1984 P Cr (PLP)

Sh, Hakim Ali for Appellant. M. A. Hameed for the State. This revision is directed against the judgment of the Sessions Judge, dated 23rd December, 1979 whereby he dismissed the appeal of petitioner and maintained his conviction under section 13 of the Arms Ordinance, 1.965, and his sentence of one year's R.I. awarded by the learned Magistrate by his judgment, dated 4th November, 1978:

2. According to the prosecution on 23rd June, 1978 at 12-30 a. m., Khan Muhammad A. S. I. alongwith two constables and Muhammad Hanif and Muhammad Shafi was present in Chak No. 80/N. P., on patrol duty. On receipt of secret information that the petitioner was in posses sion of an unlicensed revolver and was at present asleep in the said Chak in front of the house of one Muhammad Aslam, the said police officer alongwith the constables and said Muhammad Hanif and Muhammad Shafi proceeded to the house of Said Muhammad Aslam, where they found the petitioner asleep on a cot and on personal search of the petitioner, a .32 bore revolver along with eight cartridges was recovered from him tied to the string of his shalwar. The police officer seized the arms vide 'recovery memo. P. X. 14 which was attested by Muhammad Hanif and Muhammad Shafi P. Ws.

3. The prosecution, in order to prove its case produced Muhammad Shafi P. W. 1, Muhammad Hanif P. W. 2 and Khan Muhammad A. S. I. P. W.

3. The latter two supported the prosecution version as given above, but Muhammad Shafi did not. He was:: declared hostile and was cross -examined. According to this witness, two persons, namely, Attar petitioner and one Gohram were asleep in front of the house of Muhammad Aslam. They were awakened and searched and at that time petitioner- told that the pistol was with Muhammad Aslam Arain. Accordingly said Muhammad Aslam was called and he produced the pistol before the police. In cross-examination, this witness denied the suggestion that the pistol and the cartridges were recovered from the petitioner and that the recovery memo. Exh. F. A. was prepared at the spot. On the other hand, he said that in the morning he was called at the police station where his signatures were procured.

4. The petitioner when examined under section 342, Cr. P. C. denied the prosecution allegations and stated that he had been implicated due to enmity and produced two witnesses in defence.

5. The trial Magistrate convicted the petitioner on the evidence of Muhammad Hanif and Khan Muhammad A. S. I. He did not attach much weight to the statement of Muhammad Shafi P. W. in view of the evidence of Muhammad Hanif P.W., who according to him was an impartial and disinterested witness. On appeal, the learned Sessions Judge without adverting to the effect of divergent statement of Muhammad Shag P. W., affirmed the judgment of trial Magistrate.

6. I have heard the learned counsel for the petitioner and the State. According to the well-established principle of law statement of a hostile! witness cannot be completely brushed aside and either of the parties can/ make use of it. According to this witness the pistol was recovered fro 'm one Muhammad Aslam. He was cross-examined, but nothing could be elicited from him in cross-examination by the Public Prosecutor and his statement remained unshaken. Even otherwise his evidence is not inherently impossible. There is, therefore, nothing to impeach the credit of this witness or discard his statement. He is Lambardar of the village as accepted by Muhammad Hanif P. W. in his statement and is thus a respectable witness of the locality. He appears to be independent and disinterested also and is entitled to credence. On taking his statement into consideration, the prosecution case stands completely refuted and negated.

7. In this case, there -is another important circumstance which cannot be lost sight of. It is in evidence of P. W. 3 Khan Muhammad A. S.-I. and P. W. 2 Muhammad Hanif that one Gohram was also sleeping in front of the house of Muhammad Aslam near the petitioner. If that was so, then he should have been cited as a witness of alleged recovery. Further admittedly recovery took place in front of the house of Muhammad Aslam where petitioner was sleeping but said Muhammad Aslam was not joined in recovery. proceedings nor cited as a witness. The failure on the part of the police even to cite these two persons as witnesses also casts serious doubt on the truth of the prosecution version as natural witnesses of the occurrence were not produced which raises an adverse inference against the truth of prosecution story.

7. For the foregoing reasons I am of the. view that the prosecution has failed to prove the case against the petitioner beyond reasonable doubt. Accordingly, 1 accept this revision petition and giving benefit of doubt to petitioner set aside his conviction and sentence and acquit him of the charge laid against him. He is on bail. . His bail bond shall stand cancelled. M. Y. H. Revision accepted.