1997 PLP 1185 (MLD)

The appellant was convicted and sentenced to suffer R.I. for five years and fine of Rs.10,000 or in default to undergo further R.I. for one year vide judgment, dated 18‑9‑1994 by the learned Judge, Special Court No.III for (S.T.A.), Karachi, for the offence under section 13‑D, Arms Ordinance (F.I.R. No.266/1993) registered at Police Station Landhi, Karachi. The F.I.R. was lodged by complainant S.H.O., Ch. Muhammad Aslam on 30‑7‑1993. He alleged that the appellant was in custody at Police Station Landhi in Crime No.80/1993 under section 17(3) Enforcement of Hudood Ordinance, 1979 and during investigation he volunteered to lead the police party for recovery of unlicensed weapon. Accordingly, S.H.O., Ch. Muhammad Aslarn alongwith two private witnesses namely Abdul Sattar and Ishtiaq went to Malir river behind Railway Quarters Landhi, Karachi and there allegedly on the pointation of the appellant one K.K. with magazine and 28 rounds which were lying at the Wardat in a printed cloth were recovered and seized by the police. After usual investigation the case was challaned before the trial Court. Luring trial the prosecution examined P.W.1 Ishtiaq Ali Khan and Ch. Muhammad Aslam, S.H.O., Police Station Landhi, Karachi. The appellant in his statement recorded under section 342, Cr.P.C, denied the alleged recovery. He also stated that the P.Ws. were interested and they deposed against him at the instance of police. He also alleged his false implication in this case. In his statement recorded under section

340. Cr.P.C. he deposed that he is resident of Khairpur. On 1‑8‑1993 be was present in his village known as Bhurghri at about 5‑30 p.m. police of Gullo Siyal Police Suction alongwith army officials arrested him from his house and detained him for four days. Thereafter Ch Abid Rafique came at Gullo Siyal Police Station and brought him in Karachi, where he remained in custody of Police Station Landhi for about 14 days and then he was challaned in four " false cases". He also stated that the K.K. was foisted upon him. We heard Mr. Salahuddin Khan Gandapur, learned counsel for appellant and Mr. Ashiq, Raza learned counsel for the State and also perused the record. Learned counsel for the appellant submitted that. (a) the impugned judgment is based on misreading of evidence; (b) the prosecution has failed to prove the charge against the appellant beyond reasonable doubt; (c) he was also not given proper opportunity to cross‑examine the prosecution witnesses. (d) compliance of section 103, Cr.P.C. was not made and lastly (e) the Investigating Officer of this case has arrested Zahid Hussain who is brother of the appellant and foisted a K.K. on him but he was acquitted by the same trial Court. Learned counsel for the State supported the impugned judgment. According to the prosecution the accused was to custody at Landhi Police Station in Crime No.80/1993 and during investigation he volunteered to produce the unlicensed weapon. Both the prosecution witnesses deposed that the appellant led them to Malir river behind Railway Quarters Landhi, Karachi and he pointed out the place where he had concealed the crime weapon. He then dud out the place and produced one K.K. and cartridges alongwith magazine but he could not produce licence. It would be relevant to note that P.W.1 Ishtiaq Al, Khan deposed that the appellant produced 28 cartridges but S.H.O. Ch Muhammad Aslam deposed that 20 cartridges were secured. In the Mashirnama, (Exh.4) and in the F.I.R. (Exh.6) it is mentioned that after digging the earth up to one ft. one SMG No.21617 and magazine containing 28 live cartridges which were lying wrapped in the printed Chaddar were recovered. But none of the witnesses have deposed the fact that recovery was made with Chaddar, and even the Chaddar was not secured. Regarding the alleged willingness of the appellant to produce the weapon it is to be seen when in fact he volunteered to lead the police party to the place where the weapon and the cartridges were lying concealed. Admittedly he was in custody in a different crime but it is not clear as to when he was arrested in that crime and for how long he remained in custody before expressing his willingness to produce the weapon. Copy of the F.I.R. No.266/1993 has not been brought on record. In our view since the prosecution had failed to pinpoint the circumstances in which the alleged voluntary disclosure was made by the appellant, it taints the discovery with infirmity, especially, when:‑‑ (i) the accused denies it; (ii) no independent and reliable Mashir of the discovery exists; (iii) the time lapse between the date of arrest and date of discovery has not been specified nor reasons given to explain the delay; (iv) the important article in the discovery i.e. the "Chaddar" i.e. wrap has not been produced. The upshot of the above discussion is that the impugned judgment is liable to be set aside as the prosecution has failed to prove the charge against the accused beyond reasonable doubt. Accordingly this appeal is allowed. The conviction is set aside and the appellant should be released forthwith if not required in any other case. N.H.Q./.M‑102/K Appeal allowed.