SH. RIAZ AHMAD, J.--- The appellant-was tried by a Special Court constituted under the Suppression of Terrorist Activities Act, 1975 on the charge under section 13-E of the Arms Ordinance.
Vide judgment, dated 30th of April, 1991, the learned trial Judge found the appellant guilty on the said charge, and thus convicted and sentenced him to undergo rigorous imprisonment for a term of three years, and to pay a fine of Rs. Five thousand, or in default of the payment of fine, to further suffer rigorous imprisonment for three months.
2. Aggrieved by his aforesaid conviction and sentences, the appellant has preferred this appeal, which shall be disposed of through this judgment.
3. The prosecution case in brief is that on 20th of April, 1988 Muhammad Akmal, S.I./S.H.O. Police Station Saddar Sialkot was present alongwith the other police officials at Ludhar Chowk in connection with Naka Bandi duty at 11 p.m., when the appellant came there from Hundel Chowk. On the sight of the police party, the appellant tried to slip away, but the police party apprehended him.
The appellant was having a stengun P.1, and the same was taken into possession alongwith 7 live cartridges P.2/1-7 vide memo. Exh.P.C. Attested by Bashir Ahmad Bhatti, S.I. And Imtiaz Ahmad an independent witness P.W.4. Accordingly, the appellant was arrested, and was sent to face his trial.
4. With the assistance of the learned counsel for the appellant and the State, we have perused the entire record, and we have also- heard both the learned counsel at length.
5. Recovery in this case was supported by Muhammad Akmal S.L/S.H.O. P.W.3 and Bashir Ahmad Bhatti P.W 2 a Sub-Inspector of the Police, while P.W.4 Imtiaz Ahmad an independent public witness refused to support the recovery, and was thus declared as hostile.
6. The record of this case also reveals that one Tariq Butt was required by police in connection with a theft case, and with a view to arrest him, P.W.3 S.I./S.H.O. Used to visit Gujranwala. It is further apt to mention that aforesaid Tariq Butt was also working with the appellant. P.W.3 S.I./S.H.O.
Approached the appellant many times either to produce Tariq Butt or to disclose his whereabouts, but the appellant did not cooperate with the police. Be that as it may, this appeal merits success on another ground as to whether the statement of the police official alone is sufficient to sustain the conviction in such like cases wherein recoveries of weapons and drugs are involved.
7. In this behalf, the learned counsel for the appellant has placed reliance upon the judgment of the Federal Shariat Court (Appellate Bench) Aftab Ahmad v. The State (decided on 16-2-1991). We have perused this judgment, and we, respectfully follow the same. It is high time, that in such like cases the criteria as laid down by the superior Courts be adhered to in letter and spirit. No doubt, the police officials are competent witnesses to prove the recovery, as has been laid down by the Supreme Court, and there is no cavil with the proposition, but in a case, like in hand, where a public witness who is made to join and attest the recovery alongwith a witness from a police does not or refuses to support the recovery, then it reflects upon the prosecution, if his statement is juxtaposed with the statement of the rest of the P.Ws. We are of the view that the prosecution must suffer in this case on account of the refusal of P.W.4 to support the recovery effected from the appellant.
Consequently, this appeal must succeed, therefore, we set aside the conviction and sentence of the appellant. He shall be released forthwith, if not required to be detained in any other case.
SA./M-3184/L