1991 PLP 2016 (SCMR)

ABDUL QADEER CHAUDHRY, J.‑‑‑This appeal by leave of the Court is directed against the judgment of the High Court dated 12‑11‑1984.

2. The facts, in brief, are that the appellant was tried under section 13(E) of the Arms Ordinance. He was convicted and sentenced to three years' R.I. and fine of Rs.500 or in default to suffer six months' R.I. by the Sessions Judge. His appeal before the High Court was dismissed.

3. According to the prosecution case, on 3‑12‑1982 the Gowalmandi police was on patrol. The appellant was standing in front of his house. The police searched his person and from the fold of his Shalwar, a revolver of .38 bore and six live cartridges in the chamber of the revolver were recovered. In support of the prosecution case, three witnesses, namely, Rasool Bux, S.I.P., Muhammad Sharif, S.H.O. and Muhammad Yasin, A.S.I., were examined. The case of the appellant was that the police party had searched his house but nothing was recovered. He had demanded search‑warrant but the police could not produce the same. There was an altercation between the police and the appellant as a result of which the case was registered against him. The appellant produced four defence witnesses who supported the case of the appellant but the two Courts discarded the defence version and convicted the appellant on the basis of the statements of the prosecution witnesses. The learned Sessions Judge in convicting the appellant has observed "In the present case there are clearly two theories put forward one by the prosecution and the other by the defence. Both the theories are to be weighed on the same footing in the light of circumstances of the case. Both the police officers are senior and responsible police officers. They have been crossed‑examined at sufficient length but nothing has come on record to discredit their evidence". The trial Judge has committed an error for basing his finding on such observation. The prosecution and defence theories are not to be weighed in juxtaposition. It is always for the prosecution to prove its case beyond all shadow of doubt. Even if a plea advanced by an accused is not accepted by the Court, the conviction has to be recorded after the prosecution has established the guilt of the accused. There is no positive finding by the trial Court that the defence witnesses are set up witnesses as is clear from the observation of the Court that "the defence witnesses appear to me interested and set tip witnesses. The three defence witnesses who are alleged to have seen the incident are the neighbours of the accused and the 4th witness appears to me a chance witness. The defence theory appears to be set up theory and a subsequent thought". Merely because a witness is a neighbour of the accused it does not mean that his evidence cannot be relied upon. The evidence of the witnesses who appeared either on behalf of prosecution or defence has to be analysed by the Court. Such observations and findings is a clear misreading of evidence. The High Court has observed that "D.W.1 Wazir lives in a house adjacent to the appellant but in cross‑examination he has stated that except appellant he does not know any person in that locality". Thus the High Court has also misread the evidence. D.W.1 Wazir has not said so in his deposition. He stated "the policemen may be about 10 to 15 in number. But I do not know the name of any one of them." He has not said that he did not know any other neighbour. In view of the misreading of evidence, the contention of the appellant has not been disputed that he had demanded search‑warrant from the police party. The two Courts have misread the evidence.

4. As a result, we accept this appeal, and set aside the conviction and ; sentence of the appellant. He is acquitted of the charge. He is on bail. His bail‑bonds are discharged. MA.K./S‑629/S ????????????????????????????????????????????????????????????????????? Appeal accepted.