MUHAMMAD AZEEM versus THE STATE

West Pakistan Arms Ordinance 1965 Section 13 Sentencing, Benefit From Recovery Only two police officers appeared as witnesses to the recovery, and no independent public witness cited the possibility that the accused was falsely implicated in the case. Was involved, not denied and on suspicion the accused was taken advantage of. Bad, in circumstances [witnesses benefit of doubt]

1977 P Cr. L J 671

[Karachi]

Before Mushtak Ali Kazi, J

MUHAMMAD AZEEM‑Appellant

Versus

THE STATE‑Respondent

Criminal Appeal No. J‑285 of 1975, decided on 3rd June 1976.

West Pakistan Arms Ordinance (XX of 1965)‑

---S. 13‑Conviction, propriety of‑Recovery‑Benefit of doubt-- Only two police officers appearing as witnesses to recovery and not a single independent public witness cited‑Possibility that accused was falsely implicated in case, not ruled out‑Accused given benefit of doubt and acquitted, in circumstances.‑[Witness Benefit of doubt].

Appellant through jail

Habibur Rashid for A.‑G. for the State.

Date of hearing: 3rd June 1976.

JUDGMENT

The appellant has been convicted by Additional Sessions Judge, Jacobabad for offence under section 13‑D, Arms Ordinance, for having been in possession of unlicensed single‑barrel shot‑gun and cartridges of ' 12 bore, and he has been sentenced to undergo R. I. for 2 years.

2. It is the case of the prosecution that on 15‑9‑1973 Mr. Nazeer Hussain S. H. O., Kashmore Police Station while on patrol duty at 7th mile of protection bund of Gehalpur found the present appellant coming from the western side at about 10‑30 p.m. with a gun in his hand. He was challenged and caught and the ' 12 bore gun with 5 live cartridges was recovered from his possession. A. S. I. Aitabar Khan and Head Constable Abdul Hakim acted as Mashirs. The case was then registered against the appellant who was sent up in Court and convicted as above. He has appealed from Jail.

3. The version of the appellant is that he is innocent and he has been got implicated by his Zamindar who used to visit his hutment. He had objected to the visits of the Zamindar to his house. Zamindar had therefore got him falsely implicated with the help of the police.

4. Besides the S. H. O. who is the complainant in this case, only one witness Aitabar Khan who was an A. S. I. at that time, has been examined as Mashir. The copy of the station‑diary entry has not been produced to show that the S. H. O. had actually left the police station at that hour on partol duty. Usually during Nakabandi operations Mashirs from the public are also taken but in the present case not a single independent Mashir has been cited. The appellant is a Sheikh by caste and ordinarily Sheikhs do not go about carrying arms. Mr. Habibur Rashid appearing for the State frankly states that there are only two police officers appearing as witnesses in this case and the facts and circumstances go to show that the prosecution story is entirely doubtful. That the possibility of the appellant having been h falsely implicated in a case of this nature cannot .be excluded. Benefit of reasonable doubt is accordingly allowed to the appellant and his conviction and sentence are set aside. The appeal is accepted. The appellant may be released if not required in any other case.

Appeal allowed

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