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Criminal Petition No. 36‑K of 1985, decided on 4th September, 1985.

(Against the judgment of the High Court of Baluchistan at Quetta, dated 14‑7‑1985, passed in Criminal Appeal No. 22 of 1984).

‑‑‑---Art. 185(3)‑West Pakistan Arms Ordinance (XX of 1965), S. 13 (e)‑Accused having been caught in possession of unlicensed arms in front of his house‑All witnesses produced being Police officials and no effort made by Investigating Officer to get an independent person from locality though available at relevant time‑Record not indicating anything in behaviour or conduct of accused at relevant time which could be said to have aroused any suspicion in order to justify personal search of accused by Police‑Leave to appeal granted to see whether well‑established principles of appreciation of evidence in criminal cases had been followed by Court in circum stances.

Abdul Hafeez Memon, Advocate Supreme Court and Rashid Akhtar Qureshi, Advocate‑on‑Record for Petitioner.

Nemo for the State.

Date of hearing : 4th September, 1985

The petitioner seeks leave to appeal from the judgment of the High Court dated 14‑7‑1985, dismissing his appeal.

2. Briefly, the facts of the case for the purpose of this order are that at about 12.45 p. m. on the night between 3‑4/9/1982, Syed Shah Muhammad petitioner was standing in front of his house when a police party headed by Station House Officer, Police Station, Gawalmandi, Quetta, came there, searched him and finding a .38 bore revolver from the fold of his Shalwar recovered the same and arrested him for being in posses sion of an unlicensed revolver.

3. At the trial the prosecution produced 3 witnesses, namely (1) Rasool Bakhsh, Additional S. H. O. (P. W. 1), Muhammad Sharif, S. H.O. (2) Abdul Hafeez, A. S. I. (P. W. 3). It also relied on the .38 bore revolver and the 6 bullets recovered from the petitioner.

4. The petitioner denied the charge against him and stated that the revolver in question was never recovered from his possession. He stated that on the night of the occurrence tie was standing in front of his house when the police came up and wanted to search his house. Ha demanded to see the search‑warrant, which the police was unable to produce and being annoyed at the resistance put up by him the police fabricated a false case against him in order to teach him a lesson.

5. The learned Sessions Judge found him guilty under section 13(e) of the West Pakistan Arms Ordinance, 1965, and sentenced him to 3 years' R. I., and a fine of Rs. 500 or in default whereof to undergo further 6 months' R. I.

6. The petitioner filed an appeal before the High Court which was dismissed vide its order dated 14‑7‑1985. Hence the present petition.

7. The learned counsel for the petitioner pointed out that all the 3 witnesses are police officers and no effort was made by investigating Officer to get an independent person from the locality who were available at that time, to witness the alleged recoveries. He pointed out further that it has been admitted by the prosecution itself that the petitioner was A standing in front of his house at the relevant time and the P. CVs. have not been able to indicate anything in his behaviour or conduct which could be said to have aroused any suspicion in order to justify his personal search by the police.

He submitted further that the prosecution version itself supported the version given by the petitioner in his statement under section 342, Cr. P. C. He also urged that the police had acted in gross violation of section 103, Cr. P. C. in failing to examine the independent witnesses who were available at the spot as is borne out by the testimony of the defence witnesses produced by the petitioner. He also submitted that although in certain cases testimony of police officers can be relied upon but in the present nature it would set up a highly dangerous precedent to convict people on the sole testimony of the police officers because nobody would be safe if he incurred the displeasure of police officers.

8. After considering the aforementioned contentions we feel that they merit consideration. Leave is, therefore, granted to see whether the e well‑established principles of appreciation of evidence in criminal cases have been followed in this case.

9. The petitioner also applied for bail. Notice to the Advocate, General, Sind, for a date in office.

M. B. A. Leave granted.

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