THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA.
Crl. Appeal No.98 of 2009
PRESENT :
Abdul Rasool Memon, J.
Appellants Abdul Rahim alias Tillan through Mr. Faiz Muhammad Larik advocate.
Respondent :The State through Mr. Muhammad Yaqoob Dahani advocate.
Date of hearing: 04.7.2012
J U D G M E N T .
ABDUL RASOOL MEMON, J- By this judgment, I propose to decide Crl. Appeal No.98/2009. The Ist Assistant Sessions Judge, Jacobabad vide his judgment dated 05.11.2009 convicted and sentenced the appellant to undergo R.I for five years under section 13(d), of West Pakistan Arms Ordinance, 1965 and benefit of section 382-B, Cr.P.C was also extended to him.
2. The charge against the accused is that on 15.5.2009, the SHO Ahmed Yar Bajkani along with HC Pervaiz Ahmed and PC Zulifqar Ali was on patrolling. At about 22000 hours, he received information from Moulvi Ghulam Ali on mobile phone that accused Abdul Rahim alias Tillan son of Bakhsh Ali Bangulani entered in his house to commit offence who was apprehended along with Klashnikov. On receipt of such information, complainant reached there at 2300 hours. He (Moulvi Ghulam Ali) handed over the accused with recovered K.K and on his checking ten live bullets in the magazine were also found. On enquiry the accused could not produce any permit. The complainant SHO Ahmed Yar prepared the mashirnama of arrest and recovery in presence of two mashirs namely Muhammad Panah and Riaz Ahmed and brought him at Police Station Meerpur Buriro where two FIRs were registered, one by Moulvi Ghulam Ali being Crime No. 08/2009 for offence under section 451/2, 337-H(ii), PPC and other by SHO Ahmed Yar under section 13(d) of West Pakistan Arms Ordinance, 1965.
3. To prove its case, the prosecution examined PW-1 Ahmed Yar, the complainant at Ex-4 who has produce FIR, mashirnama and daily diary at Ex-A to C. Riaz Ahmed PW-2 at Ex-5, SIO Muhammad Rahim at Ex-7, co-mashir Muhammad Panah at Ex-08.
4. The accused in his statement recorded under section 342, Cr.P.C at Ex-10 denied the prosecution case and claimed himself as innocent. He neither lead any evidence in his defence nor examined himself on oath in disproof of the charge.
5. After hearing the leaned State Counsel and the accused, the learned trial Court came to the conclusion that the charge against the accused stands proved and accordingly sentence as mentioned above was awarded to the accused.
6. In support of his appeal, the leaned counsel for the appellant has submitted that two public persons namely Riaz Ahmed and Muhammad Panah, were examined who have been declared hostile as they did not support the prosecution version and they have stated in their depositions that the Investigating Officer obtained their signatures on white paper. They neither identified the alleged recovered property nor the accused in Court. Therefore, the evidence of the complainant cannot be accepted as gospel truth without independent corroboration. Secondly per learned counsel the weapon allegedly recovered from the accused was neither sealed on the spot nor the same was sent to ballistic expert and the accused was not confronted with the weapon recovered from him in his statement under section 342, Cr.P.C. Finally per learned counsel the opinion of the ballistic expert is not produced on record that whether the said K.K was in functioning or not. In support of his contention, the learned counsel for the appellant has placed his reliance on the cases of The State through Advocate General & Ex-officio Public Prosecutor versus Jameel Ahmed (1984 P.Cr.L.J 1011), Abdul Sattar and others versus The State (2002 P.Cr.L.J 51), Budho Malgani versus The State (2002 MLD 1293), Imamuddin versus The State (2005 YLR 845), Fareed Ahmed Langra versus The State (1998 P.Cr.L.J 1368), Sajjan versus The State (1998 P.Cr.L.J 1399), Abdul Wadood versus The State (2001 P.Cr.L.J 173), Loung versus The State (1999 P.Cr.L.J 595) and Ashique Ali versus The State (2002 P.Cr.L.J 450).
7. Mr. Muhammad Yaqoob Dahani, learned State Counsel has conceded with the arguments advanced by the learned counsel for the appellant and has contended that mashirs to recovery have belied the case of prosecution hence the evidence of the complainant Ahmed Yar does not inspire confidence as is not sufficient for maintaining the conviction awarded by the trial Court.
8. The two independent witnesses who have acted as mashir of recovery as per prosecution case, both of them Riaz Ahmed and Muhammad Panah have stated that the complainant obtained their signature on while paper. They neither identified the accused in Court nor the alleged recovered property. In view of the evidence of two mashirs that the police has obtained their signatures on blank paper, no reliance could be placed on such recoveries. Such dictum is laid down in the case of The State through Advocate General & Ex-officio Public Prosecutor versus Jameel Ahmed (supra). It has come on record that weapon recovered from the accused was neither sealed at spot nor the same was sent to ballistic expert.
9. Accused was not confronted with the weapon recovered from him in his statement under section 342, Cr.P.C, even no question is put up whether he possesses the permit or license of the same.
10. In view of the above circumstances, only evidence remains in field is of complainant SIP Ahmed Yar which suffer from infirmities and belied by mashir of recovery does not inspire confidence. Moreover the case registered by the Moulvi Ghulam Ali as Crime No.08/2009 has ended in acquittal.
11. The above facts and discrepancies suggest that the evidence brought on record by the prosecution is defective and inadequate for conviction and the appellant is entitled for acquittal. The appeal is accordingly allowed and conviction and sentence awarded by the Ist Assistant Sessions Judge, Jacobabad is set aside. The appellant is present on bail, his bail bond stands cancelled and surety is discharged.
Judge