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Criminal Appeal No. 962 of 1979, decided on 7th May, 1.980.
-- S. 13-Benefit of doubt - Crime weapons recovered 10 or 11 days of apprehension of appellant- as such doubtful-Recovery memo, prepared before actual recovery-Statements about number of persons gathered at time of recovery contradictory-Accused given benefit of doubt and acquitted. -[Benefit of doubt]
Maqbool Elahi Malik and Zafar Pasha for Appellant.
Tariq Rahim for the State.
Date of hearing: 7th May, 1980.
Malik Muhammad Afzal, Additional Sessions Judge, Sheikhupura, vide his judgment dated the 29th October, 1978 found the appellant guilty of an offence under section 13 of the Arms Ordinance, 1965, convicted him thereunder and sentenced him to undergo 1 year's R. I. on the allegation of appellant being in possession of an unlicensed spear (P. 1).
2. The learned trial Court has believed the testimony of Faqir Muhammad P. W. 2, and the prosecution case that on 11th May, 1975 the appellant led to the recovery of spear (P.1) from underneath the heap of toori inside his residential haveli.
3. We have been taken through the record by the learned counsel for the appellant. It is admitted by the Investigating Officer that P. W. Faqir Muhammad had been joining the investigation since the time of commence ment of the investigation of this case, therefore, it appears that Faqir Muhammad (P. W. 2) was not an independent witness, and was interested to the prosecution. Neither the Lambardar nor the Chowkidar of the village has been produced as witnesses of recovery. It is admitted by (P. W. 2) Faqir Muhammad that Bashir Ahmad appellant was arrested on the very first day on the arrival of the police, and that he led to the recovery of spear (P. 1) on the 10th or 11th day of his apprehension.
The recovery of the spear (P.1) after 10 or 11 days of the apprehension of the appellant puts us in doubt. about the genuineness of this recovery. If the disclosure was to be voluntary the same would have been made by the appellant immediately on his apprehension and if the same was as a conse quence of third degree methods normally used by the Police, the appellant could not have withstood the rigours of investigation for 10/I 1 days.
According to Faqir Muhammad (P. W. 1), the accused was brought in the village at 10 or 11 a. m. whereas according to the recovery memo. the same has been prepared at 9 a. m. i.e. to say even an hour or two before the arrival of the appellant. Similarly according to (P. W. 2) the witnesses of recovery, two/three persons including the Chowkidar of the village we present at the time of recovery whereas according to the Investigating Officer 30/35 persons had collected there.
Bearing in mind the contradictions and other circumstances, we do no find it safe to uphold the conviction of the appellant, and by way of abun dant caution give him the benefit of doubt, allow his appeal and set aside his conviction and sentence.
Appeal allowed.
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