1. ' Accused/applicant Dur Muhammad has, through the present criminal revision application, challenged the judgment dated 23-10-1993 whereby learned Sessions Judge, Khairpur dismissed his Criminal Appeal No, 20 of 1993, whereby the accused/applicant had challenged the judgment dated 7-9-1993 passed by Civil Judge & F.C.M., Gambat convicting the accused/applicant under section 13-D of the Arms Ordinance and sentenced him to undergo R.I. For one year and to pay a fine of Rs,5,000 and in default of payment of fine to undergo R.I. For further period of 4 months.
2. ' Briefly stated prosecution case is that on 10-10-1989 at about 8-30 a.m. H.C. Abbas Dino alongwith H.C. Muhammad Haneef and P.C. Mukhtiar Hussain left P.P. Khuhra for petrol duty. At about 9-30 a.m. They saw two persons coming on the motorcycle towards them. The person riding on pilion was holding a double-barrel gun. Police party stopped them and demanded licence of the gun from that person who disclosed his name as Dur Muhammad Wassan. The person who was driving motorcycle gave his name as Abdul Rahim. Petitioner Dur Muhammad Wassan produced a licence before the police party, but the same was proved to be a licence of another gun hence the gun was secured and the petitioner was arrested. The motorcycle was also secured as they have no valid papers for the same. Finally Dur Muhammad Wassan petitioner was challaned and convicted as mentioned above. Mr. Maqbool Ahmad Awan learned counsel for the petitioner submitted that both the lower Courts did not give much importance to the fact that in spite of the availability of private persons, none was asked to act as Mashir. Mr. Awan pointed out that both the prosecution witnesses have admitted that there were hotels and shops around the place of recovery, and so many private persons were present there. He pointed out that, under the circumstances, the prosecution could not take the plea that since no private person was available, hence the other two members of the police party acted as Mashirs, any that they were as good witnesses as private persons. He placed reliance on an unreported judgment in Criminal Revision Application No,20 of 1989 whereby my brother Mukhtar Ahmed Junejo, J. Dealing the same proposition of law observed as under: "In the case of Miro v. State 1979 PCr.LJ 721 it was held by a D.B. Of this Court that where the prosecution had examined only two police officers who were members of a party intercepting the accused, it had failed to establish guilt of the accused beyond reasonable doubt. In the case of Muhammad Azim v. State 1977 PCr.LJ 671 a learned Single Judge of this Court observed that usually during Nakabandi operations, Mashirs from the public are also taken but in the cited case not a single independent Mashir had been cited and that since there were only two police officers appearing as witnesses in the cited case, the prosecution story was entirely doubtful and the possibility of the accused having been falsely implicated in a case of that nature cannot be excluded. In the case of Ghulam Mustafa PLD 1980 Kar. 343 a learned Judge of this Court disbelieved the prosecution story that when five police constables could be seen at a bridge from a distance the accused would have walked into their midst with his rifle, recovery of which was not witnessed by any independent Mashir. Learned Single Judge set aside the conviction. The authorities cited on behalf of the applicant apply to the instant case on all the fours. Case of Sohail Amjad 1986 SCM R 1482 cited on behalf of the State is not applicable to the present case, because in the cited case the recovery was effected from the accused travelling in a public motor vehicle, where the passengers were not willing to become witnesses. It was in such circumstances that the Supreme Court of Pakistan held that passengers travelling in a moving vehicle, unless coerced, are not willing to become witnesses and in such a case evidence of police witnesses can be believed when they were not shown to be inimical to the accused. It was in circumstances of that case that the observation was made that there was no law that the police official cannot be believed."
3. ' Mr. Abdul Sattar Chohan, learned counsel for the State contended that it has been observed by the Supreme Court that testimony of a member of police force could not be brushed aside on the sole basis that he was a police officer. Such testimony can be as good as that of a private person.
4. He further submitted that no material contradiction finds place in the statements of the two witnesses examined by the prosecution. As such the lower Courts were justified to convict and sentence the petitioner, as the prosecution had fully established the charge against him.
5. ' Under the circumstances of the present case, I do not fmd much force in the contention of the learned counsel for the State, as it has come on record that shops and hotels were situated around the place of recovery and so many private persons were available. Furthermore it was day time.
6. Following the view expressed by the Single Judge of this Court as quoted above, I fmd that the testimony of two police officers in the present case have lost their credence, as ample opportunity existed to procure independent witnesses to act as Mashirs of recovery. One of the witnesses clearly stated that so many private persons were available at the place of recovery but they did not ask any one of them to act as Mashir. Furthermore the Head of the Police Party H.C. Abbas Dino had admitted that he was transferred from P.S. Kot Diji on the complaints of Wassans. It may be noted that the present petitioner is also Wassan by caste and he has pleaded previous enmity with the aforesaid H.C. Abbass Dino.
7. Accordingly I have come to the conclusion that the prosecution had failed to establish the charge against the petitioner without reasonable doubt. Consequently the present revision is allowed and the conviction and sentence awarded by the trial Court and maintained by the appellate Court is hereby set aside. The petitioner is set at liberty if not required in any other case. These are the reasons of the short order dated 13-2-1994.
8. Revision .