2011 P Cr (PLP)

IMAM BUX BALOCH, J.

Appellant Qadir Bux Jakhrani has assailed the judgment dated 5-8-2004 passed by the learned Additional Sessions Judge, Kashmore in Sessions Case No.62 of 2004, re. State v. Qadir Bux Jakhrani, arising out of Crime No.167 of 2003 registered at Police Station Kashmore, for offence under sections 13(d), Arms Ordinance, 1965, whereby the appellant was convicted and sentenced to suffer R.I. for three years and to pay fine of Rs.5,000, in default of payment thereof it was directed that the appellant shall suffer S.I. for two months more. Benefit of section 382-B, Cr.P.C. was also extended in favour of the appellant.

2. Precise facts of the prosecution case are that on, 24-12-2003 A,S,-I. Nazir Ahmed left Police Station Kashmore along with his subordinate staff, namely, PC Azizullah, PC Ghulam Muhammad and driver PC Sardar Ali, vide Entry No.21, at 1515 hours, in a government vehicle No.SP-5644, for the purpose of patrolling in the area. When the police party reached link road Geehalpur near RD-45, it was about 4-00 p.m., they noticed one person coming from Geehalpur and seeing the police mobile tried to flee away, but the police party encircled him and caught hold of him. On enquiry the person disclosed his name as Qadir Bux son of Nokhaf by caste Jakhrani, resident of Khaberoo Kosh, Taluka Kashmore, having a bundle covered by a piece of cloth in his right hand. The complainant took the same in his possession, opened it and found 800 live bullets in it, for which the accused could not produce any valid licence/permit. As no private persons were available at the scene of offence, the mashirnama of arrest and recovery was prepared with the signatures of PC Azizullah and PC Ghulam Muhammad.

3. The complainant lodged F.I.R. No.167 of 2003 against the appellant under section. 13(d), Arms Ordinance at Police Station Kashmore and after usual investigation submitted challan.

4. At the initial stage, the case was challaned in the Court of 1st Civil Judge and Judicial Magistrate, Kashmore, who had framed the formal charge against the appellant on 13-2-2004, to which the appellant pleaded not guilty' and claimed trial.

5. From the perusal of record it appears that the case was then transferred front the Court of 1st Civil Judge & Judicial Magistrate, Kashmore to the Court of Additional Sessions Judge, Kashmore, for disposal according to law. The learned Additional Sessions Judge, Kashmore framed charge against the appellant under section 13(d), Arms Ordinance on 18-5-2004, to which the appellant pleaded 'not guilty' and claimed to be tried.

6. During trial, the prosecution examined A.S.-I. Nazir Ahmed, who is complainant, as P. W.1, at Exh.6, who produced mashirnama of arrest, personal search and recovery of bullets at Exh.6/A, copy of F.I.R at Exh.6/13; PC Azizullah as P. W.2 at Exh.7 and vide statement. Exh.8 dated 29-7-2004 the Public Prosecutor closed the prosecution side.

7. The statement of appellant under section 342, Cr.P.C. was recorded on 29-7-2004, in which the appellant pleaded that he is innocent and has been falsely implicated. After hearing the parties, the impugned judgment was passed by the learned trial Court.

8. I have heard Mr. Muhammad Iqbal Mahar, Counsel for the appellant and Mr. Mus'ab Baleegh Dhamrah, State Counsel.

9. Mr. Muhammad Iqbal Mahar contended that during trial the prosecution has not produced Entry No.21 to prove that actually the complainant has left the police station at the relevant time. He contended that only on the sole ground of non-production of Entry No.21 whole prosecution case becomes doubtful. Non-production of entry goes into the root of the prosecution case, whether actually the complainant has left the police station or not.

10. On the other hand, Mr. Mus'ab Baleegh Dhamrah, State Counsel, was unable to controvert the submissions of Mr. Mahar and contended that the prosecution evidence is silent about the production of entry No.21, which is essential for the just decision of this appeal.

11. With the assistance of learned Counsel for the parties I have examined the evidence of the prosecution witnesses.

12. The evidence of complainant A.S.-I. Nazir Hussain is totally silent about the production of Entry No.21, under which the complainant left the police station for patrolling in the area. The complainant in his cross-examination admitted that he has not produced such entry, under which he left the police station for patrolling. He further admitted that there was a police picket at RD-45, a cabin of cigarettes is also situated. there and the staff of Irrigation Department also reside at RD-45. He admitted that he could not identify the bullets of 'Roger' company and called the store-keeper for proper identification, namely, Zakir Punjabi and the said store-keeper Zakir Punjabi had identified the bullets of 'Roger' company. He admitted that he had not mentioned the numbers of charger. He admitted that the weapon 303 is also called 8 mm. He admitted that he had not sealed, the bullets at the spot.

13. P.W. PC Azizullah stated the same facts and admitted the same facts in cross-examination, as admitted by P.W.I. He admitted that his 161, Cr.P.C. statement was not recorded. He admitted that he did not know the bore of Roger. He further admitted that 10/15 magazines were also lying in the bundle. He admitted that the magazines had not been mentioned in the mashirnama. He admitted that the bullets were lying in two bags of fertilizer, which were tied in one bundle. He also admitted that these facts are not mentioned in the mashirnama. He admitted that the cloth in which bags were lying had not been produced in Court.

14. I have minutely gone through the prosecution evidence, which is inconsistent. Roth the police officials have made exaggerations and contradictions in their evidence. P.W.2 Azizullah has made further exaggerations in his evidence about the availability of 10/15 magazines. After considering the prosecution evidence, I am of the view that the prosecution has failed to produce trustworthy and confidence-inspiring evidence. The Entry No.21 has not been produced during trial. Such lacunae in the case goes into the root of the prosecution case. The exaggerations and improvements and contradictions in the evidence of two police officials also create much doubt in the prosecution case and benefit of such doubt is to be extended in favour of the accused/ appellant. In such circumstances, I am of the view that the prosecution has failed to establish its case beyond any shadow of reasonable doubt and if any doubt created, the benefit of such doubt is to be extended in favour of the accused/appellant, as held in the case of Tariq Pervez v. The State, reported in 1995 SCMR 1345. Following the dictum laid down in the case of Tariq Pervez (supra), benefit of doubt is extended in favour of the appellant.

15. In view of the above, this appeal was allowed, the conviction and sentence recorded by the trial Court were set aside and the appellant was acquitted from the charge, vide short order dated 5-4-2011. Above are the reasons in support of such short order. N.H.Q./Q-5/K Appeal accepted.