1988 PLP 38 (MLD)

. 13--Criminal, Procedure Code (V of 1898), Ss. 103 & 439--Recovery evidence, appreciation of--Weapon recovered during investigation of murder case--No witness of locality associated in recovery proceedings--Necessary ingredients of S: 103, Cr.P.C., held, were missing and there was ample justification to interfere with conviction of accused--Acquittal ordered in circumstances. Malik Saced Hassan for Petitioner. Wafadar Khan for the State. Date of hearing: 13th December 1987. The petitioner Muhammad Riaz has challenged his conviction and sentence under section 13 of the West Pakistan Arms Ordinance XX of 1965 awarded to him by the Magistrate Section 30, Lyallpur (Faisalabad), vide his judgment dated 19-2-1974. His appeal, however, failed vide the judgment of the learned Sessions Judge Lyallpur, (Faisalabad) dated 22-8-1974. The revision petition of the petitioner was admitted by this Court on 25-6-1975, and the sentence being of two months' R.I. only, he was admitted to bail vide the same order.

2. The allegation against the petitioner is that on 27-7-1969, during the investigation of another case under sections 302/380, P.P.C., the petitioner led to the recovery of weapon and cartridges in the presence of Shamas-ud-Din (P.W.1). Learned counsel for the petitioner contended that the petitioner was acquitted in the main case under sections 302/380, P.P.C. It is submitted forcefully by the learned counsel that there is no independent evidence produced by the prosecution against the petitioner. The only witness produced and relied upon by the prosecution is Shamas-ud-Din (P.W.1). Learned counsel stated that it is established on record that the said witness is a police witness and further no other evidence was produced from the locality in order to prove the recovery against the petitioner. Learned counsel for the State submitted that an unlicensed pistol P. 2 and cartridges. P.3/1-4 were recovered at the pointing out of the petitioner and the petitioner could not justify in law the possession of the above-referred weapons and cartridges. The learned State counsel has frankly conceded that this was the allegation against the petitioner that the above referred weapons were recovered. However, he stated that there is no evidence available on the record to prove the, factum of recovery from the petitioner. Malik Saeed Hassan, learned counsel for the petitioner, has made a statement at the Bar that the petitioner was acquitted in the main case and as such, the entire evidence was disbelieved by the learned trial Court who passed the order of acquittal. However, the judgment of the trial Court acquitting the petitioner from the main case of murder has not been placed on record. Learned State counsel has not opposed the revision.

3. After hearing learned counsel for the parties and perusing the record, I am of the view that the prosecution has failed to prove its case of the recovery of the above-referred weapon and cartridges from the possession of the petitioner. It may be noted that no witness from the locality was produced to prove the recovery itself. The requirement of law under section 103 of the Code of Criminal Procedure is that respectable people of the locality from where the recovery is effected, are supposed to prove the recovery. In this case, this necessary ingredient is missing and as such, I rind ample justification to interfere in the judgments. Accordingly, the impugned judgments are set aside, the revision petition of the petitioner is accepted and he is acquitted. He is already on bail. He shall be discharged of his bail bonds. S.A./M-505/L. Revision accepted.