JUDGMENT RIAZ AHMAD, J.-Appellant Muhammad Sarwar son of Sultan Ahmad was tried by a Special Court constituted under the Suppression of Terrorist Activities Act at Gujranwala under section 13 of the Arms Ordinance, 1965, and was sentenced to undergo rigorous imprisonment for three years, and to pay a fine of Rs.Five thousand, or in default thereof to further undergo rigorous imprisonment for a term of three months, vide judgment dated 6th of April, 1991.
2. Aggrieved by his aforesaid conviction and sentences, the appellant has preferred this appeal, which shall be disposed of through this judgment.
3. The facts in brief giving rise to the prosecution of the appellant are that on 18th of January, 1991 Muhammad Akram ASI PW3 was present at village Kanden Sian alongwith Nazir Ahmad Head Constable PW2 and other police officials in connection with patrol duty; when at about 11.30 a.m.
Muhammad Akram ASI received the information, that a person having a Kalashnikov was present at the bus stop Padey Wala. On the receipt of this information, Muhammad Akram ASI PW 3 alongwith the police party reached the aforesaid place, and found the appellant standing at the bus-stop. The informer then signalled towards the appellant, and thus, the police party apprehended the appellant, who disclosed his name as Muhammad Sarwar. Thus, the police recovered Kalashnikov PI fitted with two magazines P2 and P3 containing 54 live cartridges P4/1-54.
All these articles were taken into possession by Muhammad Akram ASI PW3, vide Memo.Exh.PC attested by Nazir Ahmad Head Constable PW2 and Liaqat Ali Head Constable (not produced).
Thereafter, the ASI PW3 drafted the complaint Exh.PB, and sent the same to the Police Station Bambanwala through Muhammad Iqbal Constable for the registration of formal FIR.Subsequent thereto, the appellant was sent to face his trial before the said court, and was convicted as stated above. At the trial the appellant was also charged under section 9 of the Arms Ordinance.
4. To support its case, the prosecution placed reliance upon three witnesses, namely, Muhammad Nawaz Head Constable PW1, who recorded the formal FIR Exh.PA on the basis of the complaint sent to the Police Station Exh.PB.PWs 2 and 3 .Respectively supported the recovery of the illicit arm from the appellant.
5. The trial court also summoned Sheikh Abdul Rashid Fire Arm Expert as a Court witness, who deposed that it was 7.62 mm bore rifle and is automatic in nature, and is known as Kalashnikov.
6. With the assistance of the learned counsel for the appellant and the State, we have carefully perused the entire evidence on the record, and have heard the learned counsel at length. One feature of the case is intriguing to which proper attention was not paid by the trial court, nor it was assessed and appraised in its true perspective. Nazir Ahmad Head Constable PW2 in his cross- examination admitted that one Mehmood Ahmad son of Sabir Hussain had filed a complaint against him and the SHO Bambanwala before the DIG of Police, Gujranwala Range alleging therein that Nazir Ahmad Head Constable had received some illegal gratification, but denied the suggestion that the appellant was helping the aforesaid Mehmood Ahmad to pursue the said application. The defence version proceeds on this basis, and in his examination under section 342 Cr.P.C, as well as under section 340(2) Cr.P.C., the appellant was consistent to state, that he was falsely implicated on account of enmity and grudge with the police. According to the appellant since he was pursuing the application filed by Mehmood Ahmad against Nazir Ahmad HC PW 2 therefore, because of this motive, he had been falsely involved in the instant case. He further stated that he was arrested from the village, and the illicit arm had been planted upon him subsequently.
To substantiate his plea, 'the appellant examined in his defence Mehmood Ahmad DW1, Muhammad Arif DW2 and Riaz Ahmad DW3. DW1 Mehmood Ahmad stated that Nazir Ahmad HC PW2 arrested his father Sabir Hussain whereupon, DW1 took the appellant to the Police Station, and Nazir Ahmad HC PW2 released Sabir Hussain after receiving Rs.5500/-. DW1 stated that the appellant had remarked that this was a sheer extortion by the police. Thereafter,DW1 further stated that on another occasion one Haji Khuda Bux was also taken to the Police Station, and Nazir Ahmad HC PW2 had threatened the appellant of the dire consequences.
8. DW-2 Muhammad ^.Rif stated that he was running a Khokha at the bus-stop Padey Wala for the last two years and the appellant was not arrested from there.
9. DW-3 Riaz Ahmad stated that the police in plain clothes arrested the appellant from his Dera. He deposed that no such occurrence had taken place at the bus-stop.
10. After careful consideration of all the circumstances, facts and evidence on the record, we are of the view that the prosecution case regardless of the defence version is improbable. It is astonishing to note that at 11.30 am, the police party receives the information through an informer that the appellant was standing alongwith Kalashnikov at the bus-stop. We are not prepared to believe that in a daylight at such a busy place the appellant would be standing with an arm like Kalashnikov, this act is against the human conduct. If at all one has the illicit arm like Kalashnikov, he would try to conceal it rather to exhibit the same, and would not take a risk to invite the trouble for him. Evidence further reveals that within 15 minutes, the police party reaches the bus-stop, where, the informer pointed out towards the appellant. The learned trial judge in a mechanical manner proceeded to convict the appellant without appraising the evidence as required by law.
The judgment impugned indicates, that no attempt had been made to probe deeper into the case, and no efforts were made to juxtapose both the defence and the prosecution versions. No doubt, that section 103 Cr.P.C., would be squarely applicable in this case, but at a bus-stop, if at all the recovery had taken place, it was incumbent upon the Investigating Officer to at least associate some witnesses from the public. Not having done so, the case of the prosecution becomes doubtful The judgment impugned proceeds on the basis of evidence adduced by the ASI and Head Constable whose credibility is not above board. Nazir Ahmad Head Constable PW2 had a shaddy character, and we would not hesitate to observe that in rural areas, people are made subject of one's vengeance. Overwhelming evidence exists on record which also rings true that the appellant was helping Mehmood Ahmad DW1 in pursuing the application against Nazir Ahmad Head Constable PW2. The reasons advanced by the learned tried judge for discarding the defence plea are strange. The learned Judge observed that if at all, the factum of moving the application by Mehmood Ahmad against Nazir Ahmad Head Constable PW2 was true, then Mehmood Ahmad would have been the real target, and not the appellant. This reasoning is fallacious, because, if Mehmood Ahmed was involved, then direct enmity would stand established, therefore, it would have been easier to involve his associate.
11. For the foregoing reasons, we cannot maintain and uphold the conviction of the appellant as recorded by the trial court, but instead thereof, we set aside the same. Consequently the conviction and sehtences of the appellant are set aside, he is acquitted of the charge. He shall be released forthwith if not required to be detained in any other case. In the terms noted above, the appeal is allowed.