1. ' FAIZ MUHAMMAD QURESHI, J.---Today this appeal was fixed for hearing of application under section 426, Cr.P.C. By consent it was agreed by the learned counsel for defence and Mr. Gul Hassan Solangi, Advocate for the State that the matter is short and let the R&Ps be called from the Court of Special Judge, S.T.A., Larkana. Matter was deferred till 1-00 p.m. Matter has been taken up and the R&Ps of the Special Case No,406 of 1997 have been received.
2. ' The present appellant has called in question the impugned judgment, dated 7-5-2001 passed by the learned Sessions Judge and Special Judge, S.T.A. Larkana in Special Case No, 406 of 1997, under section 13(d) of the Pakistan Arms Ordinance, 1965, being Crime No,8 of 1997 registered with Police Station Darri Larkana, whereby the appellant has been convicted and sentenced to suffer R.I. For three years. He has also been awarded benefit of section 382B, Cr.P.C. For the period he has remained in jail as under trial prisoner and the same be deducted from the sentence awarded to him.
3. ' Prosecution story, in brief, is that on 4-2-1997 at about 1-30 p.m. Complainant S.I.P. Shah Muhammad Bhutto lodged the F.I.R. At Police Station Darri, stating therein that on the above date under Roznamcha Entry No,6 at about 10-00 a.m. He alongwith his subordinate staff H.C. Allah Warrayo, P.C. Muhammad Ismail and others left police station in Government mobile for patrolling.
4. After patrolling at different places when at about 12-00 noon they reached in the public street near Blue Line Bus Office, complainant saw the present accused/appellant standing there, who after seeing the police tried to slip away but was apprehended on the spot. On enquiry, accused disclosed his name as Deedar Ali son of Ahmed Khan Gopang, resident of Kamber. S.I.P. Took the personal search of the accused and secured one T.T. Pistol of .30 bore, made in China, from his possession and the pistol was loaded with four live bullets. Complainant thereafter prepared the Mashirnama of arrest and recovery in presence of H.C. Allah Warrayo and P.C. Ghulam Shabbir and obtained their signatures. On demand, accused failed to produce the licence of the pistol.
5. Complainant thereafter, brought the accused and the property at Police Station Darri where he lodged the F.I.R. Against the accused.
6. ' After usual investigation appellant/accused was challaned in the trial Court, where, to the charge framed against him, the appellant/accused pleaded not guilty and claimed the trial.
7. ' During the trial prosecution examined P.Ws. Inspector Shah Muhammad Butto (complainant) and Mashir H.C. Allah Warrayo.
8. ' Statement of accused under section 342, Cr.P.C. Was then recorded, in which the appellant/accused denied the case of prosecution.
9. ' Learned trial Court formulated the point for determination as under:-- "Whether on 4-2-1997 at about 12-00 noon in the common street near the Blue Line Office, Larkana accused Deedar Ali son of Ahmed Khan Gopang was going armed with an unlicensed T.T. Pistol of .30 bore loaded with four live bullets, as alleged by the prosecution?"
10. ' Learned trial Court after having gone through the evidence adduced by the prosecution and material available on record passed the judgment in terms as stated above.
11. ' Mr. Muhammad Ayaz Soomro learned Advocate for the appellant has argued that the recovery of T.T. Pistol is said to have been effected from the possession of the appellant on 4-2-1997 at 12-00 noon from the common street near Blue Line Office, Nawa Tak Mohalla, Larkana and the complainant S.I.P. Shah Muhammad Bhutto, S.H.O. Of Police Station Darri Larkana has associated two Police Mashirs, namely and respectively H.C. Allah Warrayo and P.C. Ghulam Shabbir.
12. According to him it is a thickly populated area and no independent Mashir has been associated by the complainant S.H.O. Shah Muhammad Bhutto and there is flagrant violation of mandatory provisions of section 103, Cr.P.C. He has further contended that such recovery is to be proved through disinterested Mashir/witnesses and in this regard he had placed reliance on a case reported as Yameen Kumar v. The State 1990 PCr.LJ 275 wherein the Honourable D.B. Of this Court has held that "the requirement of section 103, Cr.P.C. Are mandatory and independent Mashirs are to be associated in order to minimize the chances of false implication of the accused and guard against chicanery and concoction on the part of police. Mr. Soomro has further contended that the property was not sealed on the spot in order to send the same to the Ballistic Expert for his report.
13. He has further contended that the entry No,6 of the Roznamcha, under which the police party claims to have left the police station for patrolling, has not been produced before the trial Court. He has further contended that no weapon has been shown to the appellant at the time of recording of his statement under section 342, Cr.P.C. And in this regard he has placed reliance on 1996 PCr.LJ 1410 and 1998 PCr.LJ 1368.
14. ' On the other hand, Mr. Gul Hassan Solangi, Advocate for the State has very frankly conceded to the arguments of the learned defence counsel and has raised no objection to the grant of appeal after looking into the R&Ps of the case and has also not supported the impugned judgment.
15. ' We have heard the learned counsel for the parties and have gone through the judgment and we have also examined the R&Ps. Of the case and the case-law produced by the learned defence counsel. Admittedly no independent Mashir has been associated on the factum of recovery although; the place of recovery is thickly-populated area. Even police have failed to associate any independent Mashir. Admittedly the property has not been sealed at the spot and this fact has not been controverted by the learned counsel for the State. Admittedly no weapon has been shown to the appellant at the time of his examination under section 342, Cr.P.C. Admittedly the weapon has not been sent to the Ballistic Expert for his report. Admittedly the whole case of the prosecution depends upon the Entry No,6, whereby the prosecution has established its case that the police party left police station for patrolling and found the present appellant going armed without licence.
16. In view of the law submitted by Mr. Muhammad Ayaz Soomro counsel for appellant, we are being fortified by the law and we see the illegalities on the part of the prosecution and we give benefit of doubt to the present appellant. We, therefore, set aside the impugned judgment passed by the trial Court. In result appeal is allowed. Appellant shall be released forthwith, if not required to be detained in any other case.