1999 P Cr (PLP)

NAZIM HUSSAIN SIDDIQUI, J.

This appeal is directed against the judgment, dated 14th September, 1995 of Mr. Kazi Muhammad Akbar, the then learned Judge, Special Court No.I (S.T.A.), Karachi, whereby the appellant was convicted under section 13(d), Arms Ordinance, 1965, and was sentenced to suffer R.I. for seven years and to pay a fine of Rs. 50,000 or in default thereof to suffer R.I. for one year. The case of the prosecution, in brief, is that on 18th February, 1995 at about 10-50 a.m. opposite House No.4/1107, Liaquatabad, Karachi, the appellant was found carrying two unlicensed klashnikovs bearing Nos.17039976 and 14106084, fourteen magazines with 1103 cartridges, one unlicensed 7 mm rifle bearing No.SAG-25670 alongwith 3029 cartridges and one unlicensed T.T. Pistol with 3 live bullets and the same were recovered from his possession by investigating Officer Pervaiz Akhtar in the presence of Mashirs Badar Iqbal and Jan Muhammad. On completion of investigation, the charge-sheet was submitted before the concerned Court. Necessary charge under section 13(d), Arms Ordinance was framed against the appellant. At trial, the prosecution examined Mashir Jan Muhammad and Investigating Officer Parvaiz Akhtar. The appellant in his statement, recorded under section 342, Cr.P.C., has denied the prosecution's allegations and claimed to be innocent. He has claimed that he was involved in this case due to his political affiliation with M.Q.M. in the year 1989. Neither he examined himself on oath nor produced any witness in defence. On assessment of the evidence brought on record, learned trial Judge convicted the appellant and sentenced him as mentioned earlier. It is contended on behalf of the appellant that learned trial Judge has failed to appreciate the evidence of the witnesses particularly of Mashir Jan Muhammad, who has not implicated the appellant in the commission of this offence. Learned counsel also argued that the trial Court based the conviction of the appellant on the evidence of the Investigating Officer, who is also the complainant of this case. Mashir Jan Muhammad in his deposition, stated that on 18-2-1995 at about 8-30 a.m. while he was going towards Liaquatabad No.4 he had seen two boys, who were arrested by the police and the Rangers. According to him, one of them disclosed his name as Tahiruddin. He stated that since long period has passed, therefore, he could not identify the boy, who had disclosed his name as Tahiruddin. He deposed that he was informed by Rangers and the police personnel that they had recovered said arms and ammunitions from the possession of said Tahiruddin. He had seen said arms and ammunitions there. He stated that he could not say if the arms and ammunitions shown to him in Court were the same or not, which he had seen at the scene of offence. He also stated that said arms and ammunitions could not be carried by a person in a bag on his shoulder. He was not declared hostile by the prosecution. His evidence is part and parcel of the prosecution case. He has not supported the prosecution. He did not say that said arms and ammunitions were recovered from possession of the appellant. The other Mashir namely, Badar Iqbal was not examined by the prosecution, as his whereabouts were not known. Investigating Officer Parvaiz Akhtar, in his cross-examination, impliedly admitted that said arms and ammunitions could not be carried by one person. We have examined the prosecution evidence and are of the view that it is extremely doubtful and no conviction can be based upon it. Mashir of recovery has exonerated the appellant and no genuine effort was made to secure the attendance of other Mashir. The evidence of the Investigating Officer also does not inspire confidence. He handled the case in a casual manner. It appears that recovery was not effected in the way it was alleged. Under the circumstances, the appellant is entitled to acquittal. Accordingly, we allow this appeal, set aside the impugned judgment and acquit the appellant. He is on bail and his bail bond stands discharged. H.B.T./T-26/K ??????????????????????????????????????????????????????????????????????????????????? Appeal allowed.