' NAZIM HUSSAIN SIDDIQUI, J.--- Petitioner, Muhammad Parvaiz, has impugned the judgment dated 16-10-2002 of a learned Judge in Chambers, Lahore High Court, whereby Appeal No,1194 of 2001 preferred by him was dismissed.
2. The petitioner was tried in the case of F.I.R. No,14 of 2001 of Police Station Musa Khel by learned Additional Sessions Judge/Suppression of Terrorists Activities Court, Mianwali and as per judgment, dated 18-7-2001 was convicted and sentenced as follows:- "Under section 13 of the Pakistan Arms Ordinance, 1965 was sentenced to undergo three years' R.I.
With fine of Rs,5,000 or in default six months' R.I.
' Under section 4 of Explosive Substances Act, 1908 was sentenced to 7 years and ' Under section 5-A of said Act his property was forfeited in favor of the Government."
3. Being dissatisfied, he preferred appeal before High Court, which was dismissed by the judgment, which has been impugned in this petition.
4. Briefly stated the prosecution case is that on 28-1-2000 at about 3-00 p.m. In the house of Habib Ullah, situated in Chidru Chowk within the jurisdiction of Police Station Musa Khel, the petitioner was found in possession of a .12 bore gun, five live cartridges, a hand grenade and a mach box having the fuse of the grenade and the same were recovered by Muhammad Rafique S.-I./S.H.O. In presence of Azmat Ullah Khan, A.S.-I. And Fateh Khan, A.S.-I. On completion of investigation, the charge-sheet was submitted before trial Court and the petitioner was convicted and sentenced as stated earlier.
5. At trial, the prosecution examined Azmat Ullah Khan, A.S.-1., Muhammad Rafique S.-I and Mehr Khan as P.Ws. Mst. Ghulam Fatima, the mother of the petitioner was examined as D.W. The petitioner in his statement recorded under section 342, Cr.P.C. Denied the prosecutions' allegations and claimed to be innocent.
6. It was contended on behalf of the petitioner before High Court that he was falsely implicated in this case; that no private person was associated at the time of alleged recovery; that the statements of the prosecution's witnesses do not inspire confidence; that Fateh Khan A.S.-I. Who was a recovery witness was not examined; that petitioner's real brothers were locked up at Central Jail, Mianwali and he had gone there to see them where he was apprehended by the guard of Central Jail, Mianwali, who informed the police about his arrest and the police brought him and involved him in this case. All above contentions have been repeated before us.
7. We heard learned counsel for the parties and perused the record.
8. Azmat Ullah Khan, A.S.-I. P.W. In his cross-examination stated that he was posted at said police station about eight months prior to the occurrence. According to him, the petitioner was not known to him nor he had seen him earlier. He, however, admitted that Naimat Ullah and Aman Ullah, the brothers of the petitioner, were known to him. When he was asked if prior to said posting he was ever posted at said police station, he remained evasive by stating "I do not know". He also evaded to give reply of the question, 'if he ever had arrested the petitioner's mother from her house'. He also showed his ignorance that at the occasion of arrest of the petitioner's mother, the petitioner was also present there. He admitted that he had conducted the raids at the house of the petitioner so many times. He showed his ignorance if the petitioner was present out side the Central Jail, Mianwali, where he had gone to see his brothers along with his mother three days prior to the occurrence and was apprehended there by the guard of Central Jail. He specifically stated that S.H.O. Did not summon any private person to associate him in recovery proceedings. Likewise, Muhammad Rafique A.S.-I. On material question remained evasive in his cross-examination.
9. It is evident that no private person was associated in recovery proceedings, although so could be done very easily. The evidence of both above named police officials does not inspire confidence and is tainted with doubts. A Police Officer is supposed: o give entire facts and not to conceal them.
The reply of material questions in the words "I do not know", in fact, tantamounts to conceal the facts deliberately. It is very hard to believe that so many times the raids were made, at the house of the petitioner, yet, he was not known to the police officials, especially when his brothers and mother were well known to them. Recovery of above articles has not been proved satisfactorily.
10. Accordingly, the petition is converted into appeal and the same is allowed. The judgments of trial Court and High Court are set aside. The petitioner/appellant shall be released forthwith, if not required in any other case.