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Criminal Appeal No. 64 of 1982, decided on 28th October, 1984.

‑‑S. 13‑‑Evidence‑‑Recovery witness residing at a distance of 4 Acres from place of recovery‑‑Other prosecution witness from public although available but not produced‑‑Held, best evidence was withheld‑‑Evidence of sole witness not inspiring confidence in circumstances‑‑Accused given benefit of doubt and acquitted.‑‑[Witness].

Raja Muhammad Anwar with M.A. Aziz for Appellant.

Arif Sajjad, for A.‑G. for the State.

Dates of hearing: 24th and 28th October, 1984.

This is an appeal by Sher Muhammad against his conviction and sentence under section 13 of the Arms Ordinance, 1965, recorded by the learned Sessions Judge, Mianwali, on 19‑1‑1982.

2. According to the prosecution story, the appellant when arrested on 28‑7‑1980, in the connected murder case, produced gun P.1 with three live cartridges P.2/1‑3, which were taken into possession vide memo. Exh.P.A., in the presence of Sher Muhammad P.W.1, Muhammad Shafi S.I, since dead and Mardan (given up P.W). The proceedings taken by Muhammad Shaft S.I. were proved by Dost Muhammad H.C. P.W.2 at the trial, as, in the meantime, Muhammad Shafi S.I. had died.

3. With the assistance of the learned counsel for the appellant and the State, I have gone through the oral and documentary evidence on the record. According to the testimony of Sher Muhammad P.W.1, he and Mardan (given up P.W.) joined the police investigation and when the police party raided the Dera of one Ghulam Muhammad, they found Sher Muhammad, appellant, and two other accused of the main murder case, present with their fire‑arms. The appellant was having the gun P.1 with three live cartridges P.2/1‑3 on his person. He admitted that his house was four Acres from the Dera of Ghulam Muhammad and that the house of Mardan (given up P.W.) was about five or six miles from his house. Muhammad Shaft S.I. having died, could not be produced, but it is strange that Mardan P.W., who was very much alive and present, was given up. In his stead, Dost Muhammad H.C. P.W.2 was produced to identify the handwriting and signatures on the complaint Exh. P.B., the recovery memo. Exh.P.A. and site plan of the place of recovery Exh . P.C. It seems that the best evidence was withheld. Mardan P.W. should have been produced in these circumstances. It seems strange that Sher Muhammad appellant, and his two co‑accused were present at the Dera of Ghulam Muhammad, three miles from the spot, ready and willing to be picked up by the police with their fire‑arms and cartridges and bullets. The sole evidence of Sher Muhammad P.W.1 does not inspire confidence. Mardan P.W. has not been produced. The appellant is, therefore, entitled to the benefit of doubt.

4. For the foregoing reasons, this appeal is accepted and the conviction and sentence of Sher Muhammad, appellant, is set aside. He is on bail. His bail bond shall stand discharged.

S. A,

Appeal accepted.

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