ASHIQUE ALI Versus THE STATE

1. GHULAM NABI SOOMRO, J. ‑‑‑ Appellant Ashique Ali has assailed his conviction under section 13‑D. of the Arms Ordinance, 1965 and sentence of seven years' R.I. and fine of Rs.10,000 awarded to him by the Court of learned Sessions Judge/Special Judge, (S.T.A.), Larkana in Special Case No.146 of 1997 vide judgment, dated 7‑7‑2001, through this appeal.

2. The, prosecution case, in brief, is that on 7‑12‑1996 at 6 p.m. the police party of Police Station Hyderi, Larkana headed by S.H.O. Qurban Ali Khokhar on receipt of spy information came across the appellant and his companion namely Ghulam Hyder Gopang, The appellant was found to be having a gunny bag and on its opening one S.M.G. Rifle was secured from him in presence of H.C Khadim Hussain and P.C. Mukhtiar Ali. The appellant having failed to produce the valid license for the aforesaid weapon was consequently sent up for trial.

3. A charge under section 13‑D of Arms Ordinance was framed and read over to the appellant to which he pleaded not guilty and claimed trial.

4. The prosecution in support of its case examined two prosecution witnesses namely S.I.P./S.H.O. Qurban Ali Khokhar as P.W.1 who produced Mashirnama of arrest and recovery and the F.I.R. and H.C. Khadim Hussain as P.W.2, whereafter closed its side. The appellant was examined under section 342, Cr.P.C. wherein he denied the allegations of prosecution and pleaded his innocence. At the conclusion of trial, the appellant was convicted and sentenced as aforesaid.

5. We have heard the learned counsel for the parties and perused the record of evidence and the impugned judgment. It was contended by the learned counsel for the appellant that the charge did not disclose that the appellant was accompanied by one more accused. It does not disclose if any cash or anything else was secured from the possession of the appellant and he was not arrested while going armed with the said weapon. It wag further, argued that there are contradictions in the depositions of the two P.Ws. in that the P.W. S.H.O. Qurban Ali Khokhar has stated that the number of S.M.G. was 07103 with wooden handle cut, while another P.W. namely H.C. Khadim Hussain a Mashir, has said in his cross‑examination that the weapon i.e. S.M.G. did not bear a number. He has clearly stated that, "there is no number on the S.M.G... There is no number on the spring rod of the S.M.G.". It was vehemently argued that the Station Diary Entry No.18 which ought to have been produced by the complainant has not been produced in evidence. It was urged that at no time the S.M.G. and ammunition allegedly recovered from the appellant were sealed. Further, the S.M.G was not sent to Ballistic Expert for its verification, whether it was in working order and its nature. Learned counsel has further contended that all the four articles of property were produced at the trial but were not exhibited. It was lastly urged by the learned counsel that even in 342; Cr.P.C. statement of the appellant no question regarding number of the S.M.G. has been put to the appellant. Learned counsel has placed his reliance upon the case‑law reported as 1999 PCr.LJ 595, 1998 PCr.LJ 1368, 1995 SCMR 1345 and 1997 MLD 1632.

6. Mr. Ali Azhar Tunio, learned Assistant Advocate‑General appearing for the State in view of the above defects has conceded to the contentions raised on behalf of the appellant and has not supported the conviction and sentence.

7. The record reveals that the S.M.G. Rifle and the live bullets were never sealed at all. The station diary entry which ought to have been produced in evidence was also not produced. The defects noted above and pointed out by the learned counsel for the appellant appear to be material and supported by the record. The learned Assistant Advocate‑General has, rightly not supported the impugned judgment.

8. In view of the above, the appeal is allowed and the impugned judgment is set aside. The appellant is acquitted in the case. The appellant is stated to be in jail. He shall be released, forthwith if nor required to be detained in any other case.

9. H.B.T./A‑284/K Appeal allowed.

10. ‑‑‑‑‑‑‑‑-‑‑