' GHULAM NABI SOOMRO, J.--- The appellant Sartaj Khan has assailed his conviction and sentence under section 13-D of the Arms Ordinance passed by the learned 1st Additional Sessions Judge/Special Court (S.T.A.), Karachi South, sentencing the appellant to R.I. For four years and fine of Rs,5,000 in default whereof to suffer S.I. For three months more. The appellant has been given benefit of section 382-B, Cr.P.C.
2. The prosecution case briefly stated is that on 20-10-1993 at 1.15 hours opposite C.O.D. School, Stadium Road, Karachi, the appellant was found going in a car alongwith his four other companions. On search three Kalashnikov Rifles were secured from the occupants of the car including one K.K. Rifle from the appellant. A Mashirnama of arrest and recovery in presence of two independent public men was prepared on the spot. The accused and property were taken to police station and separate F.I.Rs, lodged thereat for the aforesaid offences. The appellant was challaned at the conclusion of the investigation to face the trial.
3. Charge against the appellant was framed under section 13-D of the Arms Ordinance to which he pleaded not guilty and claimed to be tried.
4. The prosecution examined only one witness namely Sultan Masood Kiyani, Inspector Police (complainant) in the case as. P.W.1, however, one more witness was examined as Court-witness No,1 namely Ghulam Abbas Jaffri, A.I.-G. Criminalistic Division, Karachi, who has deposed that he examined all the three K.K. Rifles and found the original numbers on the body of the K. Ks. Erased and deciphered due to deep eraser.
5. However, after the examination of the complainant P.W. Sultan Masood Kiyani, after his examination in Court, the Advocate for the appellant prayed for closing up prosecution side on the ground that the accused-appellant claims the case property as his own. There is no order .Passed on this application nor any such prayer made by the prosecutor, but the case was put off to the next date for the statement of the accused under section 342, Cr.P.C.
6. The accused-appellant in his statement replied that the K.K. Rifle secured from his possession was his own rifle and he had a valid licence for the same. Besides, he was also holding a permit for carrying the same outside.
7. The appellant also examined himself on oath deposing that the K.K. Rifle was his own and he possessed a valid licence for it issued by the Government of Pakistan. He further deposed that he was arrested from his house alongwith the co-accused and was asked to produce K.K. Rifle, which he produced before police and there were no Mashirs. He further deposed that he had been involved earlier by his rivals in a murder case in which he was acquitted and the present case was cooked up by police at the instance of his rival group. He also deposed that he was kept at police station under wrongful confinement for five days and on his failure to meet the demand of illegal gratification he was sent up in this false case.
8. We have heard Mr. Kh. Naveed Ahmed, learned counsel for the appellant as well as Mr. Habib Ahmed learned' A.A.-G. For the State and have also perused the entire evidence on record and the impugned judgment.
9. The prosecution has examined only one witness in this case. He is (Sultan Masood Kiyani, Inspector C.I.A.) the complainant, who has also investigated the case. Ghulam Abbas Jaffari, A.I.-G.
Criminalistic Division was examined as a Court-witness being Ballistic Expert. No other witness/Mashir was examined in the case. The evidence of the Ballistic Expert is to the effect that he had examined the three K.K. Rifles and original numbers on them were erased on the body of rifles.
His evidence in our view does not lend any support to prosecution case.
10. The record reveals that the case was put off for statement of accused on the application made by defence counsel on the same day on which the sole prosecution witness/complainant/Investigating Officer was examined. There appears nothing on record to suggest whether any objection was raised by prosecution or a prayer to examine recovery witnesses was made.
11. The assertion of the appellant that he possessed a valid licence of a K.K. Rifle and a permit to carry the same for his self-protection, was verified from the Ministry of Interior Division, Government of Pakistan, Islamabad and it was confirmed by the said Ministry that the appellant was a genuine licence holder of a K.K. Rifle.
12. Under the circumstances, it was the duty of prosecution to establish that the K.K. Rifle secured from the appellant was not the appellant's own rifle but it was some other rifle.
13. Non-examination of remaining P.Ws./Mashirs is not understandable. They are not shown to have been won over by the appellant or turned hostile to prosecution.
14. Appellant's evidence on oath, as his own defence witness has not been shattered in cross- examination. The same appears to be believable. It takes us to believe the defence version to be more truthful. The prosecution by examining only the complainant, who is also the Investigating Officer of the case, has not discharged its burden of proving the guilt of the appellant and has not been able even to establish that the prosecution story is truthful_
15. In the above circumstances, we hold that the prosecution has utterly failed to prove the guilt of the appellant. We, therefore, accept his appeal and set aside his conviction and sentence and acquit him in the case. The appellant be released forthwith from jail, if not required to be detained in any other case.
16. Above appeal was allowed by a short order, dated 5-12-2000, while these are the reasons for the same.