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Criminal Appeal No. 46 of 1985, decided on 2nd November, 1985.
(On appeal from the judgment, dated 26‑2‑1985 of the Lahore High Court, Lahore in Criminal Revision No. 90 of 1985).
‑‑‑S. 13‑‑Appreciation of evidence‑‑Accused convicted for keeping gun and cartridges without licence‑‑Conviction based on evidence of three witnesses belonging to police department‑‑Independent public witness not examined despite his being available‑‑Case property not having been produced with challan and identification of gun recovered not established satisfactorily‑‑View taken by High Court that production of case property was required when its ownership was disputed in theft cases, not being supported by any law or principle, not sustained‑ Courts below not observing established principles of appreciation of evidence in criminal cases and not giving proper attention to its conduct presumably considering it to be a trivial or unimportant matter‑‑Appeal accepted and conviction set aside by Supreme Court.
S.M. Idrees, Advocate Supreme Court (absent) and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record (absent) for Appellant.
Mian Inamul Haq, Advocate Supreme Court and Rao Muhammad Yousuf, Advocate‑on‑Record (absent) for the State.
Date of hearing: 2nd November, 1985.
The appellant, Dost Muhammad, was convicted by a Magistrate First Class, Jauharabad, on 17‑1‑1985 under section 13 of the Arms Ordinance (XX of 1965) and sentenced to undergo one year's R.I. for having in his possession a .12 bore gun and two cartridges without licence.
His appeal before the Additional Sessions Judge and revision before the High Court having failed hence this appeal, by leave of this Court.
According to the case of the prosecution Ghulam Ali, S.I. (P.W.3) accompanied by Sultan Khan, Head Constable (P.W.1) and Muhammad Riaz, Constable (P.W.2) were proceeding towards the village Thathi Karani at about 6 p.m. on the evening of 16th February, 1984 in connection with the investigation of another case (under section 506, P. P. C.). While they were passing near the graveyard the appellant emerged all of a sudden from a cluster of the trees of the graveyard with a gun in his hand. As he was carrying a gun in his hand he was given a chase and apprehended. On his personal search two cartridges were recovered from the pocket of his shirt. Since the appellant had no licence for keeping the gun he was challaned and convicted as mentioned above.
It is an admitted position that the appellant was convicted on the evidence of three witnesses who all belonged to the police department and no independent witness belonging to the public was examined, although two such witnesses were available, namely, a Lambardar who allegedly witnessed the recovery and the driver. It is also admitted that the case property was not produced alongwith the challan and although it appears that the gun and cartridges were produced in Court during the recording of the statements of the P.Ws. the identifi cation of the gun allegedly recovered from the accused cannot be held to have been established satisfactorily in such circumstances.
We would also observe that the view of the learned Judge of the High Court that production of the case property is required when its ownership is disputed in theft cases, where the accused has claimed the property as his own, does not appear to be supported by any law or principle. Furthermore, the observation of the High Court that there was no suggestion from the defence side that the police was hostile towards the appellant and for that reason he was involved falsely in the case is also inaccurate. Such a suggessation was, indeed, made to Sultan Khan S.I. (P.W.3) in his cross‑examination.
After examining the whole case and perusing the record we are satisfied that the Courts below have not observed the established principles of appreciation of evidence in criminal cases and in fact, have not given any proper attention to its conduct, presumably considering it to be a trivial or unimportant case.
The result is that this appeal is allowed and the judgments of the Courts below are set aside. The appellant shall be discharged from his bail bonds and he will be set at liberty forthwith, if not wanted in any other case.
M.I. Appeal allowed.
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