SALAH-UD-DIN ALIAS BILLE Versus THE STATE

This is a criminal revision moved by Salah‑ud‑Din, petitioner, under section 439, Cr.P.C. challenging his conviction and sentence awarded by the learned Magistrate 1st Class Lahore vide his order dated 22‑8‑1987 and confirmed by the learned Additional Sessions Judge, Lahore vide his order, dated 19‑12‑1987. The petitioner was convicted under section 13 of Ordinance XX of the Arms Ordinance, 1965 and was sentenced to suffer one year's R.1. The allegation against the petitioner was that an unlicensed pistol was recovered (without magazine) on the pointedness of the petitioner from his house during investigation of a case F.I.R. No. 79/84 under sections 302/34, 353/333, P.P.C. The petitioner went in appeal before the learned Sessions Judge who vide his order, dated 19‑12‑1987 dismissed the same.

2. Learned counsel for the petitioner contended that the mandatory provisions contained in section 103, Cr.P.C. have not been complied with by the prosecution in not producing the witnesses from the locality from where the alleged recovery of pistol was made. Learned counsel stated that the only eye‑witness produced in the case namely Muzamal Hussain P.W.4 is admittedly not from the place of occurrence but he is the resident of Samanabad, Lahore. Learned counsel submitted that no reliance whatsoever can be placed on this evidence. It is stated that the petitioner was acquitted in the main case of murder registered amongst others against him under section 302/34, P.P.C. vide the judgment, dated 25‑2‑1986 passed by the learned Additional Sessions Judge, Lahore. It is next argued that it was necessary that the statement of the petitioner should have been recorded under section 340(2), Cr.P.C. on oath. This was not done. Learned counsel vehemently urged that there is not an iota of evidence to connect the petitioner with the commission of the crime and that he is entitled to be acquitted forthwith. The learned State counsel has half‑heartedly argued that the order of conviction and sentence of the petitioner is based on evidence and law. He stated that Muzamal Hussain P.W.4 is witness from the public and his evidence should be relied upon.

3. I have heard the learned counsel for the parties and. have perused the record very carefully. I am of the view that the prosecution has not been able to prove its case against the petitioner beyond reasonable doubt. It was incumbent upon the prosecution to have produced recovery witnesses from the place of recovery of pistol. This has not been done by the prosecution. The contention of the learned counsel for the State is that Muzamal Hussain P.W.4 is a witness from the public and as such, his evidence should be relied upon. I am afraid I cannot agree with the learned counsel for the State for the reason that admittedly the above‑referred witness is not the resident of the place of recovery but he is the resident of Samanabad. There was absolutely no occasion for the witness to have come over to the place of recovery. It is obvious that Muzamal Hussain P.W.4 is the real brother of the deceased Muhammad Latif Constable and because of this relationship he was readily available to become recovery witness. I have scrutinized the evidence available on the record as well as the judgments of the learned Courts below. I am not convinced by the judgments of the learned Courts below. The judgment of the learned appellate Court is not a speaking one inasmuch as no plausible reasons have been given for placing reliance on the evidence of the prosecution witnesses. I find that the mandate of the provision of section 103, Cr.P.C. has not been fulfilled. Muzamal Hussain P.W.4 is not trustworthy witness. There is no other evidence available on record to prove the factum of recovery of the pistol from the petitioner. Muhammad Ramzan P.W.1 and Malik Miran Bakhsh P.W.3 are the police officers. Their evidence has not been corroborated by the other independent evidence. As stated earlier, the statement of P.W.4 cannot be relied upon safely.

4. The upshot of the above discussion is that there is considerable force in the arguments of the learned counsel for the petitioner that the prosecution has not been able to prove its case against the accused beyond reasonable doubt. This being so, I proceed to accept the revision petition, set aside the conviction and sentence of the, petitioner and acquit him provided of course he is not required in any other criminal case. The revision petition succeeds and is allowed'.

H.B.T./S‑180/L Revision petition accepted.