SAJJAD AHMED SIPRA, J.--- The present criminal appeal is preferred against the judgment dated 17-10-1990, whereby Fakhar-ud-Din Siddiqui, Special Judge/Presiding Officer, Special Court constituted and; Suppression of Terrorist Activities (Special Courts) Act, 1975, Bahawalpur Division, Bahawalpur, convicted the appellant, 'Muhammad Shafique, under section 13 of the West Pakistan Arms Ordinance, 1965 and sentenced him to 7 years' rigorous imprisonment and a fine of Rs.70,000 or in default thereof to undergo further rigorous imprisonment for two years.
2. The brief facts leading to the present appeal are that an F.I.R. No.16/89 (Exh.PA./1) was registered on 26-1-1989, at Police Station Saddar Sadiqabad, District Rahimyar Khan, by P.W.1, Riaz Ahmad, Head Constable, on the receipt of the complaint (Exh.P.A.) sent by P.W.3, Muhammad Sadiq, Inspector Anti-Dacoity Staff, who had prepared the said complaint (Exh.P.A.) and sent it to the said police station for the registration of a case:
3. According to the F.I.R., the appellant, Muhammad Shafique, had disclosed during the investigation of a case registered under-section 392/397, Pakistan Penal Code, vide F.I.R. No.292/R8 at Police Station Saddar Sadiqabad, that, he can lead to the recovery of a sten gun, which he had buried in a Field and that thereafter he had led the said P.W.3, Muhammad Sadiq, Inspector, alongwith witnesses to the field of wheat crop situated behind the shop of Ghulam Muhammad Cycle Works, near the bridge of Giri Canal at Chak No.145/P, and got effected the recovery of sten gun P.1 from there. P.W.3, Muhammad Sadiq, Inspector, had prepared the recovery memo. (Exh.P.B.) in respect thereof. The said memo (Exh.P.B.) was duly signed by him and attested by P.W.2, Ishtiaq Ahmad, Constable, and one Allahditta (given up as won over). The said P.W.3 had prepared the site plan of the place of recovery (Exh.P.C.) and had recorded the statements of the witnesses under section 161, Cr.P.C.
4. To prove its case, the prosecution had produced three witnesses. P.W.1 had deposed to the effect that he had registered the F.I.R. (Exh.P.A./l) on the receipt of the complaint (Exh.P.A.) and had signed the same. Whereas, P.W.2, Ishtiaq Ahmad, had supported the prosecution version of the recovery of sten gun (Exh:P.1) as stated earlier and acknowledged having signed the recovery memo. (Exh.P.B.).
The last witness, P.W.3, Muhammad Sadiq, Inspector, had deposed in support of the version stated in the F.I.R. (Exh.P.A./1) and having prepared the complaint (Exh.P.A.) and the site plan of the place of recovery (Exh.P.C.), and both the exhibits having been duly signed by him. He has further stated that he had investigated the case, recorded the statements of the witnesses under section 161, Cr.P.C. And submitted the challan in the Court.
5. The appellant had pleaded not guilty to the charge framed against him. After evidence of the prosecution was recorded, as stated above, -the appellant was examined under section 342, Cr.P.C. In his statement under section 342, Cr.P.C. He denied the factum of recovery, as alleged, and had further stated that the police had created a false case against him and that the P.Ws. Had deposed against him at the instance of the police. Further, stated that he shall produce defence evidence and shall appear as a witness in his own defence.
6. D.W.1 Khalid Hashmat, D.W.2 Ali Muhammad and the appellant Muhammad Shafiq himself had appeared as defence witnesses. Exh.D.1 to Exh.D.7 had been submitted by the appellant in the Court.
7. We have heard the learned counsel for the appellant and the State at length and perused the record with their assistance.
8. The learned counsel for the appellant assailed the legality and propriety of the judgment by pointing out that the charge was defective, as no date, time and place of the alleged recovery of the sten gun (Exh.P.1) had been mentioned therein. Further, submitted that it was not stated in the charge that Exh.P.1 was unlicensed and in this respect further pointed out that the offence as alleged is only made out if the recovered gun is unlicensed. Further, contended that the impugned judgment is liable to be set aside as no question about the date, time and place of the alleged recovery and in respect of the non-production of licence had been put to the appellant under section 342, Cr.P.C. Further submitted that the impugned judgment itself fails to refer to the allegedly recovered stop gun being unlicensed; and that, in fact, the said judgment is based on extraneous considerations and in this respect referred to para. No.6 thereof in particular, which is to the effect that the appellant had indulged in many criminal cases, and that the judgment tendered by him in defence evidence does not prove his innocence despite his acquittal under section 265- A, Cr.P.C. In those cases. It further irrelevantly referred to the non-existing factum of motive. The learned counsel for the appellant further submitted that, in any case, there was no independent witness of the alleged recovery.
'
9. The contentions raised on behalf of the appellant have lot of force. As pointed out, the charge as framed is defective as it does not disclose the date, time and place of the alleged recovery of the sten gun (Exh.P.1), and that nor does it state that the recovered weapon was, without licence, and the trial further suffers from incurable infirmity as the question in respect of the date, time and place of the alleged recovery and the same being an unlicensed sten gun was not put to the appellant while being examined under the provisions of A section 342, Cr.P.C. The said defects, not being curable, vitiate the trial of the appellant. It also has been taken notice of that in the impugned judgment the trial Court has nowhere reached a finding that the appellant did not have a valid licence for the sten gun (Exh.P.1) recovered from him, rather the said judgment deals with the questions that are extraneous to the case. Therefore, we are of the view that the learned trial Court had failed to apply its conscious mind while pronouncing the impugned judgment and consequently it is no judgment in the eye of law.
10. The learned counsel for the State made no attempt to support the impugned judgment and only contended that while setting aside the conviction and sentence of the appellant, the case may be remanded for fresh trial in accordance with law.
11. However, as pointed out by the learned counsel for the appellant, the appellant is in jail since the date of registration of the case herein i.e. Since 26-1-1989. The period of detention of the appellant thus comes to almost two years and ten months. Therefore, to remand the case for retrial shall cause unjustifiable hardship to the appellant having already suffered imprisonment as stated above.
12. In pursuance to the above discussion, we allow this appeal, set aside the impugned judgment and acquit the appellant of the offence charged. He shall be released forthwith, if not required to be detained in any other case.
N.H.Q./M-415/L