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Petitioner: ABDUL GHAFOOR VS Respondent: THE STATEIjaz Hussain Batalvi,Saleem Shad for the State.
1991 PCr
1991 PCr.LJ 2316
[Lahore]
Before Sardar Muhammad Dogar and Khalil-ur-Rehman Ramday, JJ
ABDUL GHAFOOR---Appellant
Versus
THE STATE---Respondent
Criminal Appeal No.455 of 1987, heard on 4th May, 1991.
West Pakistan Arms Ordinance (XX of 1965)---
----S. 13---Evidence, appreciation of---Public witness was brother of deceased in the connected murder case who was not a resident of locality---No resident of village was joined in recovery proceedings although Lamberdar and Councillor of village were residing there---Recovery of pistol was effected from a room which was without boundary wall and lock---Anybody other than accused could have excess to the room---Conviction thus was not sustainable---Accused was acquitted in circumstances.---[Recovery].
Ijaz Hussain Batalvi for Appellant.
Saleem Shad for the State.
Date of hearing: 4th May, 1991.
JUDGMENT
MUHAMMAD DOGAR J---- Abdul Ghafoor while being under arrest in the main murder case had led to the recovery of .12 bore pistol on 22-7-1986. As he could not produce the licence, a challan Arms Ordinance, 1965 was submitted against him.
2. He was tried by the Additional Sessions Judge, Multan Learned trial Judge vide judgment, dated 11-7-1987 convicted him under section 13 of the Arms Ordinance, 1965 and sentenced him to undergo R.I. for one year.
3. The convict has filed appeal.
4. Statements of Muhammad Ismail S.I. (P.W.1) and Muhammad Kabir (P.W.2) were recorded at the trial. No other witness was examined.
5. The appellant during his statement under section 342, Cr.P.C. denied the prosecution case and pleaded innocence.
6. Although both the witnesses stated that Abdul Ghafoor had led to the recovery of unlicensed pistol, yet the conviction of the appellant, in our view, is not sustainable as Muhammad Kabir the only witness examined from the public, was real brother of the deceased. He did not belong to the village wherefrom the recovery allegedly had been effected. No resident of the village was joined in the recovery proceedings Lumberdar and a Councillor of the village were residing there. Moreover, P.W. Muhammad Kabir admitted during cross-examination that the recovery was effected at the instance of the appellant from a room without boundary walls and the room was not locked at that time.
In the circumstances it cannot be assumed that none else than the appellant could have access to the room. Muhammad Ismail, S.I. did not mention at all that he was accompanied by Muhammad Kabir P.W. at the time of recovery. This appeal is, therefore, allowed and the appellant is acquitted.
SA./A-1322/L Appeal accepted.