1985 PLP 1224 (PCRLJ)

The allegations against the petitioner are that he was armed with a pistol. The prosecution story is that on 25‑2‑1981 at 12‑05 mid‑night A.S.I. Muhammad Ashraf alongwith his subordinate staff P.C. Abdul Aziz, P.C. Muhammad Sharif; P.C. Ali Akbar and others left City Police Station for patrolling after making entry at S.No.59 in the Roznamcha. While they were patrolling, they reached Society Chowk at about 12‑30 mid‑night and saw a person in suspicious condition. The police enquired his name. He disclosed his name to be Laiqur Rehman. Thereafter, the A.S.I.P. conducted the search of the applicant and secured a pistol from his back side pocket and one‑rupee note from the left pocket of shirt. The recovery was made in presence of Mashirs Shamim Ahmad and Zahoor Ahmad, who were taken from the persons, who had assembled there. The A.S.I. prepared the Mashirnama in presence of the Mashirs. Thereafter, the petitioner and the property were brought to the P.S. by the A.S.I.P., where he lodged the report under section 13‑D of the Arms Ordinance against the, petitioner. The police after investigation challaned the present petitioner in the Court of IIIrd Extra Joint Civil Judge and F.C.M., Hyderabad, where he was tried. The petitioner has denied his guilt. The petitioner in his statement under section 342, Cr. P. C., has stated that he is falsely implicated by A.S.I.P. Ashraf. He has further stated that he is employee of Treat Corporation for last 9/10 years. He resides opposite Rahat Cinema. A.S.I. charges money from Thaleywalas standing opposite Rahat Cinema. On 25‑2‑1981 at 5.00 p.m. A.S.I.P. demanded money from an aged Thaleywala. That man asked A.S.I. to wait for some time. On this A.S.I. started abusing him and also slapped him. The petitioner advised A.S.I. not to behave like that on which he also abused him and threatened him of dire consequences. On the same day at about 10‑00 p.m. two policemen came and asked him to accompany them to P.S. On his enquiry as to what the matter was, they did not explain him. A.S.I. Ashraf involved him in this present case. Shamim Ahmad Thaleywala is friend of A. S. I. He deposed against him at 'the instance of A. S. I. The prosecution examined two witnesses P.W. No.l A.S.I.P. Ashraf who is the complainant and Shamim who acted as Mashir. The learned trial Court taking into consideration the evidence adduced before it convicted and sentenced the petitioner abovenamed. The petitioner being aggrieved against the judgment of the learned trial Court has preferred an appeal before the learned Ist Additional Sessions Judge, Hyderabad which resulted in dismissal. The abovementioned petitioner being aggrieved with the aforesaid impugned judgment of the learned Additional Sessions Judge, Hyderabad has preferred the above Revision. Mr. Syed Madad Ally Shah the learned counsel from the petitioner has contended that the A.S.I.P. Muhammad Ashraf and Shamim Ahmad in their statements have said nothing to show that the pistol was unlicensed one and for that purpose no such question was put to him under section 342, Cr. P. C. and as such material irregularity has been committed, which is not curable under section 537, Cr.P.C. The learned counsel has cited case of Piron v. State 1972 P Cr. L J

165. On the other hand Mr. Ali Muhammad Memon learned counsel for the State has fairly conceded that in view of the above decision the conviction has to be set aside. I have carefully considered the facts and circumstances of the case in the light of the submissions made by the learned counsel for the parties anal I find that P.Ws. Muhammad Ashraf and Shamim Ahmad supported the recovery in their statements at the trial. It may be noted that in the statement of the Investigating Officer, Muhammadi Ashraf and Mashir Shamim Ahmad, there is nothing to show that the pistol allegedly recovered from back pocket of the petitioner was A unlicensed one and for that reasons no question was put to him under his statement under section 342, Cr.P.C. that the said gun was unlicensed. I am of the opinion that this material irregularity vitiated the trial and the same has caused prejudice to the petitioner. In view of the above matter, I allow this petition set aside the conviction and sentence and acquit the petitioner of the charge. Bails bond executed by the plaintiff is hereby discharged. M. Y. H.????????????????????????????????????????????????????????????????????????????????????????????? Petition allowed.