RUSTAM S. SIDHWA, J.-This is an appeal by Noor Muhammad appellant against his conviction under section 13(20)/65 of the Arms Ordinance by the judgment of the Additional Sessions Judge, Rawalpindi passed on 17-5-1976 sentencing the appellant to two years' rigorous imprisonment.
2. Briefly the prosecution case is as follows:
3. On 15-9-1973 at about 2 a.m. Fazal Hussain Shah Sub-Inspector P. W. 3 received secret information that Noor Muhammad appellant who was required in connection with the connected murder case as an accused was concealing himself in the area of village Banneya. Accordingly a raiding party consisting of the Sub-Inspector, Nawab Khan P. W. 1, Fazal Dad and others was formed which then hid themselves in the saroot plants near Kus Verala close to village Banneya to ambush the accused. Luckily, Noor Muhammad appellant and Sultan Khan accused passed by that place and were apprehended. On personal search Noor Muhammad appellant was found to possess a bandolier in which revolver P-I with 5 live bullets P-2/1-5 and 5 empties P-3/1-5 were present. The appellant did not 'possess any licence for keeping the same, whereupon the revolver, the live bullets and the empties were taken into possession vide memo. Exh. P. A., which was attested by Nawab Khan P. W. I and Fazal Dad P. W.
4. The appellant was challaned in respect of offences under sec--tion 13(20)/65 of the Arms.
Ordinance. The trial was held by the Additional Sessions Judge, Rawalpindi. The appellant denied the prosecution case, pleaded innocence and disclaimed the ownership of the revolver with the bullets and empties.
5. The prosecution produced Nawab Khan P. W. 1 and Fazal Hussain Shah Sub-Inspector P. W. 3 to prove the recovery and Muhammad Jameel Shah P. W. 2 to prove the drawing up of the formal F. I.
R. Exh. PB/I at Police Station. Chauntra.
6. The learned Additional Sessions Judge by his judgment dated 17-5-1976 found the appellant to be guilty of the offence charged and sentenced him as stated above.
7. The appellant has now appealed against his aforesaid conviction and sentence.
8. The recovery of the revolver P-1 with 5 live bullets, P. 2/1-5 and 5 empties P-3/1-5 in the bandolier, from the person of Noor Muhammad appellant has been deposed by Nawab Khan P. W. 1, duly supported by Fazal Hussain Shah Sub-Inspector P. W.
3. Nawab Khan P. W. 1 deposed that on 15-9- 1973 at about 2 a.m. He joined police party headed by Fazal Hussain Shah P. W. 3 which bid itself in the saroot plants in Kus Verala near village Banneya. After sometime Noor Muhammad appellant with Sultan co-accused who passed by that side were apprehended. On personal search Noor Muhammad appellant was found to have on his person the revolver P. I. In the bandolier along with 5 live bullets P-2/1-5 and 5 empties P. 3/1-5. Noor Muhammad appellant when asked, did not produce any licence. As such, the revolver, bandolier, bullets and empties were sealed into a parcel and taken into possession vide memo Exh. P. A. In cross-examination this witness admitted that he was lambardar of the village for the last three years and that he considered it his duty to work for others. He also admitted that somebody in the raiding party was carrying a lantern. He further admitted that he was an illiterate person, had affixed his signatures on certain papers which were prepared by the police and that he did not know what was written on these papers.
9. The story narrated by Nawab Khan P. W.
1. Was supported by Fazal Hussain Shah Sub-Inspector P.
W.
3. In cross-examination he submitted that he received secret information about the presence of the appellant in village Banneya at about evening time, when he was at a distance of about 6/7 miles from the place of their arrest.
10. We have gone through the evidence of these two witnesses with particular care and scrutiny and find ourselves unable to accept their testimony. In the first instance, Fazal Hussain Shah P. W. 3 stated that he received secret information about Noor Muhammad appellant on 15-9-1975 at about 2 a.m. But later in cross-examination he prevericated and stated it was about evening time when he was 6/7 miles away from village Banneya. Fazal Hussain Shah stated that Nawab P. W. 1 was not previously known to him, but it seems surprising that he was able to recruit his services after mid-night at 2-00 a.m. On 15-9-1973. According to Nawab Khan Lambardar's own admission, he stated that he joined the police party to apprehend the appellant. It is not understood that how he could have joined the party if he was an unknown person to Fazal Hussain Shah P. W.
3. From his admission in cross-examination where he admitted that he considered it his duty to work for others, he appears to be the usual stock type of police witness. Nawab Khan P. W. 1 had also admitted that somebody in the raiding party was carrying a lantern. This would be most improbable if the raiding party were intending to apprehend two culprits involved in a murder charge in the darkness of the night.
11. For all these reasons, the evidence of Nawab Khan P. W. 1 o Fazal Hussain Shah P. W. 3 does not inspire confidence.
12. In view of the above conviction and sentence of Noor Muhammad appellant is hereby set aside.
He shall be set at liberty if not wanted in any other case.