1. ' The applicant was convicted under section 13-E of the Arms Ordinance, 1965 by the learned Judicial Magistrate K.N. Shah on 16-5-2002. He was awarded R.I. For 16 months and ordered to pay fine of Rs,3,000 and in case of default of payment of fine he was ordered to suffer R.I. For three months more. Benefit under section 382-B was also extended. An appeal was filed against the judgment of the learned trial Court which has been rejected on 4-7-2002. The appellant has assailed the findings of the two Courts below through this criminal revision.
2. ' The facts relevant for the purpose of disposal of this revision application are that while in custody in Crime No,206 of 2000 of P.S.K.N. Shah under section 302, P.P.C. And section 17(4), Offences Against Property (Enforcement of Hudood) Ordinance, 1979 the applicant and his co-accused Jurio alias Allah Jurio were interrogated by S.I.P. Muhammad Umar whereupon both the accused voluntarily lead the police party towards their houses from where applicant Wazir Khoso produced one S.B.B.L.
3. Gun bearing No,15066 alongwith four live cartridges whereas co-accused Jurio alias Allah Jurio produced one pistol alongwith a magazine 'oaded with three live bullets by digging out from under a "Khabar" tree in front of his house and both of them failed to produce valid licences for the said weapons/arms. According to the prosecution, Mashirnama was prepared by S.I.P./S.H.O.
4. Muhammad Umar of Police Station Bhan in presence of Mashirs P.C. Ali Naviaz and P.C.
5. Muhammad Ameen. Applicant and co-accused alongwith crime weapons and the cartridges were brought to police station where separate F.IRs, appear to have been lodged against the applicant and co-accused Allah.
6. ' In support of its case, prosecution examined complainant S.I.P. Muhammad Umar Shahani at Exh.
7. No,4. He produced Mashirnama of recovery as Exh. No,4-A and F.I.R. As Exh. No,4-B. P.C. Muhammad Ameen who is Mashir of the recovery was examined as Exhibit No,5 whereafter the prosecution closed its side. In his statement under section 342, Cr.P.C. Applicant denied the allegations made against him and stated that the witnesses who have deposed against him are police officials and interested in this case. He prayed for summoning the entry in the daily diary referred by the Investigation Officer kept by him while leaving for making recovery from the applicant and his co- accused. It appears that abstract of the said diary was subsequently placed on record on 11-4- 2002 and has been taken into consideration for recording the conviction.
8. ' Mr. Muhammad Sharif H. Qazi, learned counsel for the applicant has urged that there are inherent defects in the case of prosecution going to the root of the case. Firstly no private Mashirs were associated or any attempt was made for the said purpose by the Investigating Officer hence the recovery is in violation of section 103, Cr.P.C. Secondly he has argued that the alleged crime weapon and the cartridges recovered from the applicant accused were not sealed at the spot by the Investigating Officer and the same were not referred to the Ballistic Expert so as to justify that said weapon was in working condition. Thirdly the learned counsel has argued that the alleged crime weapon was not shown or put to the applicant/accused at the stage of recording his statement under section 342, Cr.P.C. Lastly the learned counsel has argued that initially the entry kept by the Investigating Officer in the Station Diary of the police station, before leaving for Making recovery was not produced and it was only after the statement of the accused that the same was taken on record by the learned trial Court, without examining the person concerned to produce the same and a such the applicant/accused stood deprived of his right of cross-examination so far the entry is concerned. In support of his contentions learned counsel has referred to the case of Loung v. The State 1999 PCr.LJ 595 where the accused was acquitted by extending benefit of doubt to him as the prosecution had failed to produce the entry in the Station Diary kept before leaving the police station and the K.K. Allegedly recovered from the said accused was not sent to Forensic or Ballistic Expert to certify whether the said weapon was in working condition. Learned counsel has also placed reliance on the case of Abdul Sattar and others v. The State 2002 PCr.LJ 51 where the accused/appellants were acquitted due to lapse on the part of prosecution viz. Non-production of Roznamcha of entry, non-sealing of the weapons at the spot and failure to refer the same to the Ballistic Expert. Lastly the learned counsel has referred to the case of Ashique Ali v. The State 2002 PCr.LJ 450 where the conviction awarded under section 13-D, Arms Ordinance of the Arms Ordinance by Sessions Judge and Special Judge S.T.A., Larkana was set aside where Station Diary /which ought to have been produced was not produced during the trial. The ammunition allegedly recovered was not sealed at the spot and the same was not sent to the Ballistic Expert for verification whether it was in working condition or not.
9. ' On the other hand Mr. Ali Azhar Tunio, learned Assistant Advocate-General has argued that association of two respectable inhabitants of locality is not required in a case where the accused himself leads to the particular place and gets the articles recovered. In support of his contention, learned Assistant Advocate-General has placed reliance on the case of Mir Muhammad v. The State 1995 SCM R 614. So far other legal points raised by he learned counsel for the applicant, learned Assistant Advocate-General has not been able to rebut the same.
10. ' I have considered the arguments of the learned counsel for the applicant and learned Assistant Advocate-General and have gone through the relevant material placed before me so also the R&P of the trial proceedings. I have also taken into consideration the case-law cited by both the learned counsel. I agree with the learned Assistant Advocate-General that in view of the rule laid in Mir Muhammad's case (supra), non-association of the private respectable persons of the locality cannot be considered to be fatal for the recovery made where accused himself leads to a particular place and gets the articles recovered. Thus this recovery cannot be deemed to be in violation of section 103, Cr.P.C. So far other objections of the learned counsel for the applicant are concerned. I find much force in the same. The Investigation Officer of this case appears to be either negligent or unaware of the requirements of law in such cases. Non-sealing of the weapon allegedly recovered from the applicant and non-referring the same to the Ballistic Expert have caused dents in the prosecution case. Non-production of the Station Diary at the relevant time showing the departure of the police party from police station on the \ specified date and time for making recovery cannot be ignored as it was the duty of the prosecution to have produced such important piece of evidence at the proper time. Though copy of the Station Diary has been placed on record but after the recording of the statement of accused under section 342, Cr.P.C. Learned Magistrate has observed that applicant/accused has him filled in the lacuna by calling such entry.
11. I wonder if the said entry could be taken into consideration without examining the maker of such entry in Court and without providing an opportunity to the accused to cross-examine the said witness.
12. ' In view of the discussion made above, this revision application is allowed. The conviction awarded to the applicant accused Wazir Khoso by the Judicial Magistrate K.N. Shah and maintained by learned 4th Additional Sessions Judge, Dadu as called in question in this revision application is hereby set aside which results in acquittal of applicant/accused in the said case. He shall be released forthwith, if not required in any other case.