P L D 2003 Peshawar 84 (PLP)

‑‑‑‑S. 13‑E‑‑‑Appreciation of evidence‑‑‑Raid was conducted on the house of the accused to apprehend a proclaimed offender but the police did not succeed in its mission‑‑‑Accused was not present in the house when recovery was effected from a room of the house during house search‑‑‑Prosecution witness had stated that ‑a the time of raid mother of the accused was present in the house which lent strength to the contention of the accused that the house was not in exclusive possession of the accused and that other people also lived in it‑‑‑Prosecution had failed to produce best evidence to establish accusation against accused:‑‑Conviction and, sentence passed against the accused were set aside and he was acquitted of the charge against him. Abdul Fayaz Khan for Appellant. Azhar Yousaf for the State. Date of hearing: 13th November, 2002. IJAZ‑UL‑HASSAN, J.‑‑This Criminal Appeal No.207 of 2001 is directed against the judgment of learned Judge Special Court/Zila Qazi, Buner dated 4‑7‑2001, whereby Shah Maiser son of Kabal, resident of Sarkhane Sultanoos; Police Station Pir Baba, District Buder, appellant adjudged guilty of the charge, was convicted under section 13‑E proviso (b) of the Pakistan Arms Ordinance, 1965 and sentenced to suffer three years' S. I. and a fine of Rs.1,000 or in default thereof to under further S. I. for one month.

2. Facts of the case in brief are 'that a police party headed by P.W. Habibul Haq, A.S.‑I., Police Station Pir Baba conducted a raid on the house of the appellant on 20‑5‑2001 at about, 19‑00 hours in order to arrest one Abdul Zaman, wanted by the police in a murder case registered at Police Station Pir Baba, District Buner vide F.I.R. No.214 dated 20‑5‑2001. During the house search a Kalashnikov No.52094 with 20 cartridges of 7.62 bore was recovered which was taken into' possession by the police vide memo. Exh.PC in presence of marginal witnesses. The appellant was not present in the house. He was subsequently arrested and a case was registered against him under section 13, Arms Ordinance, 1965 vide F.I.R. No.220 dated 20‑5‑2001, Police Station Pir Baba, District Buner.

3. At the trial, the prosecution examined three witnesses to grove its case Habibul Haq, A.S.‑I. (P.W.1) stated that pursuant to as information that a proclaimed offender namely Abdul Zaman has taken refuge in the house of the appellant; he conducted raid on the house on 20‑5‑2001 but the offender was not found. However, he recovered a kalashnikov with 20 cartridges of 7.62 bore from the house. He took the same into possession vide memo. Exh.PC in the presence of marginal witnesses. He drafted Murasila (Exh.PA/1) and despatched the same to police station through P.W. Shamsul Azim; F.C. which was incorporated in F.I.R. (Exh.PA). He arrested the accused the same day. After completion of investigation he handed over the case file to P.W. Hidayatur Rehman, S.H.O. The S.H.O. confirmed having submitted complete challan against the accused‑appellant in Court. I.H.C. Said Muhammad (P.W.3) stated that he is marginal witness to recovery memo. (Exh.PC) vide which a kalashnikov with 20 cartridges of 7.62 bore were recovered from the house of the accused appellant and taken into possession.

4. The accused‑appellant when examined under section 342, Cr.P.C. denied the prosecution allegations and claimed to have been falsely associated with the crime. In answer to a question as to, why he has been charged, he stated that the house is not in his exclusive possession and that his parents and brother with his family also reside in the same house. He led no evidence in defence.

5. Appearing on behalf of the appellant, Mr. Abdul Fayaz, Advocate seriously criticised the impugned judgment and order and contended that the recovery is alleged to have been effected froth a house not exclusively in possession of the appellant and that the mandatory provisions of section 103, Cr.P.C. had been seriously violated which has made the recovery highly doubtful.

6. Mr. Azhar Yousaf, learned State Counsel, on the other hand, supported the impugned judgment and order and submitted that prosecution has successfully proved its case against the accused appellant through cogent and reliable evidence and in the absence of any ill‑will or enmity between the appellant and the police, it is difficult to believe that the kalashnikov and cartridges were foisted and the appellant was falsely implicated in the case.

7. It needs no reiteration that for the purpose of giving benefit of doubt to an accused person, more than one infirmity is not required, a single infirmity, creating reasonable doubt in the mind of a reasonable and prudent mind regarding the truth of the charge makes the whole case doubtful. Merely because the burden is on the accused to prove his innocence it does not absolve the prosecution from its duty to prove its case against the accused beyond any shadow of doubt and this duty does not change or vary in the case. A finding of guilt against an accused person cannot be based merely on the high probabilities that may be inferred from evidence in a given case. Mere conjectures ‑ and probabilities cannot take the place of proof. Muhammad Luqman v. The State PLD 1970 SC 10.

8. There is no denial of the fact that a raid was conducted on the house of the appellant on 20‑5‑2001 with the hope to apprehend a proclaimed offender Abdul Zaman, required by the police in a murder case but the police did not succeed in its mission. It is also admitted that at the time of raid, the appellant was not present in the house and a kalashnikov and 20 cartridges were recovered from a room of the house during house search. It has come on record through the mouth of I.H.C. Said Muhammad (P.W.) that at the time of raid mother of the appellant was present in the house. This fact lends strength to the contention of the learned counsel for the appellant that the house is not in exclusive possession of the appellant and that other people also live in it. The prosecution as such, has failed to produce best kind of evidence to establish accusation against the appellant. In the circumstances, it should not be safe to uphold and maintain the conviction and sentence of the appellant. The appeal is, therefore, allowed. The appellant's conviction and sentence is set aside and he is acquitted of the charge against him. The appellant is on bail. His bail bonds shall stand cancelled. S. M. A. H./691/P??????????????????????????????????????????????????????????????????????????????? Appeal allowed.