1. The applicant has called in question the judgments dated 6-1-1999 and 3-11-1999 passed by the Judicial Magistrate IInd Nousheroferoze and IInd Additional Sessions Judge Nousheroferoze whereby the applicant was convicted and sentenced to undergo R.I. For 1 year and to pay fine of Rs,1,000 or in default to further undergo R.I. For one month and subsequently the applicant filed an appeal before the Sessions Judge Nousheroferoze which came on the file of IInd Additional Sessions Judge who also maintained the judgment dated 6-1-1999 passed by the Judicial Magistrate, hence this Criminal Revision under section 439, Cr.P.C. The brief facts of the case are that F.I.R. No,53 of 1996 registered by S.H.O. Padidan on 25-12-1996 at 4-00 p.m. Stating therein that during the interrogation of the arrest accused Abdul Sattar son of Ahmed Ali Bhatti in Crime No,53 of 1996 under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, the said accused Abdul Sattar confessed his guilt and became ready to produce his share in the robbed property and the revolver used in the crime.
2. S.H.O. Illahi Bux accompanied by P.C. Riaz Ahmed, P.C. Muhammad Hassan, and his other subordinate staff in uniform, in Government vehicle and took accused Abdul Sattar who was in custody and private Mashirs Muhammad Hassan and Muhammad Hanif in the said vehicle, after making Entry No,14 at about 17-00 hours, when they reached near the house of accused Abdul Sattar alias Billo in Ward No,9 of Railway Town Padidan, the accused voluntarily led the police party and private Mashir inside the room of his house and produced robbed property i,e, gold, V.C.R., Telephone Sets and one revolver of 32 bore and their live bullets. Enquiries were made with regard to licence of the revolver and the accused disclosed that the revolver is unlicensed. He was arrested for that offence and Mashirnama was prepared in presence of the aforementioned Mashirs. The recovered article and accused were brought at Police Station and a separate case under section 13-E of the Arms Ordinance was registered against him and Afterwards he was challaned before the learned Judicial Magistrate, Nousheroferoze. The prosecution in support of their case examined Investigating Officer S.H.O. Illahi Bux P.W.1 at Exh.4, who produced the copy of Mashirnama Exh.4/1, copy of F.I.R. Exh.4/B and Mashir of recovery Muhammad Hussain P.W.2 at Exh.5. Accused in his statement under section 342, Cr.P.C. Denied the allegation have led the police party to his house and has produced the robbed property. He further stated that these articles have been foisted upon him, as alleged by the complainant in Crime No,53 of 1996 as the Mashir is a friend of the complainant of the main case and he is innocent. Accused also examined Rasool Bux as his defence witness. The trial Court after hearing the learned counsel for the parties convicted and sentenced the applicant in terms as stated above. The applicant preferred an appeal before the learned Sessions Judge, Nousheroferoze, which came on the file of IInd Additional Sessions Judge, Nousheroferoze, who by his judgment dated 3-11-1999 maintained the Judgment dated 6-1-1999 passed by IInd Judicial Magistrate, Nousheroferoze. Learned counsel for the applicant have argued that the applicant has been acquitted in main case being Crime No,53 of 1996 by learned IInd Additional Sessions Judge, Nousheroferoze and in that case the Mashir Muhammad Hussain has not supported the version of the prosecution.
3. Learned counsel for the applicant have further contended that the recovery of revolver of 30 bore has taken place from the house of the applicant from the box and have submitted that other family inmates of the applicant also reside in the said house and such recovery is doubtful and it cannot be said that the recovery has taken place from the possession of the applicant exclusively and has placed reliance on 1997 PCr.LJ 818-819. They have further contended that the said revolver has not been sealed at the spot. The said revolver has not been sent to the Ballistic Expert, Learned counsel for the applicant have further contended that the said revolver has not been shown to the applicant at the time of recording of his statement under section 342, Cr.P.C. Which amounts to an illegality. They placed reliance on 1998 PCr.LJ 1368. They have also drawn my attention to Station Diary, which has not been produced by the prosecution at the time of examination of the Investigating Officer which ought to have been produced by the prosecution and non-production of such document is in contravention of the provision and the benefit of doubt goes to the accused. They have placed reliance on 1998 PCr.LJ 1287 and 1998 PCr.LJ 1368. They have further drawn my attention on the statement of applicant under section 342, Cr.P.C. Which did not bear the signautre of applicant and have contended that this is in violation of section 364(2), Cr.P.C. And have finally argued that the impugned judgment be set aside. Mr. Abdul Sattar Soomro, learned counsel for the State has not controverted the grounds agitated by the learned counsel for the applicant and has not supported the impugned judgment and has very frankly recorded his no objection for setting aside the same. I have heard Mr. A.M. Mobeen Khan and Mr. Muhammad Daud Bloch learned counsel for the applicant and Mr. Abdul Sattar Soomro, learned State Counsel at length and have examined the material available on record and the R & P and the depositions of the witnesses.
4. Admittedly,' the applicant is said to have been arrested on 16-12-1996 and recovery has been effected on 25-12-1996 and such delay goes unexplained by the prosecution that the applicant remained in their custody and the recovery has been effected from the house of the applicant where the family inmates of the applicant also reside and also it cannot be termed the exclusive possession on the part of the applicant. I have also examined carefully the deposition of Investigating Officer and nowhere the prosecution got filed the Station Diary No,14 of 1996 to strengthen the version of the prosecution that the police alongwith accused left the police station for the purpose of recovery and non-production of such Station Diary has caused doubt in the version of the prosecution. I am being fortified by Division Bench decision of this Court as reliance has been placed by the learned counsel for the applicant on a case of Arif Khan v. The State reported in 1998 PCr.LJ 1287 and Farid Ahmed Langhra v. The State reported in 1998 PCr.0 1368. I have also gone through the statement of the applicant recorded under section 342, Cr.P.C. And nowhere the revolver has been shown to the applicant at the time of recording of his statement under section 342, Cr.P.C. I have also examined very carefully the material available on the record and the evidence of the prosecution witnesses. The recovered revolver has not been sealed at the spot nor sent to the Ballistic Expert. I have also taken into consideration the fact that one private Mashir who has been associated by Investigating Officer on the factum of recovery who has not supported the recovery in the main case being Crime No,53 of 1996 whereas in the instant case he has supported the factum of recovery. Be that as it may, the prosecution has failed to examine private Mashirs although two private Mashirs were bound by police during the process of recovery but one Muhammad Hussain has been examined by the prosecution who is fast friend of the complainant in Crime No,53 of 1996 and could not understand as to why the another Mashir has been given up by the prosecution. No reasons have been assigned except that since one private Mashir Muhammad Hussain has supported the version of the prosecution and then there is no need to get examined another private Mashir. However, I find the gross contravention of the provision of section 103 read with section 165, Cr.P.C and in this regard reference can be made to a case of Muhammad Mansha v. The State reported in 1995 SCM R 1414.
5. In view of the above discussion and also raising no objection from the side of the learned State Counsel and the aforementioned law, I am of the considered view that the prosecution has failed to prove its case beyond reasonable doubt,against the applicant. Accordingly, I set aside the impugned judgments dated 6-1-1999 and 3-11-1999 passed by the Judicial Magistrate on 6-1-1999 and Additional Sessions Judge on 3-11-1999 Nousheroferoze. In the result this Criminal Revision Application is allowed, the applicant is on bail and his bail bond stands discharged.