SHAUKAT ALI Versus THE STATE

Shaukat Ali son of Muhammad Hayat appellant was tried by the learned Additional Sessions Judge, Faisalabad for having been found in possession of an unlicensed .30 bore semi-automatic Pistol alongwith 18 cartridges of .30 bore during raid on 20-9-1991 on the information of one accused Yousaf alias Bala who was already in police custody; Shaukat Ali appellant was apprehended by Khalid Mahmood, S.I. P.W.4 Police Station Batala Colony, Faisalabad. On the conclusion of trial, he vide judgment, dated 18-6-1992 was convicted under section 7(1)(c) of the Surrender of Illicit Arms Act, 1991 and sentenced to seven years' R.I.

2. The prosecution examined four P.Ws. in support of its case. Irfan Ullah Khan, Moharrar Head Constable appeared as P.W.1 w11o verified that on receipt of complaint Exh.PA., he had formally recorded F.I.R. Exh.PA./1. Inayat Ullah Khan, A.S.I. P.W.2, Ghulam Habib, Constable P.W.3 and Khalid Mehmood S.I. P.W.4 fully supported the prosecution version.

3. The learned counsel for the appellant vehemently contended that the prosecution has failed to prove its case beyond reasonable doubt against the appellant inasmuch as the recovery witnesses consist of only police officials and that no witness from police was produced to prove the recovery, although the raiding party was definitely in position to involve public witnesses as the raid was made during day time in a very thickly populated area of Batala Colony. Khalid Mehmood, S.I. P.W.4 was at the same time head of raiding party, complainant of the case, recovery eye-witness of pistol and cartridges 'and Investigating Officer of the case; hence testimony of police witnesses was not confidence inspiring. The learned counsel lastly agitated that section 7(c) of Surrender of Illicit Arms Act (XXI of 1991) was not attracted as the prosecution failed to prove that the pistol and cartridges recovered from the appellant's possession were the same which he had in possession and had failed to surrender on or before 31-7-1991, the date specified by the Government for the surrender of illicit arms which was a condition precedent for conviction.

4. The learned counsel for the State supported the prosecution version and relied upon Nasrullah Khan v. The State 1992 P Cr. L J 324 in which their Lordships upheld the conviction of the accused by relying on the statements of recovery witnesses who were from the police.

5. I have heard the learned counsel for the parties at some length and have examined the record with their able assistance. I am of the view that recovery was effected from a very thickly populated area in a day time; therefore, it was necessary for the prosecution to have joined public witnesses under section 103, Cr.P.C. to witness the alleged recovery of .12 bore pistol and cartridges from the appellant's possession. The evidence of Khalid Mehmood S.I. P.W.2 at a time as head of raiding party, recovery witness, complainant as well as Investigating Officer, under the circumstances cast serious doubt upon A the veracity of prosecution case. Keeping aside other facts of the case, the appeal can be accepted on the sole ground that the prosecution failed to prove that the pistol and cartridges recovered front the possession of the appellant were the same which he had in possession and had failed to surrender on or before 31-7-1991, the date specified by the Government for the surrender of illicit arms which was condition precedent for conviction. Consequently, I have no option but to allow this appeal, set aside the conviction and sentence of the appellant and acquit him.

N.H.Q./S-521/L Appeal allowed.