' Appellant abovenamed being aggrieved by judgment, dated 27th January, 1979 of the 1st Additional Sessions Judge, Sukkur, in Sessions Case No,1100/79, whereby appellant has been convicted under section 13-E of the Arms Ordinance and sentenced to suffer R.I. For one year, has preferred the above appeal on the following facts and grounds:-
2. The prosecution case against him is that S.H.O. Manzoor All Wagan, while investigating crime No,1 of 1972 against appellants Shahdad and Karimdad, for an offence under section 302, P.P.C, arrested appellant Shahdad from his village on 9th January, 1972. On interrogation the appellant on the same day led the police party and the two Mashirs namely Gul Sher and Abdullah to his house and from a room he dug out the floor and produced a single barrel gun which was buried in the house.
The same was secured vide Mashirnama Exh.7 (which is the copy of the original Mashirnama) produced in the main murder case. Since appellant had no licence in his name the Sub-Inspector registered a separate case against under section 13 (E) of the Arms Ordinance, vide F.I.R. Exh.8, and after completing the investigation challaned him seperately.
3. At the trial the prosecution in support of its case examined P.W.1 Manzoor Ali S.I.P and Mashir Gul Sher. The other Mashir was given up by the learned A.P.P. And the side was closed. The appellant in his statement under section 342. Cr.P.C. Has denied the recovery of the gun from his possession and pleaded that the witness Mashir has deposed against him at the instance of police.
4. The learned trial Court taking into consideration the evidence adduced before it, convicted and sentenced the appellant abovenamed as hereinbefore mentioned and consequently the appellant has filed the above appeal on the grounds mentioned in the memo, of appeal.
5. The learned Advocate for the appellant in support of the above appeal submitted, that P.W. Gul Sher the Mashir of the recovery of the articles, beside, belonging to the complainant party and related to the complainant was not the resident of the locality as admittedly. He was staying four miles away from the appellant's village, from where the recoveries are alleged to have been made.
In addition to this the second Mashir who was not examined, was also a relation of the complainant and belonged to the complainant party and was also not resident of the locality as admitted by him. In view of this the provisions of section 103, Cr.P.C. Which are mandatory have been violated by the Investigating Officer, specially as the village of the appellant consisted of more than 100 houses and as such respectable independent Mashirs of the locality could have been easily available, but the 1.0. Made no attempt at all to secure the presence of such Mashirs and therefore no reliance can be placed on such recovery. In support of this contention the learned Advocate for the appellant relied upon cases reported in 1974 P Cr. L .1 137; 1980 SCM R 225; 1983 SCMR 1 andPLD 1968 Lah.
869.
6. The learned Advocate appearing for the State on the other hand submitted, that he fully supports the impugned judgment, as P.W.7 Gul Sher no doubt a relation of both the parties, has been fully corroborated by the statement of 1.0. And the cases cited by the learned Advocate for the appellant are not at all applicable to the prersent recoveries, including case reported in PLD 1968 Lab.
869.
7. I have carefully considered the above submissions made by the learned Advocates before me and have gone through the R & P of the learned trial Court and the impugned judgment as well as through the cases cited by the learned Advocates before me.
8. I find great force in the contention of the learned Advocate for the appellant. Admittedly both the Mashirs of alleged recoveries from appellant were not the residents of the locality, beside being related to the complainant party. I find 1.0. Has given no cogent reasons for not picking up Mashirs of the locality. In view of this no reliance can be placed on such recoveries at all and the cases cited by the learned Advocate for the appellant are fully applicable to present case. I have also discarded the recoveries in main murder case Appeal No,97/79. The contention of the learned Advocate for the State, that in view of statement of 1.0., who has fully corroborated the statement of Mashir P.W. Gul Sher, prosecution has established its case against the appellant, in my opinion has no force, in the face of violation of mandatory provisions of section 103, Cr.P.C. By 1.0., for which he has given no explanation at all.
9. Therefore I allow the above appeal and set aside conviction of the appellant and sentence awarded to him and acquit him by giving him benefit of doubt and discharge the bail bonds executed by the appellant.