridge. After receipt of such information, they proceeded and reached to the place informed and saw that, one person having gun was standing there, who seeing police party , tried to escape away, but he was apprehended at about 10 to 15 paces away . He was enquired about his particulars, on which he disclosed his name as Rasool Bux Dasti and about gun, he disclosed that it is without license and after searching his body , three live cartridges were recovered from his right pocket shirt and memo of arrest and recovery was prepared in presence of mashirs and FIR was registered against him.
3. After usual investigation, challan was submitted against the present accused before the concerned court. A formal charge was framed against the accused to which he pleaded not guilty and claimed his trial vide plea as Ex.
2/A.
4. In order to prove its case, prosecution examined PW-1, complainant Inspector Deedar Husain at Ex. 03, who produced copy of memo of arrest and recovery as Ex.3/A, roznamcha entries of departure and arrival as Ex.3/B, copy of FIR as Ex.3/C and FSL report as Ex.3/D. P.W. Mumtaz Ali was examin ed at Ex.4. Thereafter , learned DDPP for State closed prosecution side vide his Statement Ex.5.
5. Statement of accused under section 342, Cr.P.C. was recorded vide Ex.6 wherein he denied the allegations levelled against him. However , neither he examined himself on oath, nor produced any witness in his defence.
6. After formulating the points for determination, recording evidence of prosecution witnesses and hearing counsel for the parties, learned trial Court vide impugned judgment convicted and sentenced the accused/ appellant, as stated above. Against the said judgment instant appeal has been preferred by the convicted accused.
7. I have heard learned counsel for the appellant as well as learned D.P.G. appearing for the State and also perused the material available on the record.
8. Learned counsel for the appellant submitted that appellant was booked in 02 crimes viz. Crime No. 07 of 2019 Police Station Dodapur , under section 302, P.P.C. and the present case under section 23(1)(a) of Sindh Arms Act, 2013. According to him, in the main Crime No.07/2019, appellant has already been acquitted of the charge by the trial Court in Sessions Case No.177 of 2019. In support of his contention he referr ed to the certified copy of Order dated 03.12.2019 available at page 25 of the Court file, whereby appellant has been shown to have been acquitted from the charge in the main case under section 302, P.P.C. According to him, present case is the outcome and offshoot of the aforesaid main case in which same set of evidence produced against the accused has already been disbelieved by trial Court, hence proprie ty of law demands that same treatment be meted out in favour of the accused in the instant case too.
9. Learned D.P.G. appearing for the State, could not controvert the above submissions made by learned counsel for the appellant and has candidly recorded his no objection to the grant of instant appeal and acquittal of the accused / appellant.
10. Needless to emphasize the well settled principle of law that if an accused complainant did not name present accused and stated that one unidentified person with muffled face armed with gun directly fired at Mst. Nimani, the daughter of complainant in the main case. The complainant as well as alleged eye-witnesses of the incident did not identify the present accused to be the same who fired at the deceased. It would be advantageous to reproduce hereunder the relevant 'portion from the said judgment dated 02.12.2019 passed in the main case: "The entire ocular account given by complainant and eye-witnesses have not supp orted prosecution case on point of identification of present accused at the time of commission of alleged offence. All the eye-witnesses deposed that, on the night of incident, one unidentified culprit with muffled face armed with gun directly fired at Mst.
Nimani the daughter of complainant, which hit her and she died on spot. They further deposed that, accused present in Court is not same, as he was not available at the time and place of incident in commission of alleged offence. Mashirs Karim Dad and Ghulam had denied that, memo of place of incident and Danishnama were prepared in their presence and thereon LIT s. were obtained from them ' at spot."
13. There also seems to be violation of the provisions of section 103, Cr.P.C. as no independent witness of the locality was associated as mashir of the alleged arrest of the accused and recovery of the gun from him. In this respect, reference may be made to , the case of State v. Bashir and others (PLD 1997 SC 408), wherein Honourable Supreme Court held as under: "As regards above second submission of Mr. M.M. Aqil, it may be observed that it has been repeatedly held that the requirements of section 103, Cr. P. C. namely, that two Members of the public of the locality should be Mashirs of the recovery , is mandatory unless it is shown by the prosecution that in the circumstances of a particular case it was not possible to have two Mashirs from the public."
14. Apart from above, there is also unex plained delay in sending the crime weapon to the Ballistic Expert as the same was allegedly recovered from the accused on 03.05.2019 where it was sent to the Ballistic Expert on 07.5.2019 i.e. after about four days as is evident from the FSL report ex.03/D wherein against the column "Date Received", "07.05.2019" has been written. In the case reported as Samandar alias Qurban and others v. The State reported in 2017 MLD 539 Karachi, while dealing with the point of delay in sending the weapon to Ballistic Expert, this Court held as under: "Apart from above sending of crime weapon to ballistic expert for forensic report with delay of 20 days of their recovery also added further doubt into the prosecution case, thus in view of above coupled with non-compliance of section 103, Cr.P.C., it can safely be presumed that alleged recovery of crime weapon was not made from the possession of the appellants as alleged by the prosecution."
15. In the case reported as Yaqoob Shah v. The State (1995 SCMR 1293 ) Honourable Supreme Court held that the report of the Fire-Arm Expert was of no avail to the prosecution as the crime empties and the fire-arms allegedly recovered from the accused were sent to Forensic Science Laboratory after delay . Reference in this respect may also be made to the decision reported as Ghulam Hussain and 2 others v. State (1998 PCr.LJ 779).
In the circumstances, such reports of the ballistic expert might be in positive, would lose its sanctity .
16. For the foregoing reasons by a short order passed on 31.12.2019, instant appeal was allowed. Consequently , impugned judgment dated 02.12.2019 handed down by learned IInd Additional Sessions Judge, Jacobabad in Sessions Case No.178 of 2019 (re: The State v. Rasool Bux) being outcome of FIR No.08/2019 under section 23(1)(a) of Sindh Arms Act, 2013, registered at Police Station Dodapur , was set aside and appellant Rasool Bux Dasti son ,of Ghulam Nabi was acquitted of the charge and was ordered to be released forthwith if his custody is not required in any other criminal case by the jail authorities.
17. Above are the reasons for the said short order .