MUHAMMAD IBRAHIM Versus STATE
FAZAL‑UR‑REHMAN, J. ‑‑‑This Jail appeal has been directed against the judgment, dated 12‑6‑1999 passed by the learned Sessions Judge, Khuzdar by which he convicted the appellant under section 13‑E of the Arms Ordinance, 1965 and sentenced to suffer R.I. for three years and to pay a fine of Rs.5,000 and in default of payment of fine to further undergo S.I. for three months. The benefit of section 382‑B, Cr.P.C. was also granted to the applicant.
2. Briefly stated the facts of the case are that the appellant is stated to have been arrested in connection with murder case as on 13‑12‑1998. It is alleged that one Riffle .303 bore alongwith two rounds was recovered from his possession. It is stated that his arrest was effected by P.Ws. Faqir Muhammad and Hamza, Levies Personnels at Khatichak Nall, and taken to Nall where he was produced before Naib‑Tehsildar, Nall. The recovery memo. Exh.P/1‑A has been stated to have been prepared in Sub‑Tehsil, Nall. It is the case of prosecution that since the accused/appellant did not produce any licence or permit therefore, contravened the provisions of Arms Ordinance. Accordingly a case being Crime No.28 of 1999 under section 13‑E of the Arms Ordinance was registered on the report of Faqir Muhammad against the accused. After usual investigation the accused/appellant was sent up to face his trial under section 13‑E of the Arms Act.
3. On 29‑1‑1999 charge under sec tion 13‑E of the Arms Ordinance was framed against the appellant to which he pleaded not guilty.
4. In support of its case the prosecution examined P. W.1 Hamza, P. W.2 Faqir Muhammad and P. W.3 Mehboob Ali. In his statement recorded under section 342, Cr. P. C. he denied the allegations levelled against him and pleaded his innocence. According to him he has neither committed the murder of Ghaus Bakhsh nor he was absconding. He has stated that he was arrested from his house and rifle and rounds do not belong to him. He has disputed the recovery of arms from his possession and alleged that a false case has been registered against him. When asked as to why the prosecution witnesses had deposed against him to which he stated that they made false statements against him. He pleaded his innocence and stated that he has falsely been implicated with the commission of this offence. Neither he made any statement on oath nor led any evidence in his defence. The trial Court on the assessment of the evidence came to the conclusion that the alleged recovery had been effected from the possession of the appellant and accordingly convicted and sentenced him in the manner hereinabove mentioned. Aggrieved by the above judgment the appellant has preferred this appeal.
5. We have heard Mr. Amanullah Kanrani, Advocate learned counsel for appellant and Mr. Nasrullah Khan Achakzai, Advocate for State. We have also perused the relevant record and evidence.
6. It is an admitted fact that no Mashirnama had been prepared at the place wherefrom the accused had been arrested nor any site plan of the place of recovery had been made. Similarly, no public witness has been cited to had witnessed the recovery. The distance between the place of occurrence and that of Levies Thana has been indicated in Column 4 of the F.I.R. (Exh.P./2‑A) to be 52 miles. The so‑called recovery memo. Exh.P./1‑A which is stated to had been prepared by the Naib Tehsildar when the alleged recovered rifle alongwith two rounds was produced to him does not find place the name of any public witness nor the prosecution has examined any private person to had witnessed the recovery of the rifle from the possession of accused and production of said rifle by P. Ws. Faqir Muhammad and Hamza to Naib‑Tehsildar. The record of the prosecution is also silent as to wherefrom and at what time the accused was arrested. P. W.1 Hamza who has been cited as a marginal witness of Exh.P./1‑A alongwith Faqir Muhammad had produced the said rifle and accused person to P.W.3 Naib‑Tehsildar who had been conducting investigation of the main case has stated that on the date of occurrence when Ghaus Bakhsh was murdered he accompanied Tehsildar to Khatichak and arrested the accused Ibrahim as per direction of Tehsildar. He has further stated that one .303 rifle alongwith two rounds was recovered from the possession of accused and handed over to Tehsildar who had prepared recovery memo. He has also deposed that accused could not produce any licence or permit at the time of recovery. He has produced recovery memo. Exh.P/l‑A and identified rifle and rounds as Article Exh.P/1 and Exh.P/2 and the accused person in the Court. It is pertinent to note that the occurrence of the murder of Ghaus Bakhsh has been stated to have taken place on 30‑I1‑1998 and the information was received by Naib‑Tehsildar on 1‑12‑1998 and accordingly had gone to Khatichak. The perusal of recovery memo. indicates that accused was arrested on 13‑12‑1998 and the recovery was also. effected on the same date which makes the case of prosecution doubtful as according to P.W.1 the accused was arrested on the date when he had accompanied Tehsildar to Khatichak on receipt of information regarding murder of Ghaus Bakhsh and the accused was arrested as per direction of Tehsildar. P.W.2 Faqir Muhammad in his statement has stated that on 13‑12‑1998 he was posted as Levies' Hawaldar Garoke Nall on which date Ghaus Bakhsh was murdered in Khatichak (Garoke) he accompanied Tehsildar to Khatichak where the dead body was examined by the doctor to his . presence. He has further stated that Tehsildar made direction at the spot for the arrest of accused Muhammad Ibrahim son of Ghulam Qadir and he accordingly arrested accused Muhammad Ibrahim on the same day i.e. 13‑12‑1998 from Illaqa Khatichak. He has also stated that one rifle .303 bore alongwith two live cartridges was recovered from the possession of accused and thereafter, accused alongwith recovered arms was produced before Tehsildar in Tehsil where on his report a case was registered against the accused vide F.I.R. Exh.P./2‑A. The statement of Faqir Muhammad also makes the case of prosecution doubtful. The time and the place wherefrom the accused was arrested by Faqir Muhammad has neither been disclosed by him nor by P.W.1. It is also an admitted position that Naib‑Tehsildar who had been conducting investigation of the main case was neither present at the place where the accused was arrested and the alleged recovery was effected nor any seizure memo. had been prepared by Faqir Muhammad or Hamza at the time of alleged recovery. The plea of the accused is however, that he was arrested from his house and no recovery has been effected. P.W.3 Mehboob Ali who was posted as Naib‑Tehsildar, Nall has stated that accused Muhammad Ibrahim who was wanted in a murder case of Ghaus Bakhsh was produced by Hawaldar Faqir Muhammad alongwith rifle and two rounds. According to him since accused could not produce any licence or permit for the same therefore, it was taken into possession vide Fard Exh.P./l‑A and F.I.R. Exh.P./2‑A was registered under section 13‑E of the Arms Ordinance. It is also an admitted fact that no parcel had been prepared in respect of recovered rifle and rounds nor the same have been sent to the fire‑arm expert.
7. The above statement of facts would show that the prosecution case is doubtful in nature. Omission to associate independent witness at the time of search and recovery is violation of the provisions of section 103, Cr.P.C. The learned Judge of the trial Court has also mentioned in the judgment that the accused on account of poverty had not engaged counsel to defend him as such, the prosecution witnesses during trial could not be cross‑examined comprehensively. Regarding non‑preparation of Mashiranama at the place where the alleged recovery has been stated to have been effected and non mentioning of time and place where the recovery was effected and the evidence of abovementioned witnesses make the case of prosecution doubtful and the authorities reported in 1972 Pakistan Criminal Law Journal 478, Karachi and 1995 MLD 1237 are applicable.
8. Having regard to the above mentioned factors, evidence and authorities it can be concluded that the prosecution has not been able to bring home the guilt to the accused beyond any reasonable doubt. We accordingly accept the appeal and set aside the conviction and sentence recorded against the appellant by the trial Court by extending the benefit of doubt and he is acquitted. The appellant be released if not wanted in any other case.
H.B.T./772/Q
Appeal accepted.