Shah Din alias Shahya, petitioner, was tried by Summary Military Court No.36, Lahore, for an offence under Martial Law Regulation No.8. It was alleged that he was having in his possession an unlicensed .12 bore gun which was recovered on 29th July, 1978 at 6 p.m. From Old Ice Factory at his instance. The said Summary Military Court convicted him vide its order, dated 8th March, 1979 and sentenced him to 1 year's R.I. The case property was ordered to be confiscated to the State.
Petitioner has assailed his conviction and sentence by means of this writ petition. This judgment will dispose of the same.
2. The petitioner when examined denied the allegation against him. He stated that he had been involved in the case falsely due to enmity of Amir Din party who is a close friend of Shafqaat Ahmad S.H.O. Tibbi. He produced two witnesses in his defence. Taj Din, D.W.1, stated that nothing was recovered at the instance of the petitioner from the Old Ice Factory. Abdul Ghafur, D.W. 2, also made a statement to the same effect.
3. Ghulam Asghar, A.S.I., P.W.1, stated that he interrogated the petitioner on 29th July, 1978. He led him to Old Ice Factory where the petitioner dug out .12 bore gun which was taken into possession by him vide recovery memo. Exhibit-M which was attested by Muhammad Asghar A.S.I. And Nazar Hussain A.S.I. Besides himself. This witness admitted in cross-examination that no public witness was present at the time of the recovery of the alleged weapon from the Old Ice Factory. He also admitted that there was no building over the roof the wall in the Old Ice Factory from where the weapon was recovered.
Nazar Hussain A.S.I., P.W.2, supported Ghulam Asghar, P.W.1, in all its material aspect.
Shafqaat Ahmad, S.H.O., P.W.3, arrested the petitioner and investigated the case.
4. Record of the case was produced by Mr. Khalilur Rehman's Ramdey, learned Assistant Advocate- General, and the same had been perused with the help of the learned counsel for the parties and arguments heard.
5. The recovery of the unlicensed weapon is alleged to have been effected from a site known as Old Ice Factory building. There is nothing on the record to indicate that this building was in the possession of, not to speak of exclusive possession of the petitioner. The mere fact that a person points out a place where a weapon is concealed, if that place is not his own, would not justify the Court in drawing the conclusion that the person who pointed out the article had retained it, nor does the mere knowledge of the place of concealment would necessarily lead to the conclusion that the person having such knowledge participated in the act of concealment. Reliance in this regard is placed upon Atta-ur-Rehman's v. President, Summary Military Court 1980 P Cr. L J 832.
Moreover, recovery of the weapon is sought to be proved by an A.S.I. Another police officer who accompanied him. These persons are interested in the conviction of the accused /petitioner. No public witness has come forth to support this recovery. This recovery is brushed aside as ungenuine. Reliance in this regard is placed upon Pehlwan etc. v. State 1975 P Cr. L J 109.
6. In view of the above discussion, I hold that this is a case of no evidence. The conviction and sentence of the petitioner is set aside. He is set at liberty forthwith unless he is wanted in some other criminal case.
7. This Writ Petition is accepted.
There would be no order as to costs.