1. ' RAJA QURESHI, J.--- This appeal is directed against the judgment announced, by the Special Court No,1 (S.T.A.), Hyderabad on 14-5-1996, whereby the appellant has been convicted and sentenced to suffer R.I. For three years and to pay fine of Rs,4,000 or in default of payment of fine to further undergo R.I. For six months more. However, benefit of doubt under section 382-B, Cr.P.C. Had been given to the appellant as the appellant was arrested on 21-8-1995 and since then he had remained in custody.
2. ' Briefly the facts of the case are that one A.S.-I., Abdul Sattar Solangi of Police Station Market was on patrolling of the area alongwith his subordinate staff on 21-8-1995. He is stated to have reached near O.P.D. Chowk and saw the appellant who upon seeing the police party started walking quickly.
3. Upon suspicion, the police party apprehended him and on personal search A.S.-I. Abdul Sattar Solangi recovered one TT big mauser loaded with five live bullets in its magazine from the left fold of his Shalwar. Upon demand, the appellant was unable to produce any arms licence in respect of the weapon possessed by him. Such recovery was stated to have been made in the presence of Mashir H.C. Ghulam Hussain and P.C. Sudheer Ahmed. After search and recovery, the appellant is stated to have been brought to the police station and after investigation, the appellant was sent up to face trial before the Special Court No,1 (S.T:A.), Hyderabad.
4. ' At the stage of trial, prosecution had examined two witnesses namely, the complainant, A.S.-I.
5. Abdul Sattar Solangi and the Mashir of arrest and recovery namely, H.C. Ghulam Hussain.
6. Thereafter, statement under section 342, Cr.P.C. Was recorded and the appellant opted not to give any statement on oath. The appellant, however, examined two defence witnesses namely, Majeed Qureshi and Muhammad Ali Qureshi, whereafter the appellant was convicted.
7. ' The contention of the learned counsel before us is that the alleged weapon was not sent to forensic and ballistic expert for opinion so as to deterniine the nature and calibre of the weapon and as to whether it was automatic, semi-automatic or for that matter was it in working condition.
8. The place of arrest has been canvassed before us to be thickly populated and commercial area but no effort was made by the police to join any person from the public or for that matter nothing has come on record that such effort was made and members of the public had refused to join as Mashirs of recovery. Further, grounds of attack against the impugned judgment are that property in question was not sealed at the spot and for that matter the same was foisted upon the appellant with an ulterior motive on part of the police. Absence of private Mashirs was stated before us to be violative under section 103 of the Cr.P.C.
9. ' It has been contended before us that till now the sentence awarded by the learned trial Court alongwith benefit of section 382-B, the appellant has already served out complete sentence but the appeal ought to be disposed of on merits as this conviction and sentence recorded by the learned trial Court would for the rest of the life of the appellant operate as a stigma on his career, character and, therefore, the appellant should not suffer on account of an act of the Court in terms of delay in hearing of the present appeal.
10. ' On the other hand, the learned Assistant Advocate-General has very fairly and frankly conceded that the impugned judgment, based on the evidence having been brought on record, cannot be sustained as private Mashirs of recovery are not there and as such provisions of section 103, Cr.P.C.
11. Are violated. Further, it has been conceded that the nature of weapon as to whether the same being automatic or semi-automatic or for that matter in working condition is not also ascertainable as there is no report of the ballistic expert and, therefore, benefit, if any, ought to be accorded to the appellant.
12. We have examined the merits of the appeal and we find that there is no report of the ballistic expert and, therefore, it will be highly risky to uphold the impugned judgment when it has not come in evidence or on record of these proceedings that the alleged weapon stated to have been possessed by him, was in working condition or automatic or for that matter semi-automatic.
13. Absence of private Mashirs violates the provisions of section 103, Cr.P.C. Especially in view of the fact that no effort has been made to join the members of the public so as to comply with the mandatory provisions of section 103, Cr.P.C. Keeping in view the fact that nothing has come on record to show that effort in such direction of having private Mashirs was made, hence it would become .Difficult to uphold the impugned judgment.
14. ' Keeping in view that the appellant had all along remained in custody w,e,f, 21-8-1995 and has already served out the entire sentence, yet stigma against the appellant of having been convicted continues to remain on record. ' We would, therefore, with the consent of the learned Assistant Advocate-General, set aside the impugned judgment by giving benefit of doubt to the appellant, allow this appeal. Impugned judgment is hereby set aside and the present appeal stands allowed.