1986 PLP 2831 (MLD)

LEHRASAP KHAN, J.‑‑The appellant Sajid Hussain has been convicted by a learned Additional Sessions Judge, Vehari, vide his judgment, dated 25‑7‑1983, under section 13 of the Arms Ordinance (XX of 1965) and has been sentenced to one year imprisonment. The learned trial Judge surprisingly has failed to mention as to whether the sentence awarded to the convict would be simple or rigorous one. The law, therefore, presumes that it will be simple. The convict, however, has challenged his conviction and sentence through the present appeal.

2. It has been alleged that during the investigation of the rain murder case against the appellant and his brothers, the appellant while in police custody led to the recovery of dagger P.1, blade whereof' was of 25 c.m. in length and 4 c.m. in breadth, vide recovery memo. Exh. P.A. which has been attested by Zahid Hussain (P.W.1), Iqbal Hussain (not produced) and Ikram‑ul‑tiaq S.I. (P.W.2). Consequently, Ikram‑ul‑Haq S.I. drafted a complaint and despatched the same to Police Station Mitru for registration of the case against the appellant under the Arms Ordinance, as the dagger could not be possessed without a valid licence but the appellant did not possess the licence for the same.

3. At the trial Zahid Hussain (P.W.1) and Ikram‑ul‑Haq S.I. (P.W.2) testified as prosecution witnesses against the appellant, who of course, pleaded not guilty and claimed that, recovery has been falsely planted on him.

4. Zahid Hussain (P.W.1) admitted that he was close relative of the complainant as well as the deceased in the main murder case. The recovery was allegedly made from the land of Ramzan H,issain, the father of the appellant. Abadi of Chah Jal Wala was admittedly close to the place of recovery. No resident of that Abadi was asked to witness the recovery. The Lambardar of the Chak according to Zahid Hussain P.W. had visited the place of recovery but he was not made a witness of the recovery. The Investigating Officer viz. Lkram‑ui‑4aq S.I. in his cross‑examination disclosed that Zahid Hussain P.W. and Iqbal Hussain (not produced) accompanied, him from Tibba Sultanpur Police Post to the place of recovery. It was an open place. It was not already guarded. It was jointly owned by Ramzan Hussain and the appellant.

5. It transpires from the prosecution evidence itself that Lambardar of the village who had visited the place of recovery has not been associated with this recovery for the reasons best known to the Investigating Officer. The residents of the nearest Abadi were also not associated. The recovery memo. has been attested by Zahid Hussain and Iqbal Hussain, close relations of the complainant and the deceased in the main murder case. They came all the way from Tibba Sultanpur to the place of recovery: Admittedly; the place of recovery was an open place jointly owned by the appellant and his father. Such place was easily accessible to any person. The recovery was effected 22 days after the occurrence of murder and more than a week after the arrest of the appellant. In these circumstances it cannot be said that the prosecution has been successful in bringing home the guilt to the appellant beyond reasonable doubt. In this view of the matter, the appeal is allowed. The conviction and sentence of the appellant are set aside and he is acquitted. S.A. Appeal accepted.