1995 PLP 1262 (MLD)

Date of hearing: 14th September, 1994. The present appeal has been filed against the order of conviction and sentence dated 19‑7‑1989 passed by Magistrate Section 30 Mianwali vide which the appellant was convicted under section 13 of Arms Ordinance No. XX of 1965 and was sentenced to undergo R.I. for three months. He was also‑granted benefit under section 382‑B, Cr.P.C.

2. The appellant was an accused person in case F.I.R. No.16/83 of Police Station Saddar, Mianwali under section 307/34, P,P.C. which was registered on 7‑2‑1983. The appellant was arrested in the said case on 23‑2‑1983 and he allegedly led the Investigating Officer Fiaz Akhtar, A.S.I. to his Baithak on 26‑2‑1983 wherefrom he brought out a gun Pi by digging a 'pit in the‑floor of Baithak which was taken into possession, witnessed by Muhammad Aslam and Muhammad Iqbal.

3. The appellant was charged under' section 13 of Arms Ordinance NOXX of 1965 of being in possession of a gun without a valid licence. The charge was put to the accused which was denied by him and he claimed trial.

4. The prosecution produced Muhammad Aslam P.W.1 and Muhammad Iqbal P.W.2 as recovery witnesses and P.W.3 Bashir Ahmad, Head Constable had recorded the formal F.I.R. Exh.PB.1. Fiaz Akhtar A.S.I. P.W.4 conducted the recovery proceedings. He stated that while the appellant was in custody in a case under section 307/34, P.P.C., he led to the recovery of .12 bore gun Pl for which he had no valid licence. He prepared recovery memo. Exh. PA. which was witnessed by P.W.1 and P.W.2. He had drawn formal F.I.R. Exh. PB which was sent to the police station for registration of the case and prepared rough site plan Exh. PC of the place of occurrence.

5. P.W.1 Muhammad Aslam stated that he was present in the police station when the appellant was interrogated about the weapon of offence used by him in case under section 307, P.P.C. While in custody the appellant led to the recovery of gun .12 bore by digging a .pit from within his Baithak. P.W.2 Muhammad Iqbal made a similar statement. The prosecution closed its evidence. The accused was examined under section 342, Cr.P.C. wherein he denied the allegations of the prosecution. The appellant however, did not make statement under section 340(2), Cr.P.C.

6. P.W. 1 Muhammad Aslam was, admittedly the real brother of Said Rasool who was an injured person in case under section 307, P.P.C. and P.W.2 Muhammad Iqbal was their brother‑in‑law. The gun was recovered from Mauza Gulmiri whereas the P.Ws. were the residents of Mianwali Nai Abadi. Village Gulmiri was admittedly at a distance of 8 k.m. from the police station, but the Investigating Officer did not associate any respectable from the locality from where the recovery was allegedly made. P.W. 1 and P.W. 2 are admittedly the relations of Said Rasool injured P.W.2 in case under section 307, P.P.C. They are interested witnesses and do not belong to the village wherefrom the gun was recovered. The possibility of padding cannot be ruled out.

7. The place of recovery is the Baithak of the appellant which was not locked at the time of the alleged recovery. The story of recovery is highly doubtful. The Court cannot ignore the attending circumstances and would not believe that a, person would dig out a pit in his Baithak and conceal the incriminating article therein. The alleged occurrence of attempted murder took place on 7‑2‑1983 whereas the recovery was made on 26‑2‑1983 and there was sufficient time at the disposal of the appellant to do away with the gun from the alleged time of occurrence till 23‑2‑1983, when he was arrested.

8. In the absence of any respectable witness from the locality of the recovery, the story of recovery cannot be believed. The case of the prosecution is not beyond reasonable doubt and the benefit of doubt is granted to the appellant: The conviction and sentence is set aside and the appellant is acquitted of the charge. He is discharged of the bail bond. H.B.T./S‑682/L Appeal accepted.