PAHELWAN Versus THE STATE

IMAM ALI G. KAZI, J .--- The appellant Pahelwan is convicted by the Special Judge (S.T.A.) Court No.IV, Karachi, under section 13-D, Arms Ordinance to suffer rigorous imprisonment for 5 years and pay fine of Rs.1,000 and in default thereof suffer imprisonment for 6 months more, by his judgment passed on 18-5-1993. The appellant has filed the present appeal against that judgment.

2. The brief facts of the prosecution case are that on' 13-1-1993 Sub -Inspector of Police, C.I.A. left for patrolling the area. When he reached the area of Daryabad in Baghdadi Lane No.4, he received a spy information` that a person was in possession of unlicensed arms and ammunition. He, therefore, went towards that place and found a person standing there. On search one Klashnikov and two magazines having 50 rounds were secured from his possession. The Sub-Inspector Police wrote out these facts and sent it for registration to Police Station Clifton C.I.A. and after usual investigation sent up the applicant for trial.

3. During the trial the prosecution examined S.I.P. Ghulam Subhani, Abdul Majeed and Muhammad Irshad and closed their side.

4. Appellant in his statement under section 342, Cr.P.C. denied the allegations made against him by the prosecution and stated that he was a Chowkidar of Seth Ameen working in Gali No.4. He had gone to bring tea at about 1-30 p.m. and on his return police were raiding a building of Badshah Khan, thereafter police arrested him and foisted the Klashnikov and the ammunition. He examined himself on oath under section 340(2), Cr.P.C. and also examined defence witnesses Alam and Muhammad Khan in his defence.

5. On appraisal of the evidence and hearing the parties, the trial Judge found appellant guilty of illegally possessing a Klashnikov with two magazines containing 50 rounds and recorded the punishment under section 13-D of Arms Ordinance as mentioned hereinabove.

6. Mr. Sardar Muhammad Ishaque, Advocate for the appellant has pointed out following discrepancies in the case:--

(i) According to the evidence of the main prosecution witness S.I.P. Ghulam Subhani, spy information was received by him at 3-00 p.m. while he was on patrolling duty, but the Mashirnama of arrest of the appellant is recorded at 14-40 hours.

(iii) According to the case of the prosecution, the appellant was holding the illicit arms in his arm. The Mashir an independent witness has stated that the arms were secured from a box lying locked from a house under construction.

7. It is correct that the above discrepancies in evidence appear very patently in the case. These discrepancies are material for the decision of the case itself. On such account Mr. Abdul Lateef Ansari, AA.-G. Sindh very frankly stated that the appellant is entitled to benefit of doubt.

8. For the foregoing reasons, we accept this appeal, set aside the judgment and sentence awarded to the appellant and direct that the appellant shall be released forthwith if not required in any other case.

N.H.Q./P-294/K Appeal accepted.