1998 P Cr (PLP)

After usual investigation applicant/accused was sent up in the Court of learned Civil Judge and F.C.M., Thatta to stand trial. On 30‑5‑1992 following formal charge was framed against the applicant/accused by the Trial Court. "I, Nooral Haque Rahokaroo, Civil Judge, and F.C.M., Thatta do hereby charge you. Abdul Majeed son of Nathu by caste Chandio as follows:‑‑ that on about 12‑5‑1992 at about 03‑30 hours at Jam Moori Taluka Ghorabari District Thatta you were apprehended by Ghorabari Police headed by S.H.O. Sikandar Azam Solangi and secured one unlicensed country made pistol of .20 bore and two live cartridges from your possession and you thereby committed offence punishable under section 13‑D, Arms Ordinance, 1965 and within the cognizance of this Court. An I hereby direct that you be tried by me on the above said charge. " In support of its case prosecution examined complainant S.‑I.P. Sikandar Azam Solangi Exh.4 who produced Mashirnama of arrest and recovery Exh.4/A and F.I.R. Exh.4/B and P.W. Mashir Najumuddin Exh.5. The prosecution closed its side by statement Exh.6. The statement of applicant/accused was recorded under section 342, Cr.P.C. Exh.7 wherein he denied the prosecution allegations and claimed that he had been falsely implicated and that Police involved him at the instance of one Umer Seero with whom they have got enmity on account of dispute over land. He further stated that he was available at his Otaque alongwith his father Nathu Chandio, Gulo Khaskhelli and Hameed Shoro where Police came and told him that he was called by S.H.O. he, therefore, went to police station where he was involved in this false case. Applicant/accused, examined himself on oath under section 340(2), Cr.P.C. He also examined defence witnesses. D.W. Gulo Exh.9 and D.W. Nathu Exh.10 who produced an order‑sheet, dated 31‑3‑1993 pertaining to F.C. Suit No. 1980 of 1992 (Mst. Chagan v. Nathu and others). Thereafter, the defence closed its side vide statement Exh.11. On 6‑10‑1996 learned Civil Judge and F.C.M. Thatta convicted the accused under section 13‑D, Arms Ordinance and sentenced him to suffer rigorous imprisonment for 12 months and to pay a fine of Rs.1,000 or in default to suffer rigorous imprisonment for one month more. Against the conviction and sentence passed by the learned Civil Judge and F.C.M., Thatta, he preferred an appeal which was dismissed, as referred above on 4‑8‑1997. I have heard Mr. Khadim Hussain Abro, learned counsel for the applicant/accused and Mr. Ashiq Hussain Mehar learned Advocate for the State who has not supported the impugned judgments and the conviction of the applicant/accused. With the assistance of both the learned counsel I have gone through the evidence and material placed on the record. The learned counsel for the applicant/accused has submitted that the applicant/accused is innocent and that he has been falsely involved in this case and that the Trial Court as well as Appellate Court have ignored material contradiction in the kind of weapon which was not even sealed. In the circumstances recovery has lost entire evidentiary value. The learned counsel has further submitted that there are material contradictions in the prosecution evidence regarding the actual description of the weapon, which has made the alleged recovery highly doubtful and that the Courts below by not extending benefit of doubt to applicant/accused have erred in law. Learned counsel for the State has supported the submissions made by the Advocate for the applicant/accused. I have considered the evidence on record and I am of the view that the prosecution has not proved its case against the applicant/accused beyond reasonable doubt for several reasons. Perusal of record indicates that the evidence of complainant/PLI S.‑I.P. Azam and Mashir Police Constable Najamuddin is contradictory and even the version of complainant is at variance with F.I.R. and Mashirnama of arrest and recovery. The prosecution has not produced the copy of daily diary bearing entry No.13‑, dated 11‑5‑1992 to prove that the Police party headed by the complainant or P.W. Police Constable Najumuddin had actually left the police station for patrolling on the date of alleged incident. The evidence regarding description of the alleged weapon is also contradictory as already stated above. In the circumstances recovery of weapon from the applicant/accused is not proved. It would be seen that the Mashirnama of arrest/recovery (Exh.4/A) and F.I.R. (Exh.4/B) describe the weapon as pistol of .20 bore whereas the evidence of complainant show that .8 bore pistol was recovered from him. In the statement of applicant/accused under section 342, Cr.P.C. the question put to him was with regard to .20 bore pistol and not about .8 bore pistol. The prosecution has not clarified this discrepancy about the description of the actual weapon nor it has been proved as to what weapon was actually recovered from the applicant/accused. The weapon produced in Court, therefore, appears to be different than the weapon shown in the F.I.R. and Mashirnama of recovery. The F.I.R. shows that patrolling was held in private vehicle whereas the evidence of complainant reveals that patrolling was made in Government Vehicle. This discrepancy in the evidence is irreconcilable. The weapon has not been sent to Ballistic Expert. The other weakness apparent in the prosecution case is that the F.I.R. and Mashirnama of arrest and recovery do not show that the alleged weapon was sealed at the spot. This circumstance also makes the alleged recovery doubtful. In the case of Nazar Muhammad v. State reported in 1996 PCr.LJ 1410 this Court considered the consequences of non‑sealing of the recovered weapon at the spot and not sending it to the Ballistic Expert for examination and held inter alia that "the prosecution has miserably failed to prove their case against the appellants and the scanty evidence of two Police Officers was not sufficient to bring home the guilt of the accused". The evidence of recovery and arrest is highly doubtful particularly when there are material contradictions as pointed out hereinabove. The conviction in these circumstances cannot be sustained. Considering the entire evidence on the record and the case‑law discussed above I am of the considered view that the case against the applicant/accused is not free from doubt, as such, I extend the benefit of doubt to him and he is acquitted of the charge. He is on bail and his bond stand it: discharged. By the short order dated 2‑3‑1998 I had allowed the revision of applicant/accused and acquitted him. The above are the reasons of my short order stated above. N.H.Q./A‑204/K Revision petition accepted.