' IJAZ-UL-HASSAN KHAN, J.--- This appeal has been directed against the judgment, dated 10-6- 2003, recorded by Mr. Tariq Parvez Baloch, learned Additional Sessions Judge/Judge, Special Court, Mardan at Takht Bhai, convicting and sentencing the appellant under section 13 of Pakistan Arms Ordinance, 1965 to undergo R.I. For seven years and a fine of Rs,30,000 or in default of payment of fine to suffer further S.I. For six months. Benefit of section 382-B, Cr.P.C. Was also accorded to him.
2. As per allegation of the prosecution on 1-10-2000 at about 22-00 hours S.H.O. Tajbar Khan P.W.
Was on Gasht alongwith the police party, when he heard the report of fire shots coming from the direction of Qasim Colony, Takht Bhai. The police party rushed to the spot. In the way, another police party headed by D.S.P. Gul Said Khan also joined them. The Hujra of Abdul Khanan in Qasim Colony was raided and Abdul Khanan was arrested from a room of the Hujra. A pistol of .30 bore No,31028466 with 39 rounds of .30 bore was recovered from his possession. ' A further search of the Hujra also led to recovery of three Kalashnikovs bearing Nos. 10836/1954, 8114704 and No, (66)-1#25019591, 30 rounds of 662 bore, a spare charger, a .12 bore shot gun DB No,2124 with 18 cartridges and a .12 bore repeater with four cartridges all without licence, hidden under the quilt lying on a cot. Abdul Khanan was formally arrested and a Murasila was drafted at the spot by complainant Tajbar Khan S.H.O. Which was incorporated into F.I.R. By M.H.C. Hakim Khan P.W.
3. The prosecution evidence consists of four witnesses namely Riaz Armourer, Police Line, Mardan (P.W.1), Dilawar Rider Squad, Mardan (P.W.2), Tajbar, S.-I. Police Station Shergarh (P.W.3) and Hakim Khan, M.H.C. (P.W.4). The accused-appellant in his statement under section 342, Cr.P.C. Denied the prosecution allegations and claimed to have been falsely charged. He led no evidence in defence and declined to be examined on oath.
4. Messrs Assadullah Chamkani and Mazullah Barkandi, Advocates for the. Appellant bitterly criticized the impugned judgment and contended, inter alia, that the prosecution has not been able to prove its case against the appellant and for that matter the impugned judgment of the learned trial Judge is erroneous and is the outcome of misreading and non-appreciation of the evidence; that the mandatory provisions of section 103, Cr.P.C. Have been seriously violated and no independent and disinterested witness from the public has been associated with the recovery proceedings and that the case property was not produced in the Court by the prosecution which has materially prejudiced the interest of the appellant. Concluding the arguments, the learned counsel maintained that prosecution had utterly failed to establish its case and the appellant is entitled to finding of acquittal. In support of the submissions reliance was placed on Abdul Wadood v. The State 2001 PCr.LJ 173, Islam Gul v. The State 1977 PCr.LJ 225 and Aaqil and another v. The State 1999 PCr.LJ 1754.
5. Mr. Tariq Javed, learned Deputy Advocate-General, supported the impugned judgment by reiterating the reasons contained therein.
6. We have carefully considered the arguments advanced at the bar and have minutely examined record of the case.
7. It is a known and settled principle of law that prosecution primarily is bound to establish guilt against the accused, without shadow of reasonable doubt by producing trustworthy, convincing and coherent evidence enabling the Court to draw conclusion whether the prosecution has succeeded in establishing accusation against the accused or otherwise and if it comes to the conclusion that the charges so imputed against the accused have not been proved beyond reasonable doubt then the accused becomes entitled for his release on getting benefit of doubt in the prosecution case.
' It is the case of the prosecution that in consequence of the raid conducted on the Hujra of the appellant, the appellant was apprehended and a .30- bore pistol with 39 rounds of the same bore was recovered from his possession. A further search of the Hujra led to recovery of three kalashnikovs, a .12 bore shotgun with 18 cartridges and .12 bore repeater with four cartridges, from a cot lying in the Hujra. These weapons were stated to have been concealed under a quilt. A perusal of the record would reveal that licence copies regarding pistol, .12 bore shotgun and .12 bore repeater were produced by the appellant to the Investigating Officer which were duly taken into possession through a recovery memo. Signed by marginal witnesses. However, the kalashnikovs were found unlicensed. The sole question requiring determination would be, how far the prosecution has succeeded to connect the appellant with the recovery of kalashnikovs in question? A careful analysis of the material on record would reveal that prosecution has produced nothing to indicate that kalashnikovs were of the appellant and he had concealed the same under a quilt. Admittedly, on the night of 1-10-2000 there was the marriage of Raees Khan son of the appellant and the aerial firing was made in jubiliation to celebrate the marriage. A large number of guests were invited who are stated to have come out of the Hujra of the appellant after the recovery of weapons. S.-I. Tajbar P.W. Has stated so in his cross-examination. The connecting link between the appellant and the unlicensed weapons i,e, kalashnikovs is conspicuously missing in this case.
8. Adverting to the objection regarding non-production of the case property we find that it is the duty of the Court to verify whether the incriminating material has been produced in the Court by the prosecution or not. The Court cannot convict any accused merely on the statements of the witnesses without production of the incriminating material as held in Islam Gul v. The State 1997 PCr.LJ 225.
9. In view of what has gone above it follows that the prosecution has miserably failed to connect the appellant with the commission of crime. The evidence produced by the prosecution is highly discrepant and learned trial Judge had no justification to place implicit reliance on it and make the same a basis for conviction of the appellant.
10. Consequently, we accept the appeal, set aside the impugned judgment of conviction and acquit the appellant of the charge brought against him. The appellant is in custody. He shall be released forthwith if not required in any other, case. The three unlicensed kalashnikovs alongwith chargers and live rounds of 7.62 bore shall stand confiscated in favor of State. Rest of the arms and ammunitions shall be returned to the appellant, upon production of licences.
11. We had vide short order, dated 23-7-2003 allowed the appeal for reasons to be recorded later.
Above are the detailed reasons.