1. JUDGMENT MRS. SYEDA TAHIRA SAFDAR, J.---The appellant has preferred instant appeal feeling aggrieved of judgment dated 29-2-2008 of Special Judge, Anti-Terrorism Court-II, Quetta, whereby he has been found guilty for the offence under section 9 of Arms Ordinance, 1965, while convicted under section 13(e) of Arms Ordinance, 1965 to suffer rigorous imprisonmnent for a period of three years with fine of Rs.10,000, in default thereof further suffer imprisonment for six months. It is his contention that in absence of recovery of fire-arms from his possession the possible inference is that magazine/cartridges were planted on the appellant. Further, the trial Court made an error while referring to the record of other case, which was separately tried. He prayed for setting aside of the impugned judgment and his acquittal of the charge.
2. As per record F.I.R. No.16 of 2007 Police Station Bostan District Pishin was lodged on report about recovery of one loaded magazine of Kalashnikov having 30 live cartridges from pocket ( 'i ) of Shalwar wearing by the appellant/accused, during investigation of case pertaining to F.I.R. No.15 of 2007. After Registration of F.I.R. And on completion of investigation the case was challaned, charge was framed on 8-12-2007, on denial by the appellant/accused, evidence was called. On completion of trial finding him guilty of the offence the appellant was sentenced to suffer rigorous imprisonment for three years with fine of Rs.10,000. Being aggrieved of the same instant appeal has been filed on mentioned grounds.
3. Learned counsel for the parties are heard, while record is perused. As per record F.I.R. No.16 of 2007 was lodged on report of Abdul Salam IP/S.H.O., who appeared as P.W.1 and got recorded his statement. As per same during course of investigation in case F.I.R. No.15 of 2007, on conducting body search of the accused/ appellant right side pocket ( ) of Shalwar wearing by him , a loaded magazine of Kalashnikov was recovered, on unloading 30 live cartridges were recovered, the accused failed to produce any license or permit for the same, whereupon the recovered articles were taken into custody. Present case was registered, while Ibrahim S.-I. Was appointed as Investigation Officer. P.W.2 Muhammad Rafique is though witness of the occasion, but he recorded his statement as witness of memo. Of recovery Exh.P/2-A prepared in respect of handing over of copy of memo. Of recovery of magazine, live cartridges and statements of witnesses of said memo of recovery. P.W.3 Amir Muhammad S.-I. Who is also witness of the occasion deposed that on 6-11- 2007 on receiving information by S.H.O. Abdul Salam about abduction of two girls by one person Aurangzeb, who are kept in garden, whereupon they along with police personnel in supervision of D.S.P. Ghulam Nabi reached at the site. On conducting search from clothes of accused Aurangzeb one magazine with 30 live cartridges of Kalashnikov were recovered, whereupon memo. Of recovery was prepared and he signed it as witness. P.W.4 Muhammad Ibrahim, Investigating Officer, deposed that on 6-11-2007 the written report {{URDU TEXT}}(-1,-% ) was sent through Essa Jan driver by S.H.O. Abdul Salam, after registration of F.I.R. And on his appointment as Investigating Officer he reached at the site, whereupon Abdul Salam S.H.O. Handed over memo. Of recovery of recovered ammunition and statements of witnesses to him, which was taken into custody, the accused was arrested in present case and recorded statements of witnesses.
4. From whole set of evidence it is apparent that recovery was made in respect of case bearing F.I.R.
5. No.15 of 2007, due to non production of license or permit present case has been filed. Thus at the first instance the prosecution is required to establish the recovery of loaded magazine of Kalashnikov with 30 live cartridges from possession of the appellant/accused, whereafter, question of production of legal license or permit for keeping them in possession arises. The appellant has completely denied the charge. P.W.1 Abdul Salam S.H.O. Is the person, who effected the alleged recovery from the appellant. He described time of recovery as 3:45 p.m. Whereafter the written report Exh.P/1-B was sent through Hussain driver to Thana without any delay. But contrary to the same as per contents of Exh.P/1-B the time of incident is mentioned as 5:30 p.m. And time of report is 5:55 p.m. P.W.3 Amir Muhammad, also witness of occasion, deposed that they reached at the site nearly four or five O'clock in the evening. While P.W.3 deposed about holding of proceedings at 6- 20 p.m. P.W.4 Muhammad Ibrahim S.-I., Investigating Officer deposed that he reached at the site at 6-10 p.m. The difference of time is apparent from their statements and Exh.P/1-B that too without any explanation. Further, as per P.W.1 Abdul Salam he sent Exh.P/1-B through driver namely Hussain.
6. But in Exh.P/1-B the name of driver is mentioned as Essa Jan.
7. Apart from the same it is to be noted that only one magazine loaded with 30 live cartridges of Kalashnikov were alleged to be recovered from possession of the accused/appellant, but there is nothing on record about recovery of Kalashnikov from possession of the appellant/accused either at the site or thereafter. It is further B to be noted that as per Investigating Officer P.W.4, no independent investigation was made in present case by him. He only recorded statements of two witnesses of seizure memo Exh.P/2-A, whereby he had taken into custody the statements of two witnesses and recovery memo. Of magazine Exh.P/1-A, that too carbon copy of the original memo.
8. The perusal of Exh.P/1-A reveals that the witness No.2 namely Faisal Ahmed son of Maqbool Ahmed, his residence is shown as Kasi Killa, Quetta. The witnesses of the occasion i.e. P.W.1 to P.W.3 did not disclose presence of any private person at the occasion, rather as per P.W.3 the S.H.O. Did not call any private witness from the nearby area. This witness namely Faisal Ahmed has not been produced before the court. Furthermore, the prosecution has failed to assign any reason about presence of said witness at site at time of incident, as he was not resident of the area.
9. The contradiction as pointed out and the other facts as mentioned hereinabove create reasonable doubt in recovery of ammunition from possession of the appellant. The trial Court has not properly assessed the material and evidence present on record and arrived to a conclusion which is not in accordance with the facts and circumstances of the case. The Investigating Officer of instant case failed to make independent investigation, which he was required to do. Only taking into custody of seizure memo. And statements of witnesses made and recorded in other case are not enough. As the prosecution has failed to establish the recovery of magazine and live cartridges from possession of the appellant, therefore, the question of production of license and permit does not arise.
10. Keeping in view the above discussion the appeal is hereby accepted. The impugned judgment dated 29-2-2008 of Special Judge, Anti-Terrorism Court-II, Quetta is hereby set aside. Appellant Aurangzeb son of Salahuddin is acquitted of the charge, while conviction awarded under section 13(e) of Pakistan Arms Ordinance, 1965 pertaining to F.I.R. No.16 of 2007 Police Station Bostan through judgment dated 29-2-2008 by Special Judge, Anti Terrorism Court-II, Quetta is hereby set aside. He be released at once, if not required in any other case.