BAHADUR KHAN Versus State

ORDER

MALIK HAQ NAWAZ, J .---Since both the criminal appeals involves similar question of law and facts, therefore, these are being disposed of through this single judgment. The appellants were convicted by the learned Additional Session Judge Gilgit vide judgment/order dated 31-08-2019, which have been challenged before this Court by filing Cr. Appeal Nos. 18/2019 and 19/2019.

2. The learned counsel for the petitioners submitted that despite availability of independent witnesses the local police has not associated any private respectable member of the locality, which is a clear violation of section 103, Cr.P.C. The learned counsel for the convict appellant further submitted that the incriminating weapon of offence were not sealed at the time of recovery and were also produced in the trial Court in unsealed condition. The learned counsel further submitted that there are material contradictions in the statements of PWs which have not been adverted to by the learned trial Court. Lastly that there are material contradictions in the statement of recovery witnesses in the FIR, which could not be reconciled and the convict/appellants are entitled for acquittal from the charges.

3. On the other hand the learned Dy. Advocate General submitted that the police officials are as good witnesses as any other member of the general public. The learned Dy. Advocate General further submitted that no reasons have been brought on record by the prosecution to falsely implicate the present appellants in the case. The learned Dy. Advocate General prays that the conviction awarded by the learned trial Court be maintained, as the learned trial Court already taken a lenient view.

4. The lengthy arguments of the learned counsel for the appellants and the learned Dy. Advocate General heard and the record of the trial Court also examined. The star witness in the Sessions Case Nos. 55-56/2016 is PW FC Nowshad Ahmed. During the course of cross-examination he categorically stated that the recoveries were effected at 01:00 p.m. on 07-07-2015. He further stated that both the weapons were recovered from the house of the accused. His statement in both of the cases is same and it is not ascertainable, whether both the weapons were recovered from the house of appellant Bahadur Khan or from the house of appellant Mehboob Hussain, which is a material and fatal contradiction and cannot be reconciled. The statement of FC Nowshad Ahmed is quite contradictory to the time of occurrence which is show as 16:00 hours in FIR No. 24/2015 and 16:20 hours in FIR No. 26/2015. The charge of the accused was framed by the learned Judicial Magistrate Danyor which and it was that no certificate under section 364, Cr.P.C. which was a mandatory requirement. The charge is defective and the time of occurrence in the charge framed against Bahadur Khan is also incorrect. The prosecution miserably failed to connect the appellant with the alleged offence beyond any reasonable doubt.

5. As result of above discussion both the appeals are allowed. The convict/appellants are directed to be released forthwith if not to be required to be detained in any other case.

6. The weapons shall stand confiscated in favour of State.

SA/155/GB Appeals allowed.