2002 PLP 997 (MLD)

ABDUR RAUF KHAN LUGHMANI, J.

This is an appeal against conviction and sentence filed by the appellant Akram Khan against the judgment dated 10-9-2001 passed by the learned Special/Sessions Judge Bannu in case F.I.R. No.485, dated 3-12-1999 under section 13, Arms Ordinance of Police Station Mandan Bannu, whereby he has been convicted and sentenced to three years' R.I. with a fine of Rs.10,000.

2. According to the prosecution story put forth in F.I.R., on spy information that the appellant had harboured one Hazratullah who was proclaimed offender under sections 302/34, P.P.C. and 3/4 of Explosive Substances Act of Police Station Haved Bannu, Damsaz Khan, S.-I., C.I.A. raided the house of the appellant alongwith police party but neither the said proclaimed offender nor the appellant was found there. However, an unlicensed Kalashnikov loaded with eight live rounds and a bandolier containing another magazine loaded with fifteen live rounds and a D.B. shotgun were recovered therefrom and taken into possession. As such, the case in hand was registered against the appellant on the said date i.e. 3-12-1999. Thereafter, the appellant was put to trial where the prosecution succeeded to prove its case and the learned Trial Judge has convicted and sentenced the appellant as stated above. Hence this appeal.

3. We have hear learned counsel for the parties and perused the record with their valuable assistance.

4. P.Ws. Jan Draz Khan, A.S.I. and Damsaz Khan, S.I. are material witnesses in this case and their testimony requires thorough scrutiny. P.W. Jan Daraz Khan, A.S.I. during the course of his examination-in-chief supported the version reflected in the initial report but subsequently made certain admissions damaging the case of the prosecution. He stated that as soon as the police party guarded the house the accused had run away from the house and only the women-folk was present. Damsaz Khan (P.W.5) has also given contradictory statement, According to him when they entered the house, no male or female inmates were present there. P. W. I stated that the arms and ammunition 1 were lying on the ground near the wall and it belonged to the Proclaime Offender. In other words, the arms and ammunitions were not of the appellant but owned and possessed by the Proclaimed Offender Admittedly, when the premises were searched the appellant was no; present and it was for the prosecution to prove that the premises actual belonged to the appellant. The Investigating Officer was cross-examines on this score and he stated that the house of the appellant was not known to him and it was pointed to them by the informer. The plea of the appellant has been, as is evident from his statement under section 342, Cr.P.C.; that the place of occurrence did not belong to him nor was he present at the relevant tine and the recovery was made from the house of one Ali Muhammad. It was for the prosecution to establish that the premises was owned or possessed by the appellant. The alleged recovered arms and ammunitions were not sent to the Arms Expert whether the same were in working conditions or not. At least these should have been sent to an Armour for determining of its bore etc., for which the prosecution was duty bound to have done but it had failed to discharge such duty. In this respect, we are fortified by the judgments reported in PLD 1994 Lahore page 93 and 1995 MLD 1532.

5. Therefore, we have come to the conclusion that the prosecution had not been able to prove its case against the appellant beyond any shadow of doubt and its case is full of contradictions and improvements, the benefit of which must go in favour of the convict/appellant entitling him to outright acquittal.

6. Accordingly, we a t this appeal, set aside the conviction and sentence of the appellant and acquit him of the charge brought against him in this case. He shall be set at liberty forthwith if not wanted in any other case. H.B.T./474/P Appeal accepted.