YASIR CHAUDHRY vs THE STATE and another

ORDER

' ALTAF IBRAHIM QURESHI, J.---Through this petition, the petitioner Yasir Chaudhry seeks setting- aside of the order dated 29-9-2011 passed by the learned Magistrate section 30, Bahawalpur, whereby petitioner's application under section 249-A, Cr.P.C., was dismissed with the following observations:-- "A perusal of record reveals, that no observation regarding the recovery of weapon of offence is made by learned Sessions Court or by the Hon'ble High Court which could shake the case of the prosecution. The custody of illicit weapon and murder of human being are entirely different matters. In the circumstances, at this juncture it cannot be concluded that the charge in the instant case has become groundless or there remains no probability of conviction of the accused".

2. Learned counsel for the petitioner, inter alia, contends that the petitioner has been acquitted in the main case of murder and this is the off-shoot of that main case; that no independent, witness of locality has been cited as P.W., as is evident from the recovery memo; that the petitioner has served out more than seven years of his sentence in this case; that the recovery of weapon was effected from the house of deceased which was not in popession of the petitioner and that the impugned order being illegal is liable to be set aside.

3. Learned Deputy Prosecutor-General has half-heatedly opposed this petition.

4. After having heard the learned counsel for the petitioner, I have noticed that the petitioner along with his co-accused, was challaned in case F.I.R. No,7 dated 6-1-2003, under sections 302/34, P.P.C.

Police Station Civil Lines, Bahawalpur. In the said Murder case, he was acquitted vide judgment of learned Division Bench dated 25/26-5-2010. In para 22 of the said judgment, the weapon of offence i.e, Pistol (P-19) was taken into possession by the Investigating Officer on 12-1-2003. Similarly the crime, empties were taken into possession on .6-1-2003. Both the items were sent to the Forensic Science Laboratory for comparison on 17-1-2003. This being so, the dispatch of the said two items with the considerable delay was held to be of no evidentiary value; hence, not relied. Recovery of the said weapon of offence i.e, Pistol was effected from the house of the deceased on 12-1-2003. No independent witness from the locality was cited as P.W. Even otherwise, the petitioner, in this case, has served-out more than 7 years and 4 months. Furthermore, the judgment of acquittal, as apprised, has not been challenged further.

5. In the case reported as Manjhi v. The State (PLD 1996 Kar. 345), it has been held that when the accused has been acquitted in the B main case, he would become entitled to acquittal in a case which is offshoot of the said case. Same is the position here, as the present lis is an offshoot of the main murder case. So, respectfully following the dictum laid down in the judgment supra, this petition is allowed and the application of the petitioner under section 249-A, Cr.P.C. Is accepted and the petitioner is acquitted of the charge in case F.I.R. No,17 of 2003 dated 12-1-2003 registered under section 7 of the Surrender of Illicit Arms. Act No,XXI of 1991 with Police Station Civil Lines, Bahawalpur. Resultantly, the proceedings before the learned trial Court are quashed.

6. According to the report submitted by the Superintendent, Central Jail, Bahawalpur, the petitioner was enlarged on bail by the learned trial Court on 8-6-2010. Therefore, the surety of the petitioner is also discharged from his liability.