1. ' ALLAH DINO MEMON, J.--- The appellant Raisuddin son of Nasimuddin was charged and tried under section 13(e) of Arms Ordinance before the learned IIIrd Additional Sessions Judge (East), Karachi, who has convicted and sentenced him to suffer R.I. For three years vide judgment dated 30th April, 1988.
2. 'The brief facts of the prosecution case are that on 9-8-1983 Inspector Ch. Muhammad Ashraf S.H.O. Police Station Korangi while investigating Crime No.325/83 under sections 302 and 307/34, P.P.C. Arrested appellant Raisuddin at 2-00 p.m. During interrogation appellant led the police and Mashirs Muhammad Ameen son of Abdul Subhan and Wasim son of Mustaqeem to his house and produced blood-stained dagger from the lower shelf of the steel almirah which was kept in the room of his residential house. The S.H.O. Secured the same and prepared such Mashirnama in presence of the above Mashirs. Thereafter he took the accused and the property to the police station and lodged report under section 13(e) of the Arms Ordinance on behalf of the State. After necessary investigation the appellant was challenged before the Court.
3. ' A formal charge was framed against the appellant to which he pleaded not guilty.
4. ' At the trial police examined Mashir Muhammad Wasim son of Muhammad Naeem Khan P.W.1. He has produced sketch of dagger and carbon copy of Mashirnama of production of dagger as Exh.7.
5. The S.H.O. Ch. Muhammad Ashraf, P.W.2. Arrested the accused and secured dagger from him. He has produced the F.I.R. As Exh.10.
6. ' After the close of the prosecution case the statement of the appellant/accused was recorded in which he denied the allegations and has further stated that the P.Ws. Are related inter se and are his enemies. The appellant also examined himself on oath as envisaged by section 340(2), Cr.P.C.
7. ' The learned trial Judge after taking into consideration the evidence produced by the parties has convicted the appellant as described above and the present appeal is directed against the above judgment of conviction.
8. ' Complainant Ch. Muhammad Ashraf S.H.O. Has deposed that on 9-8-1983 he was posted as S.H.O.
9. At Police Station Korangi, Karachi. On the same day he arrested accused Raisuddin in Crime No.325/83 under section 302, P.P.C. At 2-00 p.m. At the .Place of occurrence. On the potation of the accused he recovered an unlicensed blood-stained dagger from the almirah lying in the house of the accused in presence of the witnesses Wasim and Ameen. He prepared such Mashirnama and sketch of dagger and obtained signatures of the Mashirs thereon. Exh.7 was the carbon copy of the original Mashirnama which has been produced in the murder case as Exh.17-B. He has also produced the F.I.R. As Exh.10. After completing the investigation he challenged the accused. In cross-examination he has admitted that he did not supply copy of statement of Wasim Ahmed son of Mutagen recorded 'under section 161, Cr.P.C. To the accused. He has also admitted that police record does not show any statement under section 161, Cr.P.C. In the name of Wasim son of Muhammad Naeem. Voluntarily stated that the statement of Wasim whose father's name was written as Muhammad Mutagen and who was also known as Muhammad Naeem, was recorded under section 161, Cr.P.C. He has denied that Muhammad Mutagen was not known as Muhammad Naeem as well. He has denied that since P.W. Wasim Ahmed son of Muhammad Mustageem was not inclined to appear in the Court in favour of the prosecution, therefore, he has produced a wrong person instead of Wasim Ahmed. Writing in Urdu appearing on Article 'A', case property of this case in blue ink was written in presence of Mashirs. It is a fact that on the case property it is correctly written that this is the alleged weapon having been used in the crime under section 302/307, P.P.C.
10. But word `Jawaid was not written by him. He did not know as to who had written word `Jawaid' on the case property but it was not written by him as the property was recovered from the accused Raisuddin. He has denied suggestion that the property Article 'A' was not recovered from accused Raisuddin. He did not mention in Exh.7 as to how many rooms were in the house of the accused from where Article 'A' was recovered. Mashir Muhammad Wasim has deposed that on 9-8-1983 at 2-30 p.m. He was sitting in a hotel in his Mohallah situated in front of place of Wardat when he was picked up by the police to be made as Mashir in the case. Accused Raisuddin was present with the police. He led the police and the Mashirs to his house and took out a dagger from the lower drawer of the aimirah which was kept in a room of the house. The dagger was stained with blood. The S.H.O.Secured the dagger, sealed it and prepared such Mashirnama which was signed by him and co-Mashir Muhammad Ameen. The sketch of the dagger was also prepared by the S.H.O. On the back of the Mashirnama. The original Mashirnama has been produced as Exh.17-B in main Sessions case being Session Case No. 841 of 1985. He has produced carbon copy of the said Mashirnama as Ddt.7. Dagger in the Court was the same. His statement was also recorded by the police. In cross- examination he has deposed that he has lost his National Identity Card. He has not applied for the copy of N.I.C. He has denied that his father was working as driver on the car of complainant Noor Muhammad. It is incorrectly written in Article 'A' that the dagger was recovered from the accused Raisuddin in his presence. He has admitted that all the writings on Article 'A' were written in his presence and it was also sealed in his presence. In Exh.17-A and Exh.17-B his father's name has been shown as Musrageem. In both the exhibits the witness No.2 has been shown as Wasim son of Mustageem. He did not count the number of the drawers of the almirah. He did not count the number of rooms in the house of the accused. He has mentioned the name of the hotel where he was sitting (Note: Not so recorded). The police personnel were not known to him previously.
11. Accused Raisuddin was not in injured condition at that time He did not accompany the police to the police station. He has denied that the accused did not produce the dagger in his presence. I-te has also denied that he was giving false evidence at the instance of Noor Muhammad after receiving money from him. Police did not call him to accompany them to the house of the accused Raisuddin. When he reached the house of accused Raisuddin the police called him inside the house to act as Mashir in the case. The police party went inside the house along with the accused persons and then he and the co-Mashir were called from the outside. Nothing else was kept in the room except almirah from which the dagger Article 'A' was recovered. He has denied that he was giving false evidence in this case.
12. ' We have heard Mr. Abdul Qadir Halepota, learned counsel appearing for the appellant, Mr. K.M.
13. Nadeem, learned A.A.-G. Appearing for the State, and have gone through the R&P of the case.
14. ' It is contended by Mr. Halepota that the Mashirnama of recovery and statement of Mashir Wasim recorded under section 161, Cr.P.C. Show that Wasim was son of Muhammad Mustaqeem whereas the witness examined in the Court is son of Muhammad Naeem Khan and, therefore, is a different person than the one who was shown to have acted as Mashir. It was further contended that the cloth in which Article 'A' (dagger) was wrapped shows that it was recovered from one Jawaid and, therefore, the evidence of complainant S.H.O. Ch. Muhammad Ashraf and alleged Mashir Wasim was unreliable.
15. ' Mr. K.M. Nadeem, learned AA.-G. Appearing for the State has contended that there was some mistake in the father's name of Mashir Wasim but it would not show that the person examined in the Court as Mashir was a different person. As regards dagger Article 'A', it was contended that it appears to be a mistake that name of Jawaid has been written.
16. ' We have considered the contentions of the learned counsel. It is an admitted position that the Mashirnama of recovery shows the name of witness No.2 as Wasim son of Mustaqeem and the statement of Wasim recorded under section 161, Cr.P.C. Also shows as Wasim son of Mustaqeem Ahmed, whereas the witness examined in the Court is son of Muhammad Naeem Khan. The explanation given by S.H.O. That Wasim's father Muhammad Mustaqeem was also known as Muhammad Naeem in his Mohallah cannot be accepted because witness himself does not say that his father Muhammad Naeem Khan was also called as Mustacieem. Wasim P.W.1 has specifically stated in cross-examination that he did not know the members of police party before and, therefore, the explanation given by S.H.O. Appears to be absurd and unreliable, and the contention of Mr. Halepota that the witness Wasim examined in the Court is a different person has a considerable force.
17. ' Adverting to the second contention of Mr. Halepota the evidence of P.W. Wasim and S.H.O. Shows that Article 'A' was wrapped in a cloth on which it was written that the same was recovered from accused Jawaid. It has been stated by the S,H.O. That the writing in Urdu appearing on the Article 'A'
18. (case property in the case) with blue ink was written by him in presence of Mashirs but he did not write word `Jawaid' on the case property as it was recovered from accused Raisuddin. In view of above admission of S.H.O. That writing on the cloth in which Article 'A' was wrapped was his handwriting, the explanation that word `Jawaid' was not written by him cannot be accepted. It is also worthwhile to mention here that the said almirah was not locked and according to P.W. Wasim first police and the accused had gone inside the room and thereafter, he and coacher were called, hence there is every possibility that the dagger in question might have been kept by the police.
19. ' From the above discussion we are of the considered view that the prosecution has failed to prove its case beyond reasonable doubt against the appellant and, therefore, we allow this appeal, set aside the conviction and sentence of the appellant and he is acquitted of the charge. He shall be set at liberty forthwith if not required in any other case.
20. ' We had decided the above appeal on 29-8-1989 by a short order and these are the reasons for the same.