1993 PLP 2274 (MLD)

M. Abdul Qayyum Anjum for the State. Date of hearing: 5th June, 1993. The petitioner by way of this criminal revision has assailed the judgment of the learned Additional Sessions Judge, Lahore dated 27‑6‑1992 whereby the petitioner's appeal against the judgment of the learned Magistrate 1st Class dated 22‑8‑1990 convicting the petitioner to undergo one year R.I. under section 13 of the Arms Ordinance (XX of 1965) was dismissed.

2. Briefly the prosecution case is that P.W. 2 Naveed Saeed, S.I. on 23‑1‑1989 at 8‑30 p.m. drafted complaint Exh. PA to the effect that he alongwith the police officials and accused Mahmood‑ur‑Rehman had proceeded to the area of Commerce College, Allama 1qbal Town, Lahore in connection with the investigation of case F.I.R. No. 54/89 under section 13 of the Arms Ordinance (XX of 1965) and found petitioner Nazar Akram standing under the trees near the Commerce College. He intercepted the petitioner and on his personal search recovered from his pant a .32 bore pistol P.1 with five live bullets P.2/1‑

5. On inquiry the accused/petitioner could not produce licence therefore. P.W. 2 secured the said crime property vide memo. Exh. PB attested by P.W. 3 Mansoor Ahmad H.C. and, P.W. 4 Khalid Mahmood Constable. P.W. 2 Naveed Saeed, S.I. sent the complaint Exh. PA. to the police station through Muhammad Hanif Constable, where formal F.I.R. Exh. PA/1 'was recorded by Muhammad Abdullah, S.I. (P.W. 1). After the completion of the investigation the petitioner was challaned and sent up for trial.

3. The prosecution examined four P.Ws. in all to substantiate its case. P.W.1 Muhammad Abdullah, S.I. had drafted formal F.I.R. Exh.PA/1 on the basis of complaint Exh. PA. P.W. 2 Naveed Saeed is the complainant and Investigating Officer, who narrated the facts mentioned by him in the complaint Exh. PA. P.W. 3 Mansoor Ahmad, H.C. alongwith P.W. Naveed Saeed and P.W. 4 Khalid Mahmood Constable witnessed the recovery of Pistol P.1 and five live bullets P.2/1‑5 secured by P.W. 2 vide memo. Exh. PB attested by P.W. 3 and P.W.

4. P.W. 4 Khalid Mahmood Constable corroborated the statements of P.Ws. 2 and 3 and stated that P.W. 2 had secured in his presence Pistol P.1 and five live bullets P.2/1‑5 vide memo. Exh. PB attested by him and P.W. 3 as the petitioner could not produce any licence for the same.

4. The petitioner when examined under section 342, Cr.P.C. denied the prosecution evidence against hum and also the recovery of crime property and had further stated that he was taken away alongwith Ch. Zulfiqar (D.W.1) and the recovery had been planted upon him. He examined D.W. 1 Zulfiqar, who stated that the father of the petitioner on 23‑1‑1989 told him that the petitioner was summoned by the police of the area and he proceeded to the police station alongwith the petitioner and his father, where the crime property was planted. The petitioner had not made statement on oath as envisaged under section 340(2), Cr.P.C.

5. I have heard the learned counsel for the petitioner and the learned State Counsel and have perused the record. The learned counsel for the petitioner stated that no public witness was associated except the police officials. The petitioner was allegedly apprehended from a public thoroughfare and P.W. 2 never cared to summon or associate any public witness for the recovery of crime property. The alleged recovery was effected at about 8‑15p.m. It was not the late hour of the night. It was the duty of P.W. 2 to associate some public witness, which he did not perform, whereas P.W. 2 at such a place and time had opportunity to associate some public witness easily. In the circumstances the statements made by P.W. 2, P.W.3 and P.W.4 cannot be relied upon. I am of the considered view that the prosecution had not established its case beyond doubt. Giving the petitioner benefit of doubt, I acquit him of the charge. The petitioner is on bail his bail bonds are discharged. N.H.Q./N‑174/L Revision accepted.