2007 P Cr (PLP)

SHAMSUDDIN HISBANI, J.

Through this criminal revision application, applicant Muhammad Arif has impugned the judgment, dated 22-7-2004, passed by VIIth Additional Sessions Judge, Hyderabad, in Criminal Appeal No.37 of 2002, whereby learned Additional Sessions Judge has dismissed the appeal and maintained the judgment, dated 31-10-2002, passed by IVth Extra Joint Civil Judge and F.C.M., Hyderabad convicting and sentencing the appellant under section 13-D, Arms Ordinance to suffer rigorous imprisonment for three years.

2. The facts disclosed in the F.I.R. are that on 22-2-2003 A.S.-I. Nisar Ahmed of Police Station Latifabad, Hyderabad, was on patrol duty. He received spy information that the applicant required in Crime No.9 of 2002 of the same police station was available near the Board Office, Latifabad. He along with his subordinate staff reached there and apprehended the applicant who disclosed his name as Muhammad Arif. On his personal search, .32 bore pistol loaded with magazine containing two live bullets was recovered from his possession. Applicant could not produce valid licence for the weapon and as such Mashirnama of his arrest and recovery was prepared in presence of Mashirs police constables Shuaban and Muhammad Moosa. He along with the case property was taken to police station and was booked for the offence under section 13-D, Arms Ordinance. On completion of the investigation, the charge-sheet against the applicant was presented before the trial Court.

3. Applicant did not plead guilty to the charge framed against him and professed his innocence. The prosecution in order to prove the charge against him, had produced and examined complainant A.S.-I. Nisar Ahmed and P.W. Shaman -Ali police constable Mashir of the event. Applicant in his statement recorded under section 342, Criminal Procedure Code deified the prosecution allegations. He, however, declined to lead evidence in his defence.

4. Learned trial Court, on conclusion of the trial, convicted the applicant as mentioned above. He preferred an appeal, which was dismissed by learned Additional Sessions Judge.

5. I have heard learned counsel for the applicant, learned Assistant Advocate-General, appearing for the State and examined the material available on record.

6. Learned counsel for the applicant has contended that the recovery is said to have been effected from possession of the applicant at about 1700 hours, from Board Office, Latifabad, which is a thickly populated area, but the event was not covered in presence of independent witnesses as required under section 103, Criminal Procedure Code, and that the prosecution had failed to prove that the pistol produced before the trial Court was the same weapon alleged to have been recovered from the possession of the applicant. According to him, the case property during the statement of the applicant recorded under section 342, Criminal Procedure Code had neither been shown to him nor it was sent to Forensic/Ballistic Expert for his opinion to prove that the same was functional.

7. Admittedly, the case property produced before the trial Court was not in sealed condition as borne out from the record. Surprisingly, the memo of recovery (Exh.3/A) reveals that the .32 bore pistol containing two live bullets recovered from possession of the applicant was sealed at spot, thus, the recovery of the alleged weapon from the possession of the applicant was shrouded in mystery. This fact by itself was sufficient to disbelieve the version of the prosecution witnesses. Even .32 bore pistol and bullets were not sent to the Forensic/Ballistic Expert to prove that the weapon so recovered was in functional condition.

8. As is obvious from the perusal of the record that the applicant was not confronted with the crime weapon while recording his statement under section 342, Criminal Procedure Code. No question was put to him as to whether he possessed licence of the weapon. Undoubtedly, every incriminating piece of evidence is to be brought to the notice of the accused and unless he is confronted with the material, available in evidence against him, the conviction could not be maintained. It is not disputed that both the Mashirs namely Shuaban Ali and Muhammad Moosa are police constables of the same police station. No private person was associated to witness the recovery of crime weapon although the place of recovery was surrounded by houses and shops. In such circumstances, the recovery is to be proved through independent and disinterested persons as required under section 103, Criminal Procedure Code. However, absence of private Mashirs in exceptional cases will not render search and recovery illegal. If the recovery has been made in contravention of section 103, Criminal Procedure Code, it is the duty of the prosecution to explain and assign valid and reasonable explanation for such non-compliance.

9. For the foregoing reasons, I am of the view that the conviction recorded in the above case cannot be sustained. Resultantly, the Criminal Revision Application No.90 of 2004 is accepted and both the judgment impugned herein, are set aside. These are the reasons for the short order dated 31-1-2006. H.B.T./M-31/K Revision accepted.