SH. RIAZ AHMAD, J.--- The appellant was tried on the charge under section 13 of the Arms Ordinance by a Special Court constituted under the Suppression 'of Terrorist Activities Act, 1975.
Vide judgment dated 5th of May, 1991, the appellant was found guilty on the aforesaid charge, and was thus convicted and sentenced to seven years' R.I. And to pay fine of Rupees ten thousand, or in default thereof, to further undergo R.I. For six months.
2. Aggrieved by his conviction and sentences, the appellant has preferred this appeal, which shall be disposed of through this judgment.
3. With the assistance of the learned counsel for the appellant and the State, we have carefully gone through the entire record of the case, and have also heard the various contentions at length.
4. At the very outset, the perusal of the evidence clearly shows that the prosecution case is highly improbable; the mode and manner of recovery, and the arrest of the appellant cannot be believed.
The prosecution case precisely was, that on 24-9-1987 at about 2-30 a.m., the police party had conducted a raid at the Haveli of the appellant and found him sleeping on the roof of the Haveli alongwith the Klashnikov. According to Abdul Qayyum Foot Constable P.W:2, as soon as, the police party reached the aforesaid Haveli, on hearing the noise, the appellant awoke, and ran away; he was chased. According to this witness, he threw his Klashnikov near his Dera. It was further deposed by him, that after having chased the appellant for about 15 Karams, he was apprehended.
5. On the other hand, Muhammad Riaz Sub-Inspector P.W.3 stated that the appellant was not arrested, and was granted the bail before arrest by the learned Additional Sessions Judge, Lahore.
The Klashnikov alleged to have been taken into possession could not have been seen to be thrown by the appellant during the pitch-dark of the night, because it was 29th of Muharram, and thus there could be no light. However, he tried to prove by stating, that he had torch in his hand, whereas, P.W.2 did not depose anything as to the torch in the hands of the Sub-Inspector P.W:3 or the police party. Furthermore, recovery memo also takes bottom out of the prosecution case, because the recovery memo shows that the Klashnikov on the roof of the Haveli, whereas, according to the statements of eye-witnesses, it was thrown by the appellant. 8 All these discrepancies do not inspire confidence, and therefore, we have no option, but to accept this appeal by setting aside the conviction of the appellant. Accordingly, we direct that the appellant shall be released forthwith, if not required to be detained in any other case.
N.H.Q./M-513/L