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Criminal Appeal No. 298 of 1.974, decided on 28th January, 1979.

---S. 13---D---Evidence, appreciation of-Benefit of doubt Convic tion of accused under S. 13-D challenged on grounds that (i) no independent witness available ; (ii) evidence interested and of police official-Enmity, however, existing between Police Inspector and accused party and many persons on accused side already arrested--No independent corroborative evidence forthcoming- Fact of Police Officer searching accused without apparent suspicious circumstance, held, point to his showing extraordinary interest in accused-Accused given benefit of doubt and acquitted, in circum stances.---Benefit of doubt].

Muhammad Ibrahim Memon for Appellant.

Ghulam Ali Agha for the State.

Date of hearing : 24th January 1979.

The appellant Imam Bux was tried on a charge under section 13-D, Arms Act by the First Additional Sessions Judge, Nawabshah, and on being found guilty he was by a judgment dated 2-11-1974 convicted and sentenced to R. I. for three years. He has filed an appeal through Mr. Mohammad Ibrahim Memon, Advocate, who has appeared for him. The State was represented before me by Mr. Ghulam Ali Agha, Advocate. The learned State Counsel has not supported the judgment of the trial Court.

2. The brief facts of the case are that Head Constable Mohammad Saffar and Constable Allahdino of Deparja Police Post bad proceeded on Nakabandi duty on the night between 30th and 31st December, 1973. In the morning they were returning alongwith other police personnel in a taxi-jeep and when they reached Mitho Minor, at a distance of nine miles from Moro Police Station they saw the present appellant standing on a bridge. The police personnel suspected the appellant, challenged him, encircled him and caught hold of him. His person was searched and an unlicensed pistol and one twelve bore cartridge was secured from the fold of his loin cloth. A mashirnama was prepared by H. C. Mohammad Saffar which was attested by Constables Mir Mohammad and Allahdino. A report was lodged at Moro Police Station at 2-00 p.m. on the same day. After some formal investigation the appellant was sent up to stand trial which has resulted in his conviction and consequent sentence.

3. At the trial the prosecution examined H. C. Mohammad Saffar and Constable Allahdino, respectively. S. H. O. Azizullah who had registered the case was the other witness examined by the prosecution. While the appellant examined no witness in his defence he denied the prosecution case and. alleged enmity between the police and persons of Chandio caste residing in village Nangar. It would be a benefit to reproduce the statement that the appellant made before the trial Court

"There is quarrel between the police and Chandios of village late Nangar. Police have involved so many villagers of village late Nangar in various cases, as there was a quarrel between the police headed by A.S.L Qadir Bux on one side and the villagers of village late Nangar on the other side. My cousins, Budho Chandio and Ghulam Mustafa Chandios, have also been sent up in that case of quarrel and my uncle who is the nekmard of the village namely Adho Chandio aas sent up by the police in 110, Cr. P. C. proceed ings, in which matter my uncle Adho Chandio was let off. I have been victimised and involved in this case due to that. I was called from my village and foisted this pistol and cartridge."

4. Mr. Mohammad Ibrahim Memon, the learned counsel for the appellant has raised two-fold contentions : Firstly that there was no independent witness in this case and secondly that the evidence was interested and only of police officer. Seizure of property is normally a duty of the police. Since recovery of property may often result in conviction of citizen on a criminal charge it has always been found desirable that the police officer should obtain the services of independent mashirs. No doubt it is not an inviolable rule that persons from the public must witness a search or seizure, but in cases when witnesses are available or a police officer starts with the intention of seizing some property or to effect arrest, it is highly desirable that services of independent witnesses should be obtained. Applying the test to the present case I have found from the evidence that the appellant was standing on a bridge and his presence aroused suspicion in the mind of the police party. The witnesses in the case admitted that the road was frequented and some independent persons, at least the jeep driver, was available. It, therefore, cannot be lightly countenanced that the police officers should take upon themselves the seizure to the exclusion of independent persons from the public who could be readily available. This factor by itself creates suspicion on the conduct of the police officer. There is also a background of enmity between the persons of Chandio Caste and Assistant Sub-Inspector of Daur Police Station. The learned Advocate has pressed this point but the proximity between the seizing officer and A.S.I. Qadir Bax is not clearly established on the record. Be that as it may, the very fact of the police officer searching the appellant who was standing on the bridge without any apparent suspicious circumstances, points to the extraordinary interest that the police officer showed.

5. I am of 'the view that it would not be safe to uphold they conviction of the appellant on the uncorroborated testimony of the two witnesses. I, therefore, allow this appeal and set aside the conviction and sentence and acquit the appellant. The appellant is on bail and he need not surrender. His bail bonds shall stand discharged.

Appeal allowed.

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