2011 P Cr (PLP)

SYED ZAKIR HUSSAIN, J.

This appeal is preferred by the appellant against his conviction in the case bearing Sessions Case No.107 of 2009, pertaining to Crime No.29 of 2009, Police Station Civil Line, Jacobabad under section 13(d), Arms Ordinance disposed of by the judgment dated 11-6-2009, passed by the learned IInd Assistant Sessions Judge, Jacobabad, whereby he held the appellant guilty of the offence and sentenced to suffer R.I for five years with benefit of section 382-B, Cr.P.C. The appellant has prayed for setting aside of the said findings/judgment and for his acquittal from the charge referred to above on the facts and grounds mentioned in the appeal. In short, the facts are that the complainant of the connected case bearing Crime No.28 of 2009, lodged his report with Police Station for the offences punishable under sections 324, 337-H(2), 337A(i), 148, 149, P.P.C. in which three nominated persons, two unknown persons including the appellant to the effect that they attacked upon the complainant party and caused injuries by use of firearm weapons as reported against. During the investigation of said crime, the police official namely HC Nooruddin arrested the appellant in the said case and secured from his personal possession the Klashnikov as crime property. Since the said weapon was unlicensed, he registered the F.I.R. against the appellant as Crime No.29 of 2009 in the same Police Station for the offence referred to above. The appellant was charge sheeted in the Court of law separately for the said offence and the trial concluded in the impugned judgment with the consequences referred to above. I have heard learned counsel for the appellant and the learned State Counsel and perused the record. Learned counsel for the appellant pointed out that the alleged recovery of the weapon in-question was effected in presence of the mashirs namely Ghulam Shabir and Wazir Ali, who have appeared in witness box as P.Ws. 2 and 3 Exh.4 and 5 respectively at trial and disowned the appellant and the crime property as having ever stood known to them. They were declared hostile and cross-examined by the DPP but of no use as such exercise failed to rebut their such statement. Another aspect which is pointed out by the learned counsel is that the witness Nooruddin and another namely Investigating Officer Shabir Ahmed, who appeared in the witness box as P.W.1 and P.W.4 respectively have admitted to have not sealed the said recovered weapon. The case according to the learned counsel was not open to be disposed of in conviction and the learned trial Court has erroneously passed impugned judgment which is not sustainable under the law. Learned counsel also disclosed that in the main Crime No.29 of 2009, the appellant stood acquitted as a result of the compromise between the parties under section 345, Cr.P.C. Learned State Counsel does not oppose the grant of appeal in the circumstances as prayed for. The appeal is therefore, allowed. The impugned judgment is set aside. The appellant is acquitted. He is already on bail, his bail bond stand cancelled and surety discharged. H.B.T./A-53/K Appeal allowed.