Salah-ud-Din petitioner was convicted under section 13 of the West Pakistan Arms Ordinance, 1965 and sentenced to R.I. For 1i years vide judgment, dated 30-8-1984 of the Magistrate 1st Class, Lahore. He challenged his conviction and sentenced in the Sessions Court, Lahore. The learned Additional Sessions Judge maintained his conviction but reduced the sentence to R.I. For one year, vide judgment, dated 27-1-1986. He has come up in revision to question the correctness and propriety of the aforesaid orders.
2. The brief facts of the prosecution case are that on 17-4-1983 Zafarullah Khan S.I./S.H.O. Police Station New Anarkali, Lahore; alongwith Yusuf Ali P.W. 2 and Muhammad Yusuf P.W.
1. Was on patrol duty in Urdu Bazar, Lahore. The petitioner who was coming from the side of Saleem Model School, on seeing the police, tried to slip away but he was apprehended and on his personal search a .32 bore pistol alongwith six live bullets was recovered from his possession vide memo: Exh. P.A., After the investigation, he was challaned.
3. In support of its case, the prosecution examined three eye--witnesses namely Muhammad Yusuf P.W. 1, Yusuf Ali P.W. 2 and Zafarullah Khan S.I., P.W. 3.
4. The petitioner pleaded not guilty to the charge and stated that he had filed a complaint against Naseem Bhatti S.H.O., Police Station Bhatti Gate. Aman. Ullah H. C. Who was previously working under him was posted in New Anarkali Police Station and he got him falsely implicated. He examined two witnesses in his defence who supported his plea.
5. Learned counsel for the petitioner contends that Muhammad Yusuf P.W. I could not be cross- examined as counsel for the petitioner was not available and an application for summoning him for cross-examination was made on 3-5-1984 and the learned trial Court fixed it for arguments on 16-5-1984 but it was never attended to subsequently. He further submits that the illicit pistol was never produced in Court when Muhammad Yusuf P.W.1 and Zafarullah Khan P.W. 3 were examined, therefore, their evidence is of no avail to the prosecution. Lastly, he submits that the witnesses from the locality i.e. Alleged place of recovery were available but none of them was associated with recovery proceedings, therefore, the conviction and sentence of the petitioner is unsustainable.
Learned State counsel on the other hand, submits that the recovery witnesses had no motive to falsely implicate the petitioner and their evidence has been rightly relied upon by the Courts below.
6. Perusal of the file reveals that Muhammad Yusuf P.W. I was examined by the trial Court on 4-4- 1984. The counsel of the petitioner was not present and the petitioner himself put only two questions to this witness. On 3-5-1984 an application was made for calling him for cross- examination which was fixed for arguments on 16-5-1984 but thereafter, it was never taken up and aforesaid P.W. Was not summoned for cross-examination. However, his statement does not show that the illicit pistol was produced/ exhibited in Court. Same was the position when Zafarullah S.I.
Entered the witness box. His statement clearly shows that the pistol was not produced in Court. This witness further admitted that Urdu Bazar is a very busy Bazar but he did not join any person of the locality in the recovery proceedings. The two defence witnesses stated that Amanullah H.C. Had taken away the petitioner from the Bazar and that nothing was recovered from him. They were not cross-examined by the prosecution and their statements go unchallenged on the record.
7. In the circumstances, I feel inclined to the view that the evidence led by the prosecution is not sufficient to warrant the conviction and the petitioner is entitled to the benefit of doubt. I, therefore, allow this petition, set aside the conviction and sentence of the petitioner acquit him of the charge.
He is on bail. He shall be discharged from his bail bonds.