' This appeal No,863 of 2000 has emerged from the judgment passed by Ch. Abdul Sattar, Additional Session Judge, Sialkot, dated 25-5-2000 whereby the learned Judge convicted and sentenced Moazzam alias Mauji appellant to undergo R.I. For 3-years under section 13 of Pakistan.
Arms Ordinance 1965 and also to undergo 7-years R.I. Under section 13-A of the Ordinance ibid, however, benefit of section 382-B, Cr.P.C. Was extended to him, in a case bearing F.I.R. No, 307/98 registered with Police Station Kotwali, District Sialkot, under section 13 of Arms Ordinance XX of 1965.
2. Some relevant facts for the purpose of disposal of this appeal are that on 26-7-1998 at 9-35 a.m.
During investigation of case bearing F.I.R. No,359, registered. With Police Station Kotwali, District Sialkot,on 29-12-1997, under sections 302/324/34, P.P.C. On his disclosure Moazzam alias Fauji led to the recovery of Mauser. 30 bore with magazine having 10 bullets and a hand-grenade by carrying police employees at his house. So the above said case was registered under the Arms Ordinace.
3. After completion of necessary investigation the challan was submitted in Court . P.W.1 Khalid Pervaiz Constable No,1094, a recovery witness, P.W.2 Abdul Majeed constable No,181, another recovery witness, P.W.3 Muhammad Faiz A.S.I. Police Station Kotwali, who drafted formal F.I.R. And P.W.4. Mazhar Hussain S.I., appeared for the prosecution. Report of one hand-grenade Russain made was produced as documentary evidence and that the prosecution case was closed.
4. At the close of the prosecution case statement of the accused was recorded under section 342 Cr.P.C. Wherein he denied the allegation as levelled by the prosecution and pleaded that his friend Nadim was murdered at the hands of one Khalid alias Pappu .Sulehria; that he, Muhammad Asif and Ilyas were the witnesses of that murder but the police in connivance with said Khalid registered a case of cross-firing and that he, Muhammad Asif and Ilyas were placed as accused on one side; that Malik Nadeem S.I./S.H.O. Was complainant of that murder case and that the police in order to strengthen that murder case planted recoveries upon him and on Asif and Ilyas his companions. He did not get his statement recorded under section 340(2) Cr.P.C. Anyhow, he produced copy of F.I.R. No,359/97 registered at Police Station Kotwali, under sections 302/324/34 P.P.C. (Exh.D.A) as his documentary evidence and he closed his defence evidence. After hearing the learned counsel for the parties the learned Judge arrived to this conclusion that the prosecution has proved its case, therefore, the appellant was convicted and sentenced as mentioned above.
Hence this appeal.
5. I have heard the learned counsel for the parties and have gone through the relevant record placed before me.
6. Learned counsel for the appellant mainly stressed on a point that in case of Mauser.30 bore no report was produced by the prosecution and that in case of recovery of hand-grenade no expert was produced; that the report Exh.P.G allegedly written by an expert was brought on the record whereas there was no proof on the record that the writer of this report was an expert keeping in view the provision of section 510, Cr.P.C. And that in absence of recording of statement of the expert the report could not be accepted nor there was any evidence on the record to believe that mouser.30 bore and the hand-grenade were actually the fire-arm - explosive material. He referred to the case reported in Gulab v. The State, 1985 PCr.LJ 1617, Muhammad Ali v. Nazra and others NLR 1985 Criminal 461, INusrat alias Nusree v. The State, PLD 1994 Lahore 93, Messrs National Cotton Ginner and another v. Messrs Granulars (Pvt.) Ltd. PLD 1994 Lahore 97, Qutab-ud-Din alias Qutaba and others v. The State 1998 PCr.LJ 204 Lahore, a letter No,17712 Genl./I.G dated Lahore, the 20th December, 1990 from the Registrar Lahore High Court, Lahore addressed to all the District & Session Judges in the Province of Punjab, Muhammad Ramzan alias Jana v. The State 1998 PCr.LJ 210 Lahore, Sultan and others v. The State, 1987 SCMR 1177; Nabi Bakhsh alias Bugga v. The State 2001 MLD 823 Lahore, Iftikhar Ahmad alias Dani v.The State, PLD 1995 Lahore 606, Ashiq Hussain and another v. The State 2001 PCr.LJ 722 Lahore, Muhammad Siddique v. The State, 2001 PCr.LJ 729 Lahore, Haji Sabir and 9 others v. The State, 2001 PCr.LJ 754 Quetta, Tariq Pervaiz v. The State 2001 PCr.LJ 767 Lahore, Muhammad Afzal v. The State 2001 PCr.LJ 72 Federal Shariat Court, Abdul Sattar and others v. The State 2002 PCr.LJ 51 Karachi, Haji Abdul Aziz v. The Sate 1999 PCr.LJ 356, Muhammad Azam v. The State, PLD 1996 SC 67, Azhar Iqbal v. The State, 1997 MLD 1486 Lahore Muhammad Akhtar v. The State, 1997 MLD 1491 Lahore and Mushtaq Ahmad v. The State PLD 1996 SC 574, in support of his arguments, while the learned State counsel submitted that the report Exh.P,'D was that of an expert, therefore, it could be accepted without calling the expert as provided in section 510, Cr.P.C.
7. One thing is admitted that there is no report of expert in case of .30 bore pistol(mauser). In absence of the report it can be argued that it was not actually a pistol 30 bore but was a toy for a child, therefore, the impact of non-availability of this report should have been examined by the learned trial Court. The second thing is that as to whether the report of the Commander Bomb Disposal could be treated as a report of an expert as required by section.510, Cr.P.C. The perusal of this report would shows that it does not bear the seal of the office of the Commander Bomb Disposal nor there is anything on the record that he was notified as an expert, even there is no reference in the statement of Mazhar Hussain Sub-Inspector that the grenade was sent to the expert for its examination and report was obtained. It was held in Gulab v. The State 1985 PCr.LJ. 1617 that conviction recorded without producing as expert who examined articles or bringing on record his report, is not warranted as such like conviction would suffer from legal infirmities as a consequence of it the conviction and sentence was set aside and a direction for a denovo trial was issued. The same is the position in the instant case because such a report has been brought on the record which does not bear the seal of the office of Commander Bomb Disposal nor there is any reference in the statement of P.W.
4. Mazhar Hussain that the grenade was sent for examination. The impact of non-- production of expert in case of mauser was also not examined, as even in that case the report of expert was essential to be produced, therefore, in view of above circumstances the conviction and sentence cannot be sustained and there is need for a fresh decision of the case after recording the statement of the expert.
8. In view of the above discussion, the conviction and sentence recorded by the learned trial Court on 25-5-2000 is set aside and the case is remanded back with a direction to decide it afresh after recording the statement of the expert as indicated above.
Appeal is disposed of accordingly.