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Criminal Appeal No. 254 of 1979, decided on 1st December, 1982.

---S. 13 (e)-Penal Code (XLV of 1860), S. 302-Recovery of un licensed country-made pistol and cartridges-Appreciation of evi dence---Witnesses, disbelieved by High Court in a criminal appeal in murder case whereby conviction set aside, held, not believable in connected appeal under West Pakistan Arms Ordinance, 1965. [Witness].

---S. 13 (e)--Recovery of country-made unlicensed pistol and cartridges---Prosecution witnesses interested and inimical to accused--Evidence of Investigating Officer also unreliable due to suspicious manner in which he conducted investigation----Method of recovery also ridiculous-Conviction and sentence set aside.

Azizullah Shaikh for Appellant.

S. Murtaza Hussain for A. G. for the State.

Date of hearing: 1st December, 1982.

Appellant Mataro was convicted by learned Sessions Judge, Tharparkar by his judgment, dated 22nd September, 1979 for offence under section 13-E, Arms Ordinance and sentenced to suffer R. I. for one year. He has filed the present appeal challenging the sentence. It is alleged that he was arrested in connection with a murder case relating to the murder of one Talho in which two other persons namely, Rehmatullah and Shahoo were also involved as co-accused with the appellant. In the murder case the appellant is alleged to have produced one country-made pistol alongwith three live cartridges before the S. H. O. Digri Mr. Abdul Khaliq in presence of mashirs Naseer Khan and Sewaj. The appellant was tried alongwith Rehmatullah and Shahoo in the murder case and was convicted by the learned Sessions Judge, but the conviction was set aside by our judgment in Criminal Appeal No. 250 of 1979. Abdul Khaliq and Naseer Khan who are witnesses in this case of recovery of fire-arm and cartridges were disbelieved by us in the above criminal appeal. This appeal being connected with the above criminal appeal, we find that the evidence of Abdul Khaliq and Naseer Khan in the present case also cannot be relied upon. The only witnesses in support of the recovery of country-made pistol and cartridges from the appellant consists of the evidence of Abdul Khaliq (Exh. 6) and P. W. Naseer Khan (Exh. 9). This Naseer Khan mashir is closely related to the prosecution witnesses in the murder case which was subject-matter of the above criminal appeal. It is also in evidence that he is interested witness and also inimical B towards the appellant, being connected with the P. Ws. in the murder case against the appellant and the co-accused. The evidence of Mr. Abdul Khaliq S. H. O. was also held to be unreliable on account of the suspicious manner in which he had conducted the investigation. The manner in which recovery is said to have been effected is ridiculous. The appellant is alleged to have been arrested on 27th September, 1977 at the Police Station in a murder case. It is unbelievable that the appellant should have voluntarily surrendered himself at the Police Station, Digri. Again there was no reason for him to have voluntarily taken the S. H. O. and the mashirs to his house and produced the incriminating weapons which were allegedly used in the incident in which the murder was commit ted and fire-arm injuries were inflicted to a relation of the deceased. We disbelieve the evidence of Abdul Khaliq and Naseer Khan for the same reason for which they were disbelieved in the murder case and allow the appeal and set aside the conviction and sentence. The appellant shall be released forthwith if not required in any other case.

M. Y. H. Appeal accepted.

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