ALI GUL vs THE STATE

1. ' MAQBOOL AHMED AWAN, J.--This Criminal Revision Application arises out of the judgment, dated 25-11-2005 passed by the learned Sessions Judge, Tharparkar at Mithi in Criminal Appeal No, 6 of 2005 arising out of the Crime No,13/2005 of Police Station, Diplo for an offence under section 13-D, Arms Ordinance, 1965, whereby the conviction was recoded by the learned Civil Judge and Judicial Magistrate, Diplo on 26-10-2005 was maintained and sentenced to undergo R.I. For one year.

2. ' The allegations against the applicant in the F.I.R, is that on 12-5-2005 at 0400 hours, A.S.-I.

3. Incharge PP Kaloi Peer Nagji sent the copy of Roznamcha under Entry No,12 after incorporating the same under section 154, Cr.P.C., book and alleged that vide Entry No,ll on 11-5-2005 at 1730 hours, he along with his staff namely C/667 Haji Muhammad, C/600 Abdul Razzak in a official Vehicle No,SP- 6323 with driver Khair Muhammad and duly armed with ammunition left police post for patrolling and after patrolling different places, on 12-5-2005 at 0400 hours reached near 25 miles Mori, found one person coming from eastern side towards bridge, on seeing the police party started running.

4. The police party stopped their vehicle, encircled and apprehended the applicant and enquired about his name and parentage, who disclosed his name as Ali Gul son of Haji by caste Lund resident of Tando Bago Town, District Badin. The complainant suspecting him and arrested him under section 154, Cr.PC., and his personal search was made and recovered one country made pistol from right side fold of his Shalwar and from right side pocket of his shirt two live cartridges of white colour was secured which were taken into custody and sealed the same separately. Such mashirnama of arrest and recovery was prepared, duly attested by C/600 Abdul Razzak and C/667 Haji Muhammad, thereafter the complainant brought the accused, country made pistol and two live cartridges at PP Kaloi and alleged that the accused keeping the weapon without license committed the offence under section 13-D, of the Arms Ordinance and registered such F.I.R, as stated above.

5. ' The learned trial Court on 9-6-2005 framed the charge against the appellant Exh.2, to which the accused/ appellant pleaded not guilty and claimed to be tried.

6. ' The prosecution in support of their case, examined HC Malhar Khan Exh.3,who produced copy of F.I.R. Exh.3/4, A.S.-I. Peer Nagji Incharge PP Kaloi Exh.4, who produced copy of mashirnama of arrest and recovery and also copy of Roznamcha entry of registration of case Exhs.4/A and 4/B, mashir PC Abdul Razzak Exh.5 and co-mashir Haji Muhammad Exh.6., thereafter the prosecution closed their side and the statement of the accused under section 342, Cr.P.C, was recorded as Exh.7. The accused in the statement has denied the recovery of country made pistol and alleged that he has been falsely implicated in the case and alleged recovery has been foisted by the complainant at the instance of police constable Yousaf posted at PP Kaloi, who was inimical with him.

7. ' The learned trial Court found the appellant guilty of the offence and accordingly vide judgment, dated 26-10- 2005 convicted and sentenced to undergo R.I. For one year under section 13-D, of the Arms Ordinance.

8. ' As stated that, the appeal was filed against the conviction, which was also dismissed by the learned Sessions Judge, Tharparkar at Mithi vide judgment, dated 25-11-2005 and maintained the conviction passed by the learned lower Court.

9. ' The learned counsel appearing on behalf of the appellant has contended that the impugned judgments of appellate Court as well as the lower Court are opposed to law, facts and justice. He has further contended that the judgment of the trial Court is in contravention of provisions contained in section 367, Cr.P.C, which is without determination of any points of consideration and the same is illegal and no judgment in eye of law. The learned counsel appearing on behalf of the applicant argued that no case is made out against the applicant and the evidence produced by the prosecution is based upon mala fide and ulterior motives. He has also contended.That the police have grossly violated the mandatory provisions of section 103, Cr.P.C, while not joining the independent inhabitant person of the locality as witness. He has further argued that the claim of the prosecution appears to be false inasmuch as that in their evidence they deposed to leave to police pot after making Roznamcha Entry No,ll, but they have failed to produce the copy of said entry, which shows that the case has been managed against the accused/applicant and the recovery has been foisted upon him. He also submits that from the plain reading of the mashirnama and F.I.R., no question was asked to the accused about the possession of the license of the weapon. The police has also not informed the applicant/accused about their identity. He also argued that although it is mentioned that the recovered weapon and cartridges were sealed as mentioned in the mashirnama, but the same has not been produced in Court as case property which is fatal to the prosecution case. The weapon allegedly was not sent to the ballistic expert to obtain his opinion whether the weapon recovered from the appellant is in working condition or not.

10. Under these circumstances, he submits that the prosecution has miserably failed to establish the charge against the applicant and has prayed that the conviction recorded by the Courts below may be set aside. In support of his contentions, he has placed reliance upon the case of Nazar Muhammad v. State (1996 PCr.LJ 1410), Abdul Sattar v. State (2002 PCr.LJ 51), Ashique Ali v. State (2002 PCr.LJ 450) of the same book and Muhammad Arif v. State (2007 PCr.LJ 935).

11. ' Learned State counsel has supported the impugned judgments of the learned Courts below and submitted that the prosecution has established the charge against the applicant beyond reasonable shadow of doubt and the accused/applicant was allegedly arrested when he was found in possession of unlicensed weapon and cartridges.

12. ' I have heard the learned counsel appearing on behalf of the appellant and the learned State counsel and have perused the record and proceedings of the learned trial Courts and also the case-laws relied upon by the learned counsel for the applicant.

13. Admittedly, in this case no Roznamcha entry has been produced by the prosecution in evidence to prove that the police, in fact, left the Police Station for patrolling. This lapse on the part of prosecution has cu.t the root of the case of prosecution, thus, rendering the entire episode shrouded in doubt. This fact by itself was enough to disbelieve the prosecution version. In this respect, reference can be made to the case of Fareed Ahmed Langra v. State (1998 PCr.LJ 1368) and judgment of Division Bench in Qalandaro's case reported in 1997 M LD 1632.

14. ' It is also an admitted position that it has been mentioned in the F.I.R, that the alleged weapon recovered from the possession of the applicant was sealed at the spot and so also the cartridges, but the same was not sent to the Ballistic Expert in order to see that the said weapon was in working condition or not. The prosecution also failed to produce any certificate as envisaged under section 510, Cr.P.C.

15. ' Besides this, the applicant was not confronted with the crime weapon while recording his statement under section 342, Cr.P.C. No question was put to him as to whether the pistol was licensed weapon. It is settled principle of law that every incriminating piece of evidence is to be brought to the notice of the accused in his statement under section 342, Cr.P.C, and unless he is confronted with the material available in evidence against him, the conviction cannot be sustained.

16. ' It is undisputed fact that mashirs of recovery are police personnel. No private person was appointed to act as witness of the alleged recovery of the weapon. There is no explanation whatsoever in this respect. Even the record does not reflect, as to whether any efforts were made to procure the person from locality to act as witness of recovery, thus, there is a flagrant violation of the provisions of section 103, Cr.P.C, therefore, the alleged recovery of weapon rendered extremely doubtful. In this respect, reliance is made upon the case of Abdul Majeed v. State (1998 PCr.LJ 1381) and Abdul Wadood v. State (2001 PCr.LJ 173).

17. ' In the light of above discussion, I am of the view that the conviction passed by the learned Civil Judge and Judicial Magistrate, Diplo is set aside so also the judgment, dated 25-11-2005 passed by the learned Sessions Judge, Tharparkar at Mithi in Criminal Appeal No,6 of 2005 and the Criminal Revision Application No,S-6/2006 is allowed. The applicant is on bail, his bail bond stands cancelled and surety is discharged.