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Criminal Appeal No. 35 of 1967, decided on 14th April 1969.

-- Prosecution witnesses contradicting each other‑Unlicensed pistol recovered at a place more than 100 paces away from accused s house‑Prosecution, held, failed to prove guilt of accused beyond reasonable doubt‑Conviction set aside.

Muhammad Khurshid v. The State P L D 1960 Lah. 1202 distinguished.

Azizullah K. Shaikh for Appellant.

Nooruddin Sarki for the State.

Date of hearing : 10th April 1969.

The appellant has been convicted under section 13(e) of the West Pakistan Arms Ordinance, 1965 by the learned Sessions Judge, Nawabshah and sentenced to two years R.I. He has filed an appeal against his conviction and sentence which has now come up for hearing before me.

2. The facts material to this prosecution are as follows. The appellant was accused in a criminal case being No. 61 of 1966 of Moro Police station. P. W. Muhammad Tufail then S. H. O. of Moro Police Station was investigating that case and in pursuance of his investigations, on 20th July 1966 he arrested the appellant, and interrogated him. The appellant volunteered to produce as unlicensed pistol which P. W. Muhammad Tufail secured vide Mashirnama (Pxh. 6) P. W. Muhammad Tufail then lodged an F. I. R. against the appellant under section 13 of the West Pakistan Arms Ordinance and in due course the appellant was challaned for the said offence. In his statement in the Sessions Court the appellant denied the offence and the alleged recovery from him, and stated that he had given evidence against the son of one Khush Muhammad, therefore he had been falsely implicated.

3. In support of its case the prosecution examined only two witnesses, namely P. W. Muhammad Tufail, who arrested the appellant, and P. W. Abdul Aziz, a mashir of the alleged recovery. P. W. Muhammad Tufail said that, after he had arrested and interrogated the appellant on 20th July 1966 in connection with Crime No. 61 of 1966 the appellant took him to his house in Deh Tulchand, and from the hedge of his house he produced a pistol v hick he secured vide Mashirnama (Exh. 6). P. W. Abdul Aziz was one of the mashirs of this recovery. He did not support the case of the prosecution. In his examination- in‑chief he stated as follows:‑

"Police had not taken us (mashirs of the recovery) to the house of accused Allahwarayo, and he had not produced a pistol in our presence."

In view of this evidence, he was declared hostile and the prosecution was allowed to cross‑examine him. However, P. W. Abdul Aziz did not resile from his statement in his evidence in chief; and further said in cross‑examination as follows:‑

"I am not literate and can only sign my name. The Mashirnama says that accused Allahwarayo had produced a country‑made pistol from the hedge of his house which facts are not correct. Police had not read out this Mashirnama to me. I am shown a country‑made pistol in the Court which was secured by the police from near the dead body of deceased Khush Muhammad in the murder case. Police had seized the pistol in my presence."

Thus the evidence of this witness completely contradicts the evidence of the other prosecution witness P. W. Muhammad Tufail S. H. O. Learned counsel for the appellant has therefore argued that the prosecution has failed to prove the recovery of the pistol from the appellant and that the learned Sessions Judge erred in accepting the evidence of P. W. Muhammad Tufail S. H. O.

4. Learned counsel for the State supported the judgment of the learned Sessions Judge and relied on the observations of a learned Single Judge of this Court in Muhammad Khurshid v. The State (P L D 1960 Lah. 1202). The facts of that case were that the applicant before the High Court had been convicted under section 19 of the Arms Act, which was in force at that time, on the basis of the evidence of five police officers. The evidence of the prosecution witnesses had been disbelieved in another connected case, therefore the applicant challenged his conviction under the Arms Act on the ground that the evidence of witnesses which had been disbelieved in another case should not be accepted in the case against him. In repelling this argument, the learned Single Judge observed that there were no discrepancies in the statements of the prosecution witnesses, therefore he saw no reason whatever to reject their evidence merely because they were police witnesses, therefore he dismissed the revision application and upheld the conviction of the appellant. I am in respectful agreement with this judgment, but I do not think it helps the case of the prosecution. Unlike the case before the learned Single Judge, the position in the instant case is that the prosecution examined only two witnesses both of whom contradicted each other. It is obvious that if P. W. Abdul Aziz was speaking the truth the evidence of P. W. Muhammad Tufail S. H. O was not correct. Learned counsel for the appellant has further pointed out that P. W. Abdul Aziz had been declared hostile in the committal Court also, therefore the prosecution was fully aware of the fact that he would contradict the testimony of P. W. Muhammad Tufail S. H. O. In these circumstances, it was incumbent on the prosecution to examine the other mashir of the alleged recovery. As they have failed so to do, and bearing in mind also the fact that the recovery of the pistol was made from a hedge more than a 100 paces from the home of the appellant, I am of opinion that the prosecution have failed to prove beyond reasonable doubt the guilt of the appellant.

5. The appeal of the appellant is therefore allowed and the conviction and sentence passed against him are set aside. The bail bond executed by the appellant shall be cancelled.

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