1. By this criminal revision application, the applicant has challenged judgment dated 29-5-2002 passed by the learned Sessions Judge, Karachi Central dismissing Criminal Appeal No,10 of 2002 and maintaining the judgment dated 13-4-2002 of the VIIth' Judicial Magistrate, Karachi Central by which applicant was convicted under section 13-E of Arms Ordinance and sentenced for R.I. of one year and six months and to pay fine of Rs,2,000 and in default to suffer S.I. of two months.
2. The relevant facts of the matter are that the applicant who was in custody at Police Station, Industrial Area, New Karachi in Crime No, 102 of " 2001 under section 302/34, P.P.C. led S.-I., Naeem Ahmed to recovery of .30 bore pistol loaded' with 5 bullets from a building in the presence of Mashirs Muhammad Ibrahim and Farhan. Hadi Hashmi. The arms recovered was stated to be unlicensed. Prosecution examined P.W.1 Farhan Ali Hashmi, Mashir of recovery and P.W.2, S.-I., Syed Naeemuddin the Investigating Officer. The applicant was examined under section 342. Cr.P.C. and produced defence witnesses namely Abdur Rasheed, Razi Ahmed and Muhammad Hussain.
3. The trial Court convicted and sentenced the applicant which conviction sentence was maintained by the impugned judgment.
4. Learned counsel for the applicant has contended that during his statement under section 342,.
5. Cr.P.C. the applicant was not confronted with the recovered pistol nor the question whether he possesses licence of the arm recovered from him and relied upon the cases of Nazar Muhammad v. The State 1996 PCr.LJ 1410; Fareed Ahmed Langrra v. The State 1998 PCr.LJ 1368 and Sarwar Khan v.
6. The State 2000 PCr.LJ 779. Mr. Qazi Wali Muhammad, counsel appearing for the State has argued that there is concurrent finding on the question and supported the impugned judgment I have considered the arguments and have gone through the record and find that the trial Court while recording statement under section 342, Cr.P.C. of the applicant did not at all confront the applicant with the alleged recovered pistol and bullets nor the applicant was asked question as to whether he possessed licence of the recovered arm. In this regard, in the case of Sarwar Khan (supra) a Division Bench of this Court at page No,789 has held as follows:-- "26. Statement under. section 342, Cr.P.C. of appellants, on the face of it, show that no such questions with regard to possessing valid licences and appellants' failure to produce the same were at all asked by the trial Court. In consequences of failure to comply with the above mandatory provisions of law, we are of the considered opinion that conviction and sentence awarded to them under section 13-D of Arms Ordinance is not maintainable. A Division Bench of this Court in the case of Perana v. The State reported in 1972 PCr.LJ 165, had allowed appeal and acquitted the appellant similarly on the same facts and grounds. The Honourable Supreme Court in the case of Sajjad Ahmed and another v. The State reported in 1992 SCMR 408 has held as under:-- 'We also hold the view that the prosecution has failed to prove its case against the appellants under section 7(1)(c) of the Surrender of Illicit Arms Ordinance, 1991, inasmuch as the prosecution did not at all lead any evidence to show that the weapons of offence were kept by the appellants, without having any licence for them and so no questions were put to the appellants in their statements under section 342, Cr.P.C. that they were holding the weapons in question without licences. We hold that no conviction and sentence could be recorded against the appellants under this charge as well as in view of this state of affairs."
7. "27. The Honourable Supreme Court in, the case of Munawar Hussain v. The State reported in 1996 SCMR 1601 (sic) has observed that as a result of omission to put incriminating piece of evidence against the petitioner while recording his statement under section 342, Cr.P.C. at the trial, the same cannot be considered to be a piece of evidence against him and in such circumstances conviction cannot be maintained."
8. The case herein being of identical nature that of the reported case, in my view the principles laid down in the reported case are applicable to the present case also. I have examined the judgments of the two Courts below and find that there is no consideration of this aspect of the matter in them.
9. The trial Court was bound to put to the applicant during the course of his statement under section 342, Cr.P.C. of incriminating piece of evidence which in the present case was a .30 bore pistol and 5 bullets and also the question whether the applicant possessed licence of such recovered pistol.
10. This having not been put to the applicant during the course recording of his statement under section 342, Cr.P.C., the mandate of law in this regard has not been complied with which is a serious flaw in the prosecution case and conviction sentence of the applicant on such flawed proceeding cannot be maintained.
11. In this view of the matter, this revision application is allowed, conviction and sentence of the applicant recorded by the trial Court and maintained by the Appellate Court by their respective judgments are set aside and the applicant is acquitted.