2010 P Cr (PLP)

SYED SHAFQAT ALI SHAH MASOOMI, J.

This appeal is directed against the impugned judgment dated 20-6-2005, passed by learned Sessions Judge, Larkana in the sessions case No.982 of 2004 based on crime No. 11 of 2004 Police Station Khabar for affences under section 13(d), Arms Ordinance, whereby the appellant was convicted under section 13(d), of Arms Ordinance and sentenced to suffer rigorous imprisonment for four years and to pay fine of Rs.10,000 in default of payment of fine to further undergo R.I. for two months more. The benefit of section 382-B of Cr.P.C. was extended to the accused. The facts leading to present appeal are that the appellant was arrested by police party headed by SHO Ashfaq Ahmed Mangi on 5-6-2004 and recovered one unlicensed rifle bearing No.192116 of .303-bore loaded with magazine containing five live bullets from his possession with which he was going duly armed. During trial two prosecution witnesses were examined viz. P.W. SIP Ashfaq Ahmed complainant and P.W.2 PC Zamir Hussain. In his statement recorded under section 342, Cr.P.C. the appellant stated that the alleged rifle was foisted upon him, as it is licensed one and belongs to one Taj Muhammad Chandio; he also produced photocopy of its license at Exh.10-A during trial. The main contention of the learned advocate for the appellant is that the rifle in question is licensed one, stands in the name of one Taj Muhammad Chandio and the appellant had produced such license copy before the learned trial Court during recording of his statement under section 342, Cr.P.C. The incident is said to have taken place in the agricultural lands of Nazir Ahmed Punjabi Thahim and Abdul Aziz Janvri, in deh Folahoro. Both the mashirs were police personnel, and no efforts are said to have taken for associating any private person from the locality of place of incident with the case, although the incident allegedly occurred in the lands where availability of private persons cannot be denied. No roznamcha entry was produced by the complainant during evidence. It is most significant to note that mashirnama of recovery does not mention that the weapon and ammunition recovered from the appellant were sealed at the spot. Furthermore, the claim of appellant is that the alleged rifle is licensed one belonging to Taj Muhammad Chandio, and he has produced its licence copy before learned trial Court. However, whole the case is silent in respect of this point that how the alleged rifle came into possession of the applicant and if it is presumed that somebody committed theft of rifle from its owner, then next point comes in the mind that why licence holder did not lodge F.I.R. in respect of theft of his rifle. This point strengthens the defence plea of appellant that the rifle is licensed one and has been foisted upon him. In any case, the burden lies upon the prosecution to prove its case beyond the reasonable doubt. In present case due to non production of roznamcha entry, non sealing of the recovered property at spot and non procurement of the independent persons from the vicinity to act as mashirs, the benefit of doubt if any ought to go in favour of the accused. Learned State Counsel has fairly conceded that the case of appellant is fit for acquittal. In view of the foregoing facts and circumstances, the prosecution case being not proved beyond reasonable doubt, as such the benefit is being given to the appellant, and this appeal is allowed and the appellant is acquitted in the case. He is present on bail, his bail bond stands cancelled and surety discharged. H.B.T./M-156/K Appeal allowed.