RAJA AFRASIAB KHAN, J.-Amjad Ali son of Muhammad Bashir, caste Arain, resident of Karamabad, Tehsil Wazirabad, District Gujranwala was tried by the learned Judge Special Court for Suppression of Terrorists Activities, Gujranwala, under section 13 of the Arms Ordinance XX of 1965. On 3-7-1991, the learned trial Judge convicted him under the aforesaid charge and sentenced him to five years'
R.I. Plus a fine of Rs.20,000 or in default thereof to suffer further R.I. For one year. The convict has challenged his conviction and sentence by filing this appeal before this Court. It is being decided through this judgment.
2. Shortly stated the facts of the case are that Muhammad Latif S.H.O. P.W.2 was present at Haryawala Chowk alongwith Sajid Nazir A.S.I. P.W.1, Murid Hussain Shah A.S.I. (not produced) etc. On patrol duty fie received an information at about 10-00 p.m. On 29-1-1991 that five persons were present within the area of village Dheerkey near the G.T. Road with unlicensed weapons. The police party immediately reached the place. Five persons including the appellant were found present and were apprehended there and then by the raiding party. A Klashnikov P.1 alongwith 15 live cartridges P.2/1--15 were recovered from possession of the accused. The accused failed to produce any licence. The weapon and cartridges were taken into possession vide memo. Exh.PA. The recovery of these articles was attested by Sajid Nazir A.S.I. And Murid Hussain Shah, A.S.I.
3. The prosecution in order to prove its case produced Sajid Nazir A.S.I, P.W.1, Muhammad Latif S.H.O.
P.W.2 and Muhammad Arshad Head Constable P.W.3. The accused denied the allegations levelled against him by making a statement under section 342, Cr.P.C. He stated that he had been falsely implicated in the case at the instance of one Muhammad Shafi, his co-villager, who had long- standing enmity with him. He deposed that he was taken into custody by the police from his house.
However, no evidence was produced by the appellant in support of his plea.
4. Learned counsel contends forcefully that there is no evidence to connect the appellant with commission of the crime. He argues that no witness from public was produced to substantiate the allegation against the petitioner. The learned State counsel has half-heartedly supported the conviction and sentence of the appellant by adopting the reasons given by the learned trial Judge in his judgment.
5. We have heard learned counsel for the parties at some length and have read whole record carefully. We are of the view that the prosecution did not succeed to prove its case beyond reasonable doubt against the appellant. The prosecution case is that a Klashnikov P.1 and 15 live cartridges P.2/1-15 were recovered from the possession of the appellant in presence of Sajid Nazir A.S.I. P.W.1 and Murid Hussain Shah A.S.I. (not produced). Admittedly, no witness from public was produced to prove the recovery of Klashnikov and the cartridges from possession of the appellant.
On the given circumstances, it will not at all be safe to rely upon the evidence of police witnesses to convict the appellant especially when witnesses from public were available at the spot. It is evident that the alleged recovery was effected from a village quite close to G.T. Road and as 'sue h there was no dearth of public witnesses, who would have witnessed the recovery if they had been asked to do so. The prosecution was unable to explain as to why public witnesses were not joined to attest the recovery of the weapon. This fact would make the case of the prosecution doubtful. The testimony of the prosecution witnesses does not at all inspire confidence and as such it cannot be accepted for conviction of the appellant in this case. In the circumstances; there is no alternative but to accept the appeal. Consequently, the conviction and sentence of the appellant are set aside and he is acquitted by giving him the benefit of doubt. He shall be released forthwith provided of course he is not required in any other criminal case.
S.A./A-78/L