1. ' RAJA QURESHI, J.--- This appeal is directed against the judgment, dated 20th May, 1996, passed by the Court of Special Judge, Special Court No,II, Suppression of Terrorist Activities Hyderabad, convicting the appellant under section 13-D, Arms Ordinance and the appellant has been sentenced to suffer R.I. For six years and to pay a fine of Rs,15,000 or in default to suffer R.I. For one year more.
2. ' Briefly the facts of the case are that on 17-4-1996 Station House Officer, Ahmed Hassan of Police Station Phulledyoon alongwith his subordinate staff had left the police station in police mobile at 2- 15 p.m. Vide diary entry No,9 to arrest the absconders. Further, the case of the prosecution is that at about 5-30 p.m. When they had reached the turn of "Aatna", a spy information is stated to have been received that Rajan Chandio alias Imamdin was available in the house of the appellant.
3. Hence the police party took witnesses/Mashirs namely, Bhoro Kooli and Haji Murad Shar from there and, accordingly, proceeded towards the house of the appellant where the police party is, stated to have reached at about 6-00 p.m. On reaching there, the police party is stated to have found one person armed with K.K. Coming out of the house of the appellant and upon seeing the police he tried to run towards the Jungle but was ultimately encircled and captured. Police is stated to have secured one K.K two magazines and 44 live bullets from the possession of the appellant. Such person gave his name to be that of the appellant. Upon demand, the appellant is stated to have not produced any licence for the weapon and ammunition. Accordingly, he was arrested. Property was stated to have been secured under the Mashirnama, whereafter the appellant alongwith the property was stated to have been brought to the police station where F.I.R. Was registered and upon completion of investigation, the appellant was sent up to face trial before the Special Court No,II Suppression of Terrorist Activities, Hyderabad on 25-4-1996.
4. ' That on 13-5-1996, the learned trial Court framed the charge against the appellant which for the purposes of ready reference is reproduced hereinunder and accordingly, the plea of the appellant was recorded.
5. "Charge ' I, Muhammad Azeem Panwar, Judge, Special Court No,II, Suppression of Terrorist Activities, Hyderabad, do hereby charge you.
(1) Sajjan son of Khuda Bux Pahore, as follows:-- ' That you on or about 17-4-1996 at 6-00 p.m. Near your house in Deh Allah Khai Taluka Khipro, were found going armed with one K.K., two magazines and 44 live bullets, without licence and thereby committed an offence punishable under section 13-D, Arms Ordinance and within the cognizance of this Court.
6. ' And I hereby direct that you be tried by this Court on the abovesaid charge.
7. (Sd.)
8. Judge Special Court No,II, ' Suppression of Terrorist Activities, ' Hyderabad "
9. ' To the above charge, the appellant had pleaded not guilty.
10. ' Two prosecution witnesses namely, Ahmed Hassan and Bhoora were examined, whereafter the statement under section 342, Cr.P.C. Was recorded. No defence witnesses were examined by the appellant.
11. ' The learned counsel for the appellant has contended that P.W.1 Ahmed Hassan has only stated in his evidence that the property lying in Court is the same without giving the description and identity of the property alleged to have been recovered from the appellant. He has invited our attention to the evidence of P.W.2 who, according to the submissions made before us, has stated that the property lying in the Court is the same without any identity or description. The learned counsel has further contended before us that the report of the Ballistic Expert has not been produced to show as to whether the said K.K. Was functional or not and for that matter the learned counsel has submitted that the appellant has not examined himself on oath but nowhere any question has been put to the appellant suggesting enmity which he claims to have with the prosecution witnesses. It has been contended that the F.I.R. Has been authored by the S.H.O. Who had investigated the matter himself. Enmity was contended to have been suggested to the Investigating Officer and finally the Mashirnama does not reflect the property to have been sealed on the spot and hence prosecution has miserably failed to establish the recovery.
12. ' On the other hand, the learned State Counsel has very fairly confirmed the aspect that the property is not reflected to have been sealed and there is no report of the Ballistic Expert to confirm as to whether the weapon alleged to have been recovered from the appellant was functional.
13. We have anxiously considered the submissions made before us and for safe dispensation of justice we would always look for corroborative evidence to believe or disbelieve the prosecution evidence against the appellant. Hence upon examining the Mashirnama, we do not find anything to suggest that the property, in consequence of the search recovered from the person of the appellant, was sealed in the presence of the Mashirs or for that matter whether the property was sent to the Ballistic Expert for certification to the effect that the weapon in question was functional or otherwise. Even during the trial when prosecution evidence was recorded, the weapon which has been produced has neither been described nor the details of such weapon have been given.
14. Evidence only to the extent has come on record that the property lying in ,the Court is the same. In the absence of the weapon and ammunition having not been sealed upon recovery and in the absence of the said weapon having not been certified to be functional as well as in the absence of the weapon and ammunition not being described in evidence renders the case against the appellant to be doubtful. We further find that the Investigating Officer who is the S.H.O. Of the police station has acted as a prosecutor, investigator and a witness in respect of the proceedings against the appellant. While considering and appreciating evidence, we have examined the principles laid down in 1992 PCr.L1 p.828, 1994 PCr.LJ 478 and 1994 PCr.LJ p.665. We feel that the evidence that has been brought on record does not fall in line for sustaining the conviction if examined in the light of the principles laid down in the referred citation.
15. ' Hence for the foregoing reasons, the prosecution evidence is not sufficient and liable to sustain the conviction. Consequently, the appeal is accepted and the conviction and sentence of the appellant is set aside. He is acquitted of the charge and shall be released forthwith if not required in any other case.