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Petitioner: SHAUKAT ALI VS Respondent: THE STATEHonorable Justice Ahmad Saeed Awan
1994 P Cr
1994 P Cr. L J 2527
[Lahore]
Before Ahmad Saeed Awan,
SHAUKAT ALI ---Appellant
Versus
THE STATE---Respondent
Criminal Appeal No.545 of 1992, heard on 15th September, 1994.
Surrender of Illicit Arms Act (XXI of 1991)---
----S. 7(1)(c)---Appreciation of evidence---Recovery having been effected from a very thickly populated area in a day time, it was necessary for the prosecution to have joined public witnesses under S.103, CI.P.C. to witness the same-- Evidence of Investigating Officer who at the same time had also acted as head of the raiding party, recovery witness as well as the complainant had cast serious doubt upon the veracity of the prosecution case---Even otherwise failure on the part of prosecution to prove that the pistol and the cartridges recovered from the accused were the same which he had in his possession and had failed to surrender on pr before the date specified by the Government for surrender of illicit arms, was by itself sufficient to set aside his conviction and sentence which was a condition precedent for conviction---Accused was acquitted in circumstances.
Nasrullah Khan v. The State 1992 P Cr. L J 324 ref.
Iqbal Hameed-ur-Rehman for Appellant.
Arshad Ahmad for the State.
Date of hearing: 15th September, 1994.
JUDGMENT
Shaukat Ali son of Muhammad Hayat appellant was tried by the learned Additional Sessions Judge, Faisalabad for having been found in possession of an unlicensed .30 bore semi-automatic Pistol alongwith 18 cartridges of .30 bore during raid on 20-9-1991 on the information of one accused Yousaf alias Bala who was already in police custody; Shaukat Ali appellant was apprehended by Khalid Mahmood, S.I. P.W.4 Police Station Batala Colony, Faisalabad. On the conclusion of trial, he vide judgment, dated 18-6-1992 was convicted under section 7(1)(c) of the Surrender of Illicit Arms Act, 1991 and sentenced to seven years' R.I.
2. The prosecution examined four P.Ws. in support of its case. Irfan Ullah Khan, Moharrar Head Constable appeared as P.W.1 w11o verified that on receipt of complaint Exh.PA., he had formally recorded F.I.R. Exh.PA./1. Inayat Ullah Khan, A.S.I. P.W.2, Ghulam Habib, Constable P.W.3 and Khalid Mehmood S.I. P.W.4 fully supported the prosecution version.
3. The learned counsel for the appellant vehemently contended that the prosecution has failed to prove its case beyond reasonable doubt against the appellant inasmuch as the recovery witnesses consist of only police officials and that no witness from police was produced to prove the recovery, although the raiding party was definitely in position to involve public witnesses as the raid was made during day time in a very thickly populated area of Batala Colony. Khalid Mehmood, S.I. P.W.4 was at the same time head of raiding party, complainant of the case, recovery eye-witness of pistol and cartridges 'and Investigating Officer of the case; hence testimony of police witnesses was not confidence inspiring. The learned counsel lastly agitated that section 7(c) of Surrender of Illicit Arms Act (XXI of 1991) was not attracted as the prosecution failed to prove that the pistol and cartridges recovered from the appellant's possession were the same which he had in possession and had failed to surrender on or before 31-7-1991, the date specified by the Government for the surrender of illicit arms which was a condition precedent for conviction.
4. The learned counsel for the State supported the prosecution version and relied upon Nasrullah Khan v. The State 1992 P Cr. L J 324 in which their Lordships upheld the conviction of the accused by relying on the statements of recovery witnesses who were from the police.
5. I have heard the learned counsel for the parties at some length and have examined the record with their able assistance. I am of the view that recovery was effected from a very thickly populated area in a day time; therefore, it was necessary for the prosecution to have joined public witnesses under section 103, Cr.P.C. to witness the alleged recovery of .12 bore pistol and cartridges from the appellant's possession. The evidence of Khalid Mehmood S.I. P.W.2 at a time as head of raiding party, recovery witness, complainant as well as Investigating Officer, under the circumstances cast serious doubt upon A the veracity of prosecution case. Keeping aside other facts of the case, the appeal can be accepted on the sole ground that the prosecution failed to prove that the pistol and cartridges recovered front the possession of the appellant were the same which he had in possession and had failed to surrender on or before 31-7-1991, the date specified by the Government for the surrender of illicit arms which was condition precedent for conviction. Consequently, I have no option but to allow this appeal, set aside the conviction and sentence of the appellant and acquit him.
N.H.Q./S-521/L Appeal allowed.