1. ' This is a revision against a judgment, dated 12-6-2000 in Criminal Appeal No,25 of 2000. By this judgment, the appeal was dismissed and the conviction of Judicial Magistrate, Mehar was upheld.
2. The Judicial Magistrate by judgment, dated 26-4-2000 in Case No,62 of 1999 had-sentenced the appellant to suffer R.I. For three years in connection with an offence under section 13-D, Arms Ordinance in Crime No,119 of 1999.
3. ' Briefly the facts are that on 31-8-1999, complainant, A.S.-I. Ghulam Mustafa lodged F.I.R. At Police Station Mehar stating that he with his subordinate staff left for patrolling, when they reached Village Khondi they received spy information that three armed persons were standing near Khosan-jo-Graveyard. On reaching they saw three persons standing there who were all arrested on spot. The accused disclosed their names as Irshad Ali, Muhammad Khan and Bakhshal. One pistol bearing Nil number was recovered from the possession of at cused Irshad Ali. From Bakhshal they recovered a hatchet and from Muhammad Khan a Lathi. A case was registered against them and a separate F.I.R. Was registered under section 13-D, Arms Ordinance against Irshad Ali for keeping a unlicensed pistol. Investigation was done and the accused were challaned. Charge was framed and all accused pleaded not guilty. During the trial A.S.-I. Ghulam Mustafa alongwith recovery Mashir and one Ghulam Mustafa were examined. Statements of the accused were recorded under section 342, Cr.P.C. The accused was found guilty for an offence punishable under section 13-D, Arms Ordinance and sentenced to suffer R.I. For three years. An appeal was filed against the conviction and this appeal was dismissed. Against this appeal, the present revision has been filed.
4. ' The revision has been assailed on several grounds including the fact that the evidence produced at the trial was insufficient. The only P.Ws. That the prosecution has relied upon is the complainant who was the Police Officer and another eye-witness and the Mashir. According to the prosecution the three persons were found to be armed with and moving around in suspicious condition.
5. Nothing has come on record to show whether they were indeed involved in a crime or were even attempting to commit a crime. According to the counsel for the appellant there is material contradiction in the statements of complainant and P.W. Whilst one has insisted that the offence could have been committed on 31-8-1999, the other has stated that the incident took place on 31- 9-1999. It has further been pointed out that the appellant has been acquitted in the main case Crime No,118 of 1999 of Mehar Police Station under sections 401 and 34, P.P.C. Hence there was no justification for the appellant to be convicted of a crime which is technically an off-shoot of the main case. According to the counsel, the provision of section 103 was also not adheard to. This has been acknowledged by the Judicial Magistrate who has held that the noncompliance of 103, Cr.P.C.
6. Was not fatal to the case.
7. The entire case from the judgment of the Judicial Magistrate only hinges on the fact that the accused was arrested and one unnumbered unlicensed pistol was recovered. To my mind to award such a harsh judgment of three years' R.I. Is unfair. I have seen the judgment, dated 12-6- 2000 passed by the learned Sessions Judge where he has acquitted all of them and set aside the conviction and sentence. While setting aside the conviction and sentence, the learned Judge has observed that mere standing at some place without any intention does not constitute an offence purely because they have some weapons with them. The villagers always carry Lathi and hatchets and merely carrying the same is not an offence.
8. The three persons were arrested from the graveyard which is surrounded by villages. There is no independent witness to the entire episode even though it is day time incident and there should have been no problem for the police to have obtained an independent witness. The complainant alongwith the P.Ws. Are all members of police force. The chances of police thrusting an unnumbered pistol into the hands of the applicant cannot be ruled out. Whilst reading the evidence of Ghulam Mustafa son of Bahadur Khan, Passand Ali son of Ado Khan and another Ghulam Mustafa son of Faiz Muhammad, I have noted that there are sharp contradictions in the narration of the facts. One person says that when they reached the graveyard they saw three persons there standing and they were immediately caught, it was 1-30 in the afternoon. Another person confirms that the three persons were standing, the third person then says that the three persons tried to run away on seeing the police but were caught. Similarly there is further material contradiction in the cross-examination. The route taken on reaching the place of Vardat and the return journey is also separately mentioned. The time taken for preparation of Mashir is also mentioned separately. Whilst one person talks about five minutes in writing the memo. Another talks about 15 to 20 minutes, the third avoided to answer this question. Nobody seems to remember who was the duty officer at the time when F.I.R. Was registered. There are several lacunas in the evidence and the trial Court should have appreciated the same. The trial Court should have also remembered that a case against a person has to be proved beyond reasonable doubt specially when the accused has denied the charge against him and has insisted that he is innocent.
9. ' Under the circumstances and keeping the above in mind, the sentence and conviction passed against the accused is set aside and he is free to go. Since he is on bail, therefore, his bail bonds stand discharged. The revision application was allowed by a short order, dated 16-4-2001 and above are the reasons.