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Criminal Appeal No. 456 of 1984, decided on 11th December, 1984.
---S. 13--Criminal Procedure Code (V of 1898), S. 342--Evidence, appreciation of--One of recovery witnesses of alleged illicit gun from accused not supporting prosecution version while other one appearing to be a witness of Police s own choice--Moreover, question whether unlicensed gun recovered from his possession, not put to accused during his examination--Conviction and sentence set aside in circumstances.
Mehr Ghulam Ali Mubashir for Appellant.
Nasim Iqbal for the State.
Date of hearing: 11th December, 1984.
Muhammad Siddiq appellant has been convicted under section 13 of the West Pakistan Arms Ordinance, 1965 and sentenced to rigorous imprisonment for two years and a tine of Rs. 2,000 or in default in the payment thereof to undergo further R.I. for four months. He has appealed.
2. The case of the prosecution is that on 4th November, 1981, Asghar Ali, Sub-Inspector was on Nakabandi duty at Canal Bridge Bakhowala. At about 11-00 a.m. the appellant came there carrying a .12 bore gun. The Sub-Inspector apprehended him and took the gun into his possession in the presence of Muhammad Nawaz and Fazal Ahmad P.Ws. vide memo. Exh. P.C. The appellant could not produce any license, therefore, he was challaned.
3. The appellant pleaded not guilty to the charge and denied the prosecution allegations against him. lie maintained that the recovery was planted on him to strengthen the case under the Hudood Ordinance.
4. The learned counsel for the appellant contends that Muhammad Nawaz P.W. has not supported the prosecution version and Fazal Ahmad P. W. is a stock witness of the police therefore the conviction and sentence of the appellant is unstainable. The learned counsel for the State submits that evidence of Fazal Ahmad and Asghar Ali Sub-Inspector has been rightly relied upon.
5. I have gone through the record and given my careful consideration to the submissions made by the learned counsel for the parties, Muhammad Nawaz one of the two recovery witnesses, did not support the prosecution version at the trial. He stated that the police had obtained his thumb-impression on a blank paper. The other recovery witness,) namely, Fazal Ahmad, admitted that he was also a witness in the connected case F.I.R. No. 157 under the offence of Zina (Enforcement of Hudood) Ordinance. He stated that he was summoned at Police Station Midh Ranjha to join the police and from there he was taken to the place of Nakabandi. He, thus, appears to be a witness of the Sub-Inspector's I own choice. The gravemen of the charge is that an unlicensed gun was recovered from the possession of the appellant. On going through the) statement of the accused, I find that it was not put to him that the gun recovered from him was unlicensed. In the circumstances, this appeal is allowed and the conviction and sentence of the appellant is set aside. He shall be set at liberty forthwith if not required to be detained in any other case.
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