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Criminal Revision Application No. 70 of 1981, decided on 27th November, 1983.

-- S. 411-Evidence, appreciation of--Police party securing bullock from accused in course of Nakabandi-Recovery not attested by any independent mashir-Police party went for Nakabandi as such ought to have taken independent mashirs - No explanation on record why this was not done-Unsafe to rely on statements of only recovery mashirs (police constables) in facts and circumstances of case-Prosecution, held, failed to prove its case beyond reason able doubt against accused-Conviction and sentence of accused set aside and accused acquitted by giving benefit of doubt.-[Benefit of doubt].

1979 P Cr. L J 721 ref.

Muhammad Nazir for Appellant.

Rashid Akhtar for the State.

Date of hearing: 20th November, 1983.

Applicant abovenamed, being aggrieved by judgment, dated 27th May, 1981 of learned II Additional Sessions Judge, Dadu, in Criminal Appeal No. 46/1978, by which said appeal was dismissed and judgment, dated 22nd August, 1978 of the learned Civil Judge and F. C. M., K. N. Shah was confirmed, by which applicant was convicted under section 13 D, Arms Act, in Case No. 91/76 and sentenced to suffer R. I. for 3 months, has preferred the above petition, on the following facts and grounds:-

The prosecution story in brief is, that S. H. O. Rukkan Police Station alongwith police party arranged a "Nakabandi between the night of 1st and 2nd January, 1978 at Khamiso Machhi Mori Dadu Canal, and at 2 a. m. hauled the present applicant and one Uris Khoso and secured one Bullock under section 550, Cr. P. C. and also recovered a country-made pistol from the possession of present applicant Roshan, both were challaned in the Court of Civil Judge and F. C. M., K. N. Shah, the theft of the bullock was not proved, but the accused were convicted under section 411, P. P. C. and sentenced to R. I. for 6 months and present applicant on the same date was convicted under section 13-D, Arms Act and sentenced to R. I. for 3 months, both the sentences were to run concurrently.

The learned Advocate for applicant in support of the above petition submitted as under:-

(a) That no independent mashir was taken by police for alleged recovery in question and as such no reliance on the statements of P. Ws., who are police constable, can be placed without independent corroboration, which is not at all available in present case.

(b) That prosecution has failed to establish its case beyond reasonable doubt.

The learned Advocate appearing for the State at the outset submitted, that he was not supporting the impugned judgment, as there was no independent mashirs of alleged recovery.

I have carefully considered the above submissions made by the learned Advocates before me and have gone through the record and proceedings of the learned trial Court and through both the impugned judgments.

The recovery mashirs in the present case are only police constables and keeping in view the facts and circumstance of the present case, it would be unsafe to rely on their statements without independent corroboration as rightly conceded by the learned Advocate for the State, as the applicant m his statement under section 342, Cr. P. C. has alleged enmity A and false involvement in the present case. The police party went for Nakabandi in instant case and as such ought to have taken independent mashirs for the said purpose, but there is no explanation on record why this was not done. In view of this, in my opinion prosecution ha failed to establish its case beyond reasonable doubt against the applicant and as such the judgments of both the learned lower Courts cannot legally be maintained. This view of mine is fully supported by D. B. Decision of this Court reported in 1979 P Cr. L J 721.

Therefore I allow the above application and set aside conviction of the appellant and sentences awarded to him by both the impugned judgments and acquit him by giving him benefit of doubt, and discharge the bail bonds executed by the applicant in above petition.

M. A. K. Application accepted.

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