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Criminal Revision No.3- of 1987, decided on 2nd May, 1987
---S.342--West Pakistan Arms Ordinance (XX of 1965),S.13--- Recovery--Failure to examine accused on an incriminating point- Accused as per evidence found in possession of an unlicensed pistol alongwith cartridges yet when examined under 5.342, Cr.P.C. accused not asked specifically about its licence--Conviction and sentence set aside, in circumstances.
Din Muhammad v. The Crown. 1969 S C M R 777 and Muhammad Hafeez v. The State P L D 1984 FSC 57. ref.
Tariq Azam Chaudhry for Petitioner.
Muhammad Aslam Malik for the State.
Date of hearing: 2nd May, 1987.
Petitioner Sajid Ali (19) was found guilty and sentenced to one year's R.I. , under section 13 of the Arms Ordinance, 1965, by a Magistrate Ist Glass. His appeal was dismissed by the learned Additional Sessions Judge, Attock on 10-1-1987. The petitioner has filed the present revision, challenging the order of the learned Additional Sessions Judge.
2. The prosecution story in brief is that on 16-8-1985 at about 8 p.m. a bus from Peshawar came at Attock Check Post. On checking a .12 bore pistol alongwith two live cartridges were recovered from the bag of the petitioner. On asking, Sajid Ali, petitioner could not produce licence for the same, therefore, a case under section 13 of Arms Ordinance, 1965 was got registered against the petitioner by Mahboob Hussain S.I. vide FIR Ex.PB. Pistol .12 bore Ex.P 1 was taken into possession vide memo. Ex.PA.
3. The learned counsel for the petitioner contends that the bag from where the pistol was allegedly recovered, has not been proved to be in the exclusive possession of the petitioner. He further contends that the petitioner, when examined under section 342 Cr.P.C. by the trial Court, was not asked about the licence. This omission, according to the learned counsel has caused grave prejudice to the petitioner. In support of this contention, the learned counsel has relied upon Din Muhammad v. The Crown 1969 S C M R 777. Learned counsel for the State contends that the petitioner was specifically asked with regard to the possession of pistol, therefore, the other omission should not be material.
4. I have heard the learned counsel from both sides and have perused the record as well. The contention of the learned counsel for the petitioner is supported by the statement of the petitioner under section 342, Cr.P.C. An important circumstance which could lead to inference adverse to the accused, has not been put to the petitioner by the trial Court. The petitioner is being tried for having in possession an unlicensed pistol, therefore, the fact which required to be proved was that the petitioner did not have a licence of the pistol recovered from him. Both Courts below have drawn conclusion that the petitioner did not have any licence without questioning him about the same. He has also not been put any question in respect of the evidence of P.W.4, the Investigating Officer, who had stated that on his asking, the petitioner could not produce any licence. Both the Courts below have relied upon the statement of this witness, which become all the more necessary for the Court to have put him this question.
5. For the reasons discussed above and relying upon the judgments) reported .as Din Mohammad v. The Crown 1969 S C M R 777 and Muhammad Hafeez v. The State P L D 1984 Federal Shariat Court 57, A the revision is accepted and conviction and sentence of the petitioner is set aside. His bail bonds are discharged.
S. G. D./109/L Acquittal ordered.
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