1987 PLP 3183 (MLD)

Ch. Sarfraz Ahmad for the State. Dates of hearing: 19th and 22nd September, 1987. ABDUL WAHEED, J.--This appeal by Khudadad is directed against the judgment of the Sessions Judge, Rawalpindi dated 29th of April, 1984 whereby he was convicted under section 13 of the Arms ordinance, 1965 and sentenced to suffer R.I. for six months.

2. The prosecution case briefly was that during the investigation of the connected murder case against the appellant and his co-accused, the appellant on 3rd of May, 1982 led to the recovery of carbine P.1 which was lying buried in the orchard of his house. He could not produce a licence for the carbine. S.I. Amir Afzal PW. 3 took the carbine into possession vide memo Ex. PB in the presence of Maula Dad PW. 2 and Muhammad Sarwar PW (given up at the trial as unnecessary). On the complaint Ex. PA of the S.I. a case under section 13 of Arms Ordinance, 1965 was registered against the appellant at Police Station Cantt, Rawalpindi on the same date vide formal F.I.R. Ex. PA/1 drawn by Moharrir A.S.I. Muhammad Ashraf PW.1. On the completion of the investigation, the appellant was challaned accordingly.

3. At the trial the appellant was charged under section 13 of the Arms Ordinance, 1965 to which he pleaded riot guilty. When examined under section 342, Cr.P.C. he denied the recovery and pleaded as follows. "The witnesses were inimical towards me. The recovery has been planted in order to strengthen the connected murder case. In the trial of the connected murder case, the prosecution witness (Moharrir) has deposed that he had received the parcel of carbine on 24-2-1982, from the Investigating Officer. It is clear that the recovery shown to have been made on 3-5-1982, was fake." He, however, did not adduce any evidence in support of his innocence.

4. S.I. Amir Afzal PW.3 deposed to the recovery of un-licensed carbine P.1 at the instance of the appellant on 3rd of May, 1982. Maula Dad PW.2 corroborated him. Maula Dad, as is evident from his cross-examination, is not an independent witness. Although he is the brother of the appellant yet there has bean civil litigation between them with regard to the shops left by their father. S.I. Amir Afzal admitted in his cross-examination that at the time of the alleged recovery, Fazal Karim, Muhammad Afzal, Ghulam Muhammad and Muhammad Saleem, all residents of Seham where the house of the appellant is situate, were present besides one Rashid of Tarnol. They had no relation with either party. None of them was made an attesting witness of the recovery. This fact reflects adversely o the recovery. We, therefore, do not feel inclined to believe the same.

5. In the result, we accept this appeal, set aside the conviction and sentence of the appellant and giving him the benefit of doubt acquit him He shall be released forthwith, if not wanted in any other case. M.A. K./K-47/L Appeal accepted.