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Criminal Revision No. 382 of 1984, decided on 17th November, 1984.

----‑‑‑S.439‑‑Revision admitted to consider question of sentence‑‑Petition on request of counsel, permitted to argue same on merits.

----‑‑‑S.13‑‑Recovery‑‑Witness‑‑Attesting witnesses had already accompanied police party‑‑One of such witnesses a Razakar‑‑Witnesses, at beck and call and actually forming part of police party, held, could not be taken to be independent witnesses especially when independent witnesses available at place where recovery memo. was prepared‑‑Recovery in circumstances, held, doubtful and accused acquitted by giving benefit of doubt.‑‑[Recovery].

Ch. Irshad Ahmad Virk for. Petitioner.

S.D. Qureshi for the State.

Date of hearing: 7th November, 1984.

Muhammad Ashraf, son of Abdul Karim Ansari, resident of Bhasar Pura, Kasur was challaned under section 13 of the Arms Ordinance. The Magistrate by judgment, dated 28‑1‑1‑1984 found him guilty. He was accordingly sentenced to one year's R.I. He filed an appeal. That was dismissed by the Sessions Judge by his judgment, dated 9‑6‑1984. Hence this revision.

2. As a matter of fact this revision was admitted simply to consider the question of sentence, but at the time of hearing when the record was called the learned counsel requested that he be permitted to argue the same on merits. This request was allowed by me.

3. The petitioner was hauled up on 20‑2‑1980. On his personal search, a pistol and two live cartridges were found in his possession. The petitioner could not produce any licence for the pistol. The pistol and the cartridges were taken into possession vide Memo. Exh. P. A. Muhammad Riaz S. I . drafted complaint Exh . P. B on the basis of which formal F.I.R. Exh.P.B/1 by Nishat Ahmad (P.W.4) H.C. P.S. Khanpur.

4. The short question to be considered is whether the evidence produced by the prosecution and relied upon by the two Courts below is independent, reliable and sufficient in law to uphold the conviction. For that matter, I have heard the counsel and gone through the evidence.

5. Admitted position is that Muhammad Tufail (P.W.2) and Iftikhar Hussain (P.W.3), who attested the recovery memo. were those who had already accompanied the police party. One of them is a Razakar. Such type of witnesses who are at the beck and call and actually form part of the police party cannot be taken to be independent witnesses, especially when independent witnesses were available at the place where the recovery memo. was prepared. It has also come in evidence that a Pansal Navees also turned up. He would have been an ideal independent witness to support the prosecution case. In the absence of any independent evidence the recovery becomes doubtful.

I, therefore, give benefit of doubt to the petitioner and acquit him of the charge. He shall be set at liberty forthwith, if not required in any other case.

M. A. K. Petitioner acquitted.

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