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Criminal Appeal No. 347 of 1973, decided on 31st July 1975.

--- S. 13‑Witness‑Evidence‑Benefit of doubt‑Complainant although claiming recovered pistol yet producing no licence to prove his ownership‑Recovery witness a stock Police witness‑Accused given benefit of doubt and acquitted in circumstances,‑[Witness].

S. Hussain Asghar Rizvi for Appellant.

Imam Ali G. Kazi for the State.

Date of hearing : 31st July 1975.

This appeal is directed against the order dated 13‑11‑1973 whereby the Additional Sessions Judge, Khairpur, convicted the appellant to a term of two years' rigorous imprisonment under section 13‑D of West Pakistan Arms Ordinance, 1965.

2. The facts of the case are that on 8‑9‑1972 at about 1 p.m. the complainant (Khair Mohammad) was passing through Canal Road, leading from Faiz Wah Canal to Rohri Canal when he was stopped by the appellant and his accomplices who were armed with gun, pistol, dagger and lathi. They asked the complainant to hand over to them all his belongings and on his refusal to do so they subjected him to search. A licensed pistol, cash Rs. 40 and a Camy watch were recovered as a result of the personal search which was carried out by the appellant and his accomplices. After this, the appellant arid his accomplices left the place of occurrence. The complainant on his way came across Sultan baildar whom he narrated the story. While be was doing so one Hussain Bux, a telephone clerk also reached there and he also heard the story. Hussain Bux informed that he had seen four persons who were passing from Rohri Canal. Afterwards, the complainant and Hussain Bux went towards the Rohri Canal and while they were still on way they met Muharram and Sono and other persons who were informed about the robbery. They tried to track the foot‑prints of the appellant and his accomplices but they failed in their efforts. Then they went to Fatehpur village and met Qasim Ali Shah to whom they narrated the incident. Qasim Ali Shah provided the complainant with trackers to track the footprints of the appellant and his accomplices but the trackers also failed in their efforts because the path which the appellant and his accomplices had used was covered by the tree leaves and it was also getting dark. On the next morning also the trackers tried to track the footprints of the accused but they failed. At about 2 p m. on the next day (9‑9‑1972) a report of the incident was lodged in the Police Station Tando Masti.

3. Muhammad Nawaz, S. H. O., Tando Masti police station initially investigated the case but subsequently he handed over the investigation to Mohammad Sirajuddin, SLOP who on 16‑9‑1972 received an information that the appellant and his accomplices were available in village Dando, district Khairpur. As such he took two mashirs namely, Mehrab and Allah Warayo alongwith him and raided the village which is situated at a distance of about 14 miles from Khairpur city. He found all the four accused present in one house. He took the search of their persons arid also searched their houses. As a result of search a country‑made pistol was recovered from the possession of appellant's accomplice Umar, one Spanish pistol allegedly belonging to the complainant was recovered from the appellant Salim and one watch and one gun owned by some Ashiq Ali from appellant's accomplice Shabbir. One single barrel gun owned by one Ghulam Mustafa was recovered from the appellant's accomplice Ali Muhammad.

A case under section 392, P. P. C. had already been registered against the appellant and his accomplices by the S. H. O. Tando Masti but now on the recovery of the fire arm which was allegedly kept by the appellant without licence; Sirajuddin lodged a separate F. I. R. against the appellant and his accomplice on 17‑9‑1972 at 4‑45 p.m. in Tando Masti Police Station. This resulted into the registration of separate cases under section 392/34, P. P. C. and 13‑D of the Arms Ordinance against all the accused.

4. In his defence the appellant stated that he was inter‑related with other accused and had been falsely implicated in the case due to his landlord's enmity with one Noor Khan Jatoi.

5. The learned counsel for the appellant has contended that : (i) licence of the pistol was not produced by the complainant Khair Mohammad so as to prove that the pistol was owned by him ; (ii) the recovery was not made strictly in accordance with the provisions of 103, Cr. P. C. and the mashir was a stock witness of the police as he himself admitted that be had appeared in 4/5 other police cases ; and (iii) it was not possible that the appellant would be sitting with his co‑accused in the robbery case at 6 30 a.m. in the morning duly armed.

6. I have heard the arguments of the learned counsel for the appellant. The recovery is doubtful as firstly, it does not seem likely that at 6‑30 a.m. the appellant would be sitting alongwith his co‑accused possessing the army with him. That there were two mashirs of recovery of which only one hay been examined by the prosecution and he clearly seems to be a stock witness of the police as he has admitted that he appeared as recovery witness in 4/5, other police cases. His evidence cannot therefore be relied upon.

7. The complainant has also not produced the licence of the pistol so as to prove the ownership of the pistol. The prosecution has as such been conducted in a very slipshold manner and creates a genuine doubt about the truthfulnes of the case. The conviction mainly rests upon the recover which is doubtful. Therefore, the benefit of doubt should go to the appellant.

8. The learned counsel for the State concedes that the recovery is doubtful and the conviction is not sustainable.

9. As a result of above discussion I set aside the judgment of the; learned Additional Sessions Judge Khairpur. 'The appellant would be set at liberty forthwith unless required in any other case.

Appeal allowed.

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