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West Pakistan Arms Ordinance (XX of 1965)-.

S. 13-D-Evidence, appreciation of-Apprehension of accused alongwith an unlicensed rifleat such an early part of night as 8 p.m. and his walking straight into midst of 5 Policemen, appearing unbelievable-Recovery of alleged unlicensed rifle not witnessed by any independent person-Possession of rifle by alleged accused, held, not proved by unimpeachable evidence in circumstances.

Muhammad Azeem v. State 1977 P Cr. L J 671 ref

Azizullah K. Shaikh for Appellant.

Niaz Ahmed Khan for the State.

Date of hearing : 20th January 1980.

This is an appeal against the order of Additional Sessions Judge, Jacobabad dated 25-4-1975, whereby the appellant was convicted under section 13-D of Arms Ordinance and sentenced to suffer 3 years' R. 1.

It was reported in F. 1. R. that on 30-4-1974 the Police of P. S. Tajodere had held at nakabandi at Ali Hyder Bridge and at about 8 . p.m. they saw one person duly armed with rifle at that bridge. He was challenged but he started running but was eventually caught hold of by the Police and it was the appellant. F. 1. R. was lodged at 9-3(1 p.m.

The case of the prosecution is based upon the evidence of Abdul Nab; Head Constable. He was the lncharge of the nakabandi. He was accompanied by Head Constable Muhammad Hashim and P. Cs. Abdul Ghafoor, Nabi Dad and Sardar Buksh and he stated what has been stated in the F. 1. R. He stated in cross-examination that the accused was apprehended two miles away from the Police Station. He denied the suggestion that the accused was a grazier and he was arrested because he failed to pay illegal gratification demanded by them. He has also denied the suggestion that the Police was observing Arms Week on the relevant date. He produced the mashirnama which was witnessed by Head Constable Muhammad Hashim and Police Constable Sardar Buksh. The eye-witness, who was examined was Head Constable Muhammad Hashim, who stated almost the same facts as deposed to by Abdul Nabi. The 3rd witness Ghulam Qadir S. H. O. formally proved the lodging of F. 1. R. by him as Exh. 8.

The learned Additional Sessions Judge has not found anything wrong with the statements of Police Officers. He was of the view that no enmity between the Police Officers was suggested and hence their evidence should be believed.

I do not find anything wrong with this approach. But the circumstances of this case are such that it would be difficult to uphold this conviction. In the first instance the incident is of 8 p.m. and it is rather difficult to believe that the person who is armed with an unlicenced gun would incur the risk of walking with rifle at such an early part of the night as 8 p.m. Moreover, five Police Constables could have been seen on the bridge from a distance and therefore, it would be difficult to believe that the appellant could have walked into their midst with his rifle. Moreover, the recovery of the rifle is not witnessed by any independent mashir. The stronges circumstance, I find against the prosecution case is that the Head Constabli Abdul Nabi had stated in the Lower Court that on 29-7-1974 they had made a nakabandi and they had arrested another person with a country-made pistol and in the cross-examination he had stated that they had made nakabandi to arrest the accused Ghulam Mustafa. After cross-examination the Police or the prosecution realized their mistake and he then deposed about the incident of 30-4-1974 where the accused Ghulam Mustafa was arrested.

I am impressed by the fact that in the first cross-examination of this witness in the Committal Court he had said that on 29-4-1974 they had made nakabandi for arrest of Ghulam Mustafa. Therefore, it is obvious that since Ghulam Mustafa was not arrested on 29-4-1974 then the second nakabandi on 30-4-1974 was also for the same purpose and if the Police had this advance information then it was incumbent upon them that they should have some respectable person with them. Since, this was not done, therefore, I do not think that in the circumstances of this case the appellant could be convicted for carrying a country-made rifle as the possession had not been proved by unimpeachable evidence. Reliance is placed upon 1977 P Cr. L J 671, where the recovery of fire-arm without the presence of a single independent witness was not believed and the accused was given the benefit of doubt.

Consequently, the appellant is acquitted and his bail bond is to be treated as cancelled.

Appeal allowed.

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