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Criminal Appeal No. 50 of 1976, heard on 4th October, 1978.

-- S. 13(d)---Evidence, evaluation of---Benefit of doubt-Accused, on suspicion, searched by Police Investigation Party and a country made illicit pistol allegedly recovered from him-Prosecution examining only two police officials, members of party intercepting accused-Prosecution, held, failed to establish guilt of accused beyond reasonable doubt-Accused given benefit of doubt and acquitted, in circumstances.-[Evidence--Benefit of doubt].

Muhammad Hayat Junejo for Appellant.

Ghulam Ali Agha for the State.

Date of hearing : 4th October; 1978.

-This appeal was originally admitted as Jail Appeal No. J-500 F/1976 and subsequently the learned counsel filed power on behalf of the appellant, hence it was converted into regular appeal numbered as stated above. Another prominent feature of this appeal is that It is an off-shoot of Criminal Appeal No. 50/1976 wherein the same appellant had challenged his conviction and sentence in the connected murder case, which appeal we have allowed giving him benefit of doubt.

This appeal is directed against the judgment dated 8th December 1978 of learned II Additional Sessions Judge, Nawabshah whereby the appellant has been convicted under section 13(d) of the Arms Ordinance and sentenced to R. I. for three years. The sentence is further directed to run concurrently with the sentence of life imprisonment awarded in the connected murder case.

Prosecution story briefly is that during the investigation of connected' murder case A. S. I. Ghulam Hyder organised Nakabandi on 30-4-1974 at a. m. on Dunro Bridge of Sada Wali in Deh Rajoo Kerio Taluka Noshero Feroz. He was accompanied by a number of constables. At that time, it is stated, that appellant passed by and was challenged by A. S. I. Appellant attempted to run but was caught by the police party. During inquiry appellant gave evasive answers and finally he gave out his correct name and address. Since the appellant appeared to be a person of suspicious character, he was searched and a country made pistol was recovered from the left fold of his loin-cloth for which he could not produce a licence. Pistol was opened and it smelled of fresh smoke, hence it was seized and put into a sealed parcel and such mashirnama was also prepared at the spot, which was attested by mashirs, who were constables. Appellant was then brought to the police station, where F. I. R. Exh. 8 was filed by A. S. I. Ghulam Haider on 30-4-1974 at 9-30 a.m.

In support of its case, prosecution has examined two witnesses namely Illahi Bux H. C. as mashir and Ghulam Hyder, A. S. I. Appellant has denied allegations of the prosecution and has stated that he has been falsely implicated in this case by witnesses, who are police men and are interested. He has led no defence.

In the connected murder case, prosecution has produced this same mashirnama of recovery and the Evidence of these same two witnesses. In the connected appeal arising from that case, we have held that this evidence is not free from doubt for the reasons duly recorded in the, judgment of that appeal, mentioned above, at P. 13 to 15. Those reasons hold good for the disposal of this appeal and need not be reproduced here but may be read in conjunction with this judgment.

It is, therefore, our considered opinion that prosecution has failed in its duty to prove the guilt of appellant beyond shadow of any reason- able doubt, we, therefore give benefit of doubt to the appellant and set aside his conviction and sentence. Appeal is allowed and he may be set at liberty unless wanted in any other case.

Appeal allowed.

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