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Criminal Revision No. 11 of 1965, decided on 28th April 1975.

‑‑‑ S. 439‑Revision‑Benefit of doubt‑Petitioner convicted under Arms Act, for carrying an unlicensed revolver and conviction upheld by appellate Court‑False implication attributed to Police officer recovering such arm, on prompting of petitioner's enemies related to Police Officer‑Police Officer when cross‑examined, giving evasive answers and trying to disassociate himself with alleged enemies of petitioner---Defence witnesses produced to substantiate allegations of relationship and enmity going unchallenged by prosecution‑‑Case, held, one of misreading of evidence‑Petitioner given benefit of doubt and acquitted, in circumstances‑[Revision (criminal)‑Benefit of doubt‑Evidence].

Qureshi Ghulam Hussain for Petitioner.

M. A. Zafar for the State.

Date of hearing : 28th April 1976.

Atta Muhammad was convicted and sentenced by Mr. A. K. Khalid, Sub‑Divisional Magistrate, Chakwal under section 19(f) of the Arms Act, 1878, to one year's R. I. vide his judgment, dated 29‑9‑64. His appeal before the learned Sessions Judge, Jhelum, was dismissed on 10‑12‑64.

2. Hence this revision petition.

3. The brief facts of the case are that Raja Imtiaz Ahmad, S. I. P. W. while waiting for conveyance at the road side, found tile petitioner Ata Muhammad coming from Chakwal side. On seeing the police, the petitioner diverted from his route which created suspision in the mind of the Sub inspector, who apprehended the petitioner and searched his person through inayat Hussain, Head Constable. It was found that the petitioner was carry ing a revolver P. 1 and six bullets P. 2/1‑6 in his dub which were recovered and taken into possession vide memo Exh. P. B. and the same was attested by Ghulam Akbar and Jamadar Faiz Ali P. Ws.

4. I have heard the learned counsel for the petitioner as well the counsel for the State and have perused the record of this case carefully with their assistance. The learned counsel for the petitioner has submitted that the case of the petitioner can hardly be called the case of concurrent findings of fact for the reason that learned trial Court as well as the learned Sessions Judge have misread the evidence so far as it pertains to the defence evidence led by the petitioner. It was further submitted that in fact the petitioner fell victim to the enmity of a Sub‑Inspector who somehow or other, falsely implicated him for the reason that the petitioner had strained relations with Muhammad Afzal and Ghulam Muhammad who happened to be related to this officer.

5. On the other hand the learned counsel for the State has relied on the testimony of independent witnesses like Faiz Ali Jamadar and Ghulam Akbar P. Ws. who were the persons, present at the time when the revolver was recovered from the petitioner.

6. It is pertinent to note that it is a case of rare kind where the peti tioner has raised the plea of mala fide against an officer of the police who in this case happened to be the person responsible for the recovery of this incriminating weapon. In a case of such like recovery of illicit arm, where the police officer is found with a motive to implicate him, no reliance can be placed on this kind of evidence. As far as the case of the petitioner is concerned, it cannot be said that the plea raised by him can be called wholly devoid of force. It is proved from the evidence on the record that although Imtiaz Ali Sub‑Inspector was cross‑examined, yet he gave evasive answers and tried to disassociate himself with Muhammad Afzal and Ghulam Muhammad the erstwhile enemy of the petitioner. But the evidence of D. W. 1 Ghulam Yaseen clearly reveals that this was so. This witness was not cross‑examined either by the learned Additional Public Prosecutor or by a prosecuting Sub‑Inspector, therefore, his testimony cannot be discarded s untrue and presumption would be that prosecution has accepted his testi mony, as it was. I have no‑hesitation to hold that the evidence of this D. W. has not been taken into consideration by the two courts below. The petitioner has gone a step forward by producing other two D. Ws. who have substantiated his plea that he was at loggers head with his enemies Muhammad Afzal and Ghulam Muhammad, therefore, it cannot be said that this was much ado about nothing. This aspect of the case has totally been ignored by the two courts below and it can be said that this is a case of mis reading of evidence where the Court sitting in revision can take notice of such like lapses in the larger interest of justice. The cases of recovery can be easily put up by producing one or two witnesses but the difficulty lies with the defence to demolish their stand particularly when the witnesses are outwardly independent and there is no obvious motive for the police officer to falsely Implicate the accused. I must admit that this is the case which came before me for the first time in which the petitioner has been able to destroy the veracity of a witness who claimed himself to be a Sub‑Inspector of the police and has come forward to put up this case against the petitioner with the help of two other persons who ex facie looked to be independent persons.

7. The learned counsel for the petitioner has pointed out that it is also a very strange phenomenon that the Sub‑Inspector who was a guest staying with respectable persons of a village, would be left unattended by him and will stand on the road side all alone without anybody from the host side to see him off. I feel inclined to accept this argument as quite froceful, as it is a matter of common knowledge that a visit or stay of a Sub‑Inspector with somebody in the village, is always treated as a matter of great honour for that man. If this has happened as stated by Sub‑Inspector then the host would have been by his side on the day of occurrence and would have proved himself a valuable witness for the prosecution. The absence of this natural phenomenon would also go against the prosecution case.

8. The result is that I accept the revision petition, set aside the convic tion and sentence of the petitioner and acquit him giving him benefit of doubt. He is on bail. He will be discharged of his bail bonds.

Petition allowed.

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