1999 P Cr (PLP)

Malik Mansaf Awan for Appellant. Heard

2. During investigation of connected hurt case under section 307/34, P.P.C. registered at Police Station City Mianwali vide F.I.R. No.199 of 1990 lodged by Gul Muhammad, complainant, accused/respondent No.l made a disclosure and then led to the recovery of rifle .303 alongwith two live cartridges, for which, he had no licence. As a sequel thereto, a case under section 13 of the Arms. Ordinance (XX of 1965) was registered at the instance of Altaf Hussain, A.S.‑I. PW.4 by virtue of F.I.R. No.212, dated 31‑5‑1990.

3. In order to prove its case, four witnesses, all police officials, were examined by the prosecution. In his statement under section 342, Cr.P.C. the accused denied all incriminating circumstances figuring against him', in prosecution evidence. However, he opted not to appear in disproof of allegations as envisaged by the provisions of law embodied in section 34,0(2), Cr.P.C. No witness was produced in defence either. ,

4. Upon culmination of trial respondent No.l was adjudged to be guilty by the learned Trial Court and convicted and sentenced to undergo R.I. for a term of three years, in view of agony and ordeal faced by him in the process of lengthy trial. Benefit of provisions of section 382‑B, Cr.P.C. was extended.

5. Such verdict was lambasted and assailed in an appeal, which, ultimately was accepted, conviction and sentence were set aside and respondent No.l was acquitted of the charge levelled against him.

6. Thus, acquittal of accused by virtue of an order, dated 3‑12‑1995, passed by Mehr Mumtaz Hussain Lali, the then learned Additional Sessions Judge, Mianwali, has been challenged in this appeal under section 417(2), Cr.P.C. by Gul Muhammad who, as indicated above, happens to be complainant of connected hurt case, which too, is stated to have resulted/ended in acquittal.

7. Learned counsel representing the appellant has reiterated the aspects, factors, points and grounds urged in the memorandum of appeal. Also it has been impressed that the acquittal, complained of, is neither warranted by data and material on record nor the same can be taken to be in consonance with law.

8. However, learned Additional Sessions Judge, seems to have rightly noticed glaring deviation of prescribed procedure in connection with the recovery, affording the basis of prosecution case. Needless to say that Investigating Officer was legally bound to associate and invite respectables of the locality, which, being a Bazar was swarmed with businessmen and even customers. There can be no cavil with the fact that he could conveniently join any available and independent person in the lot. It is trite law and proposition that deviation and departure from prescribed and settled procedure makes the whole exercise colourful, doubtful and replete with suspicions. In other words, procedure laid down has to be followed in stricto senso and deviation therefrom has to be taken otherwise. This belief finds support and fortification by the principle of law consistently expounded by august superior Courts and by which, the proposition stands at rest and conclusively settled. So‑called recovery which provided the basis of conviction and sentence by learned Trial Court was undoubtedly claimed to have been effected in utter disregard of section 103, Cr.P.C. by Investigating Officer, who; felt contended by joining merely police personnel. No plausible explanation was given to dispense with requirements of provisions of section 103, Cr.P.C.; language whereof is seemingly couched in mandatory form. Moreover, the shop place of recovery, was not in exclusive' possession of respondent No.

1. In short recovery proceedings were rampant with legal infirmities. Hence, edifice erected thereon by the prosecution was aptly dismantled by learned Additional Sessions Judge, while, accepting appeal and rejecting revision.

9. Another significant aspect which somehow escaped the notice of learned Appellate Court cannot be lightly ignored and glossed over. Aforesaid revision petition was filed by the present, appellant, who, no doubt lodged F.I.R. No. 199 of 1990 in hurt case and during investigation whereof alleged recovery of weapon of offence was effected. At the same time, there can be no denial to the fact that F.I.R. in instant case was registered upon report' of Altaf Hussain, Investigating Officer and not by the appellant in any way. Even otherwise, it could be registered only at instance of Investigating Officer i.e. State. As such question arises, if appellant has got locus standi to assail the conviction/acquittal in a case never registered at his instance. Answer to the proposition is certainly in the negative, on the bare aspect that neither machinery of law was set into motion on behest of appellant nor matter of keeping of illicit arms by any person was his concern by any stretch of imagination and no grievance could accrue to the appellant, who, thus, had no locus standi to file revision petition or even I D instant appeal, to flog the dead horse.

10. Viewed from any angle, same merits dismissal and is hereby dismissed in limine. N.H.Q./G‑104/L Appeal dismissed.