1. ' The appellant abovenamed, being aggrieved by judgment, dated 10th May, 1976 of the learned Sessions Judge, Thatta, in Sessions Case No, 22 of 1976 by which appellant has been convicted under section 411, P.P.C. And sentenced to suffer R.I. For 1 year has preferred the above appeal on the following facts and grounds:-- ' Briefly the prosecution .Case is, that between the night of 114th and 15th June, 1974 complainant Muhammad Ashraf was away from his house at Gharo and that his relatives Abdul Rahim and Sher Khan were in the house. One Abdul Rahim told him, that last night they had gone to see picture after locking the house and they returned at about 10-00 p.m. In the night and they found the lock broken and articles in the house were lying scattered and one suit-case was missing, which was having one licensed revolver with belt of 25 bullets, alongwith other clothes lying in the suitcase.
2. Then Muhammad Ashraf went to police and lodged his F.I.R. Exh. No,6 and gave the particulars of the stolen articles including the revolver lodged by complainant Muhammad Ashraf and then he went to Vardat and prepared Mashirnama Exh.No,12. Then he examined Abdul Rahim and Sher Khan. On 21st June, 1974 S.H.O. Gharo Mr. Abdul Quddus interrogated appellant Ansar, who was already in custody in Crime No, 50 of 1974 and appellant Ansar voluntarily pointed out and produced the stolen revolver from the bushes in presence of Mashirs Fida Ali and Hamid Hussain, alongwith 18 live bullets and that S.H.O. Secured these articles and prepared Mashirnama Exh.No,.14.
3. This revolver was the same, which was licensed revolver of complainant Muhammad Ashraf stolen from his house. Mr. Aslam A.S.I. Again got papers of this case and on 23rd June, 1974 appellant Ansar voluntarily produced from his house in town Gharo stolen clothes belonging to complainant, in presence of Mashirs Loung and Mooso and that the property mentioned in Mashirnama Exh.No,9 was secured. On 1st July, 19714 S.H.O. Mr. Abdul Ouddus challaned the appellant before Court of Law.
4. ' Appellant in his statement under section 342, Cr.P.C. Has said that he is innocent. He has not committed any offence and that he never produced and pointed out the revolver and also the stolen clothes. He has further said that these articles were never secured from him and that he has been involved in this false case due to the enmity of police and other filter plant officers.
5. ' Prosecution has examined Muhammad Ashraf complainant Exh.No,5, Abdul Rahim Exh. No,7, Loung Exh. No,8, Muhammad Aslam A.S.I. Exh. No,11, Abdul Quddus Station House Officer Exh. No,13, Mr. Mansoor Ali Mahalkari Exh. No,15, Mr. Hamid Hussain Exh. No,16. Appellant has not examined any witness in his defence.
6. ' The learned trial Court taking into consideration the evidence adduced before it, convicted and sentenced the appellant as hereinbefore mentioned and consequently the appellant has filed the above appeal, on the grounds mentioned in the memo. Of appeal.
7. ' The learned Advocate for the appellant in support of the above appeal submitted as under:-
(a) That the learned trial Court disbelieved part of the evidence produced by the prosecution, but only relied upon Mashir of the alleged recovery against whom the appellant has alleged enmity and as such the prosecution has failed to establish its case beyond reasonable doubt.
8. ' The learned Advocate for the State on the other hand submitted, that although he supports the recovery of the rifle from the possession of the appellant, but the Mashir of the said recovery was not able to identify the appellant before the learned trial Court and as such prosecution has failed to establish its case beyond reasonable doubt.
9. ' I have taken into consideration the submissions made by the learned Advocates before me and have gone through the R & P of the learned trial Court and the impugned judgment.
10. ' Learned trial Court did not believe recovery of alleged stolen clothes from possession of the appellant for cogent reasons. However as far as recovery of rifle was concerned, the learned trial Court accepted the statement of P.Ws. And convicted the appellant.
11. ' Prosecution case for recovery of alleged rifle at the pointation of appellant rests upon the statements of P.Ws. Abdul Quddus S.H.O. And P.W. Hamid Hussain.
12. ' According to P.W. Abdul Quddus S.H.O. Appellant led police party to jungle and dug out silken kerchief, in which revolver and bullets were covered, in presence of P.W. Fida Ali and P.W. Hamid Ali.
13. In his cross he stated, that he had picked Mashirs from Gharo Town, through police. He also admitted, that there were four cases filed against appellant. He also admitted P.W. Fida Ali and Hamid Ali are K.D.A. Employees and witnesses against appellant in case under section 399, P.P.C.
14. ' P.W. Hamid Ali in his statement before the learned trial Court stated, that he was Assistant Executive Engineer filter plant K.D.A. At Gharo since 1969 and had gone to police station in connection with some case for inquiry, where appellant was present and agreed to produce a revolver alleged to be concealed by him in bushes and as such he and police went in jeep with appellant from 11 miles, when appellant asked them to stop jeep and led them on foot for 8/10 paces and dug out revolver from earth, with five empty cartridges and produced Mashirnama Exh.
14. He admitted in cross, that he was witness against appellant in case under section 397, P.P.C. He also admitted, that he was unable to identify appellant before committal Court.
15. I find material contradictions between 1.0. And P.W. Hamid Ali about the manner and place from where he was picked up as Mashir. In addition to this, appellant has alleged enmity againt him as K.D.A. Employee and P.W. Hamid Ali has admitted that he is witness against appellant in other case under section 397, P.P.C. In spite of this 1.0. Chose this P.W. As Mashir, in spite of the fact that independent and respectable Mashirs could have been available in Gharo Town.
16. 1.0. Has given no explanation for having chosen this P.W. It may further be noted, that this P.W. Was unable to identify appellant before learned committal Court. In view of all these facts on record, no reliance can be placed on the statement of both P.Ws. For alleged recovery at the pointation of appellant of the rifle in question. In my opinion prosecution has failed to establish its case beyond reasonable doubt.
17. ' Therefore, I allow the above appeal and set aside conviction of the appellant and sentence awarded to him by impugned judgment and acquit him by giving him benefit of doubt and discharge the bail bonds executed by appellant in above appeal.