Cr. Appeal No.D-03 of 2007

For Regular Hearing

Present:

Mr. Justice Naimatullah Phulpoto &

Mr. Justice Rasheed Ahmed Soomro.

Date of hearing: 26.07.2017.

Date of judgment: 26.07.2017.

Mr. Muhammad Aslam Shahani Advocate for the appellant.

Mr. Saleem Akhtar Buriro, Additional Prosecutor General.

J U D G M E N T

NAIMATULLAH PHULPOTO, J. Appellant Abdul Jabbar alias Abdul Ghafoor was tried by learned 2^nd Additional Sessions Judge/Special Judge, STA, Mirpur Mathelo at Ghotki in special case No.57/2000 for offences under Section 13(d) Arms Ordinance, 1965, crime No.186/1998 registered at PS Mirpur Mathelo District Ghotki. After trial appellant vide judgment dated 08.01.2007 was convicted under Section 13(d) Arms Ordinance, 1965 and sentenced to four years R.I.

2. Brief facts of the prosecution case, as disclosed in the FIR, are that on 01.11.1998 at 2-00 a.m. complainant SIP Ghulam Mustafa, SHO, PS, Mirpur Mathelo along with subordinate staff left Police Station and held nakabandi on road, where it is alleged that accused Abdul Jabbar appeared and he was arrested. He was carrying Kalashnikov (SMG) bearing No.18122817 with thirty 7.62 live bullets. It is alleged that it was snatched by the accused from PC Muhammad Mithal Larik of PS Mirpur Mathelo. Due to non-availability of private mashirs, SHO made ASI Abdul Hakeem and HC Imdad Ali as mashirs of arrest and recovery. Thereafter, accused and case property were brought at PS where FIR bearing crime No.186/1998 was lodged by SIP Ghulam Mustafa on behalf of State under Section 13(d) Arms Ordinance, 1965.

3. During investigation, 161 Cr.P.C statements of the prosecution witnesses were recorded. On conclusion of investigation, challan was submitted against the accused under Section 13(d) Arms Ordinance, 1965.

4. Trial Court framed charge against the accused under Section 13(d) Arms Ordinance, 1965 as Ex.2. Accused pleaded not guilty and claimed to be tried. At the trial, prosecution examined PW-1 ASI Abdul Hameed as Ex.4, who produced attested copy of mashirnama of arrest and recovery as Ex.4-A. PW-2 SHO Ghulam Mustafa as Ex.5, who produced FIR as Ex.5-A. Thereafter, prosecution side was closed.

5. Statement of the accused was recorded under Section 342 Cr.P.C as Ex.9 in which accused claimed false implication in this case and denied the prosecution allegations. Accused raised plea that he has been involved in this case falsely at the instance of his enemies. Accused examined himself on oath in disproof of prosecution allegations but led no evidence in his defence.

6. Learned trial Court after hearing the learned counsel for the parties and assessment of the evidence available on record, convicted and sentenced the accused as stated above. Hence this appeal is preferred by him.

7. The facts of this case as well as evidence produced before trial Court find an elaborate mention in the judgment passed by the trial Court and therefore, same may not be reproduced here so as to avoid duplication and unnecessary repetition.

8. Learned counsel for the appellant mainly contended that arrival and departure entries have not been produced before the trial Court. He has further contended that patrolling places have also not been mentioned by the prosecution witnesses and case property was not sealed at spot. It is also argued that according to the prosecution case SMG was snatched from PC Mithal but neither said Mithal was produced at trial nor record of the PS regarding snatching of the SMG was produced before the trial Court. Learned counsel for the appellant further argued that there are material contradictions in the evidence of prosecution witnesses. He has submitted that mashir has deposed that accused was tied with a piece of cloth and SHO has deposed that he was handcuffed. Lastly, it is submitted that the accused has been acquitted in the main case of snatching SMG from PC Mithal and prayed for acquittal of the accused.

9. Mr. Saleem Akhtar Buriro, learned Additional Prosecutor General did not support the judgment of the trial Court mainly on the ground that PC Mithal was the material witness from whom official SMG was snatched according to the prosecution case but said PC Mithal has not been examined before the trial Court. It is also argued by the learned Addl. P.G that it is the matter of record that neither case property was sealed at spot nor it was despatched to the ballistic expert.

10. We have carefully heard learned counsel for the parties and scanned the entire evidence. We have come to the conclusion that prosecution has failed to establish its case against the accused/appellant for the reasons that according to the prosecution case SMG rifle, the case property in this case was snatched by the appellant from PC Mithal of PS Mirpur Mathelo but neither said PC Mithal nor the record regarding snatching of SMG from PC Mithal were produced before the trial Court for the satisfaction of the Court. Despite contention of the defence counsel arrival and departure entries were not produced at trial which cut the roots of the prosecution case. It was very strange that after recovery of the SMG from the possession of the accused neither it was sealed at spot nor it was sent to ballistic expert in order to ascertain whether it was in working condition or not. There are also material contradictions in the evidence of prosecution witnesses. SHO had failed to disclose the places which he had patrolled before holding the nakabandi. According to the mashir, after arrest, accused was tied with a piece of cloth but SHO has deposed that he was handcuffed. There are also material contradictions with regard to material particulars of the case for which no plausible explanation has been furnished. Accused has raised defence plea that he has been involved in the case at the instance of his enemies. In these circumstances, it would be unsafe to rely upon the evidence of police officials without independent corroboration, which is lacking in this case. Learned Addl. P.G has pointed out that appellant has already been acquitted in the main case of snatching the SMG from PC Mithal.

11. In these circumstances, we hold that prosecution case was highly doubtful and prosecution evidence did not inspire confidence. Therefore, we extend benefit of doubt to the appellant. This appeal is, therefore, allowed. Impugned judgment passed by learned 2^nd Additional Sessions Judge/Special Judge, STA, Mirpur Mathelo at Ghotki is set aside. Appellant Abdul Jabbar alias Abdul Ghafoor is present on bail, his bail bond stand cancelled and surety is hereby discharged.

JUDGE

JUDGE

N.M.