Ali Nawaz (Applicant) VS The State (Respondent)

ORDER SHEET

JUDGMENT

SHEET.

IN

THE HIGH COURT OF SINDH CIRCUIT COURT, HYDERABAD.

Cr.

Rev Appln. No. S-61 of 2006.

Date of hearing: 13.04.2009.

Date of Decision: 13.04.2009

Applicant : Ali Nawaz Gadhi through

Mr. Abdul Rasool Abbasi, Advocate.

Respondent : The State through

Mr. Anwar H. Ansari, State Counsel.

J U D G M E N T

MUHAMMAD

IQBAL MAHAR -J:- By this Revision application the applicant/convict has challenged judgment dated 10.5.2006 passed by learned Ist Civil Judge & Judicial Magistrate Dadu in case No. 138/2003 culminating from F.I.R No.56/2003 P.S Rukkan for offence punishable U/S 13(d) Arms Ordinance thereby he was convicted and sentenced to suffer R.I for one year and to pay fine of Rs.5000/- and in default of payment of fine, he was further ordered to undergo R.I for three months and Judgment dated 27.6.2006 passed by learned Sessions Judge Dadu in Criminal Appeal No.33 of 2006, whereby the judgment passed by learned Magistrate was maintained.

Precisely, the prosecution case is that on 11.7.2007 Complainant ASI Bukhshal Khan Khokhar along with his subordinate staff left Police Post Phulji Station for patrolling and conducting Nakabandi on a private vehicle as per Roznamcha Entry 18. After patrolling, the Police Party arranged Nakabandi at Allahabad Bus Stop. At about 0430 hours one person appeared there. The Police party asked him to stop, but he started running away. The Police party apprehended him and on inquiry he disclosed his name to be Allah Nawaz Gadhi. The Police party during his personal search recovered one 32 bore Revolver loaded with four live bullets from the fold of his shalwar. The accused could not produce valid license of the Revolver, therefore, Complainant prepared mashirnama of arrest and recovery in presence of H.C Qurban Ali and P.C Nooruddin and brought the Applicant/accused and recovered property at Police Station where he registered the F.I.R.

The Police after completing investigation challaned the case before the Court of Learned Ist Civil Judge & Judicial Magistrate Dadu.

The Police papers were supplied to the Applicant/accused and charge was framed but the Applicant denied the charge and claimed trial of the case.

The prosecution in order to prove its case examined P.W-I Complainant ASI Bukhshal Khan, who produced mashirnama of arrest and recovery and F.I.R, P.W-2 H.C Qurban Ali, the mashir of arrest and recovery. Thereafter, the prosecution closed its side, the statement of Applicant/accused was recorded and on the basis of evidence of P.Ws, the trial Court convicted the Applicant/accused in the manner as stated above.

The Applicant/accused challenged the conviction by preferring appeal before the Court of learned Sessions Judge Dadu but learned Sessions Judge maintained the conviction awarded by the trial Court.

Learned Counsel for Applicant/accused contends that there are material contradictions in the depositions of prosecution witnesses, which have not been considered by both the courts below. He further submits that Police party had proceeded to arrange Nakabandi as per Entry No.18 of Police Post Phulji station, but this vital document has not been produced by the Complainant at the time of his evidence, which creates doubt regarding departure of the Police party from the Police Post. He further submits that it is alleged by the prosecution that a Revolver of 32 bore and four live bullets of same bore were recovered from the possession of Applicant/accused but neither the same were sealed at the spot and nor were sent to the Ballistic Expert for its verification, therefore, he prayed for setting aside the impugned judgments passed by both the Courts below. In support of his contention, learned Counsel relied upon 2002 P.Cr.L.J 51 and 2002 P.Cr.L.J 450.

Learned Counsel appearing for the State does not support the impugned judgments.

I

have given due consideration to the arguments of the learned Counsel for respective parties and perused the record.

A

perusal of record shows that there are material contradictions in between the depositions of two prosecution witnesses. The complainant ASI Bukhshal Khan has stated that the applicant/accused was arrested at 0430 hours when he while crossing Railway Track came at the road but mashir Qurban Ali stated that when Police party reached at Allahabad Bus Stop at 0300 hours they apprehended the Applicant/accused. The depositions of both the witnesses contradict each other on time of arrest of the Applicant/accused and place of the arrest, which point has not been considered by the Courts below. Further more it is an admitted position that neither Roznamcha Entry regarding departure of Police party was produced before the trial Court nor the property, allegedly recovered from the possession of Applicant/accused, was sealed and sent to the Ballistic Expert for its report.

The learned Division Bench of this Court in the case of Abdul Sattar and others Versus the Station (2002 P.Cr.L.J 51) has held as under:- “(b) ----Entry in Roznamcha---Non-production of entry in Roznamcha by the prosecution in Court to prove the movement of Police from the Police station to the place of recovery of weapons cuts at the root of the prosecution case making the entire episode doubtful and the prosecution version unbelievable.

(c)Non-sealing of recovered weapons on the spot---Effect---Conviction under S.13(d) of the Arms Ordinance, 1965, cannot be maintained unless the weapons allegedly recovered were sealed on the spot and the opinion of the Forensic/Ballistic Expert is produced on record to prove that the same were in functioning order. “

The above view is also followed by another Division Bench of this Court in the case of Ashiq Ali Vs. The State (2002 P.Cr.L.J 450).

After considering the material available on the record, I am of the considered view that the prosecution has failed to prove the case against the appellant beyond any reasonable doubt, therefore, the appellant is entitled for benefit of doubt.

In view of above circumstances and the case law relied upon by the learned Counsel for Applicant/accused, I find no substance in the judgments of both the Courts below, therefore, I allow this Revision Application and set aside the impugned judgments of both the courts below and while extending benefit of doubt acquit the Applicant/accused from the charge.

Disposed of.

JUDGE

Ali Haider/P.A