RAJA AFRASIAB KHAN, J.--- Muhammad Sohail son of Muhammad Ikram, caste Kashmiri, resident of Mauza Kotli Moharan, Tehsil and District Gujranwala, was convicted on 13-5-1991 by the learned Judge Special Court (Suppression of Terrorists Activities) Gujranwala Division, .Gujranwala, under section 13 of the Arms Ordinance, 1965 and sentenced to three years' R:I. Plus a fine of Rs.5,000 or in default thereof to suffer further R.I. For one year. Benefit of section 382-B, Cr.P.C. Was also given to the convict. The convict/appellant has challenged his conviction and sentence by filing this appeal before this Court. The appeal shall be disposed of by this judgment.
2. Shortly stated, the facts of the case are that- on 15-1-1991 at about 11 a.m. a police party, in order to effect the arrest of proclaimed offenders raided the house of Muhammad Safdar in village Madrianwala. The police party found the appellant in possession of a Klashnikov fitted with a magazine. Four spare magazines and 400 live cartridges in the house of Muhammad Safdar. The appellant failed to produce any licence to keep the aforesaid articles with him. The Klashnikov and the bullets were taken into possession vide memo. Exh.PA. The recovery was attested by Muhammad Rafi, A.S.I. And Nabi Ahmad, A.S.I. A complaint was sent to the police station 'through Abdul Aziz Constable for registration of a case. The formal F.I.R. Exh.P.B. Was recorded by Imtiaz Ahmad Head Constable.
3. The prosecution in order to prove its case against the appellant produced Muhammad Rafi A.S.I.
P.W.1, Ejad Hussain A.S.I. P.W.2 and Imtiaz Ahmad Head Constable P.W.3. The allegations were specifically denied by the appellant in his statement under section 342, Cr.P.C. He stated that he was falsely implicated in the case. He also made a statement on oath under section 340(2), Cr.P.C.
He produced Muhammad Abdullah D.W.1 in support of his plea.
4. It is contended by the learned counsel with vehemence that there is not an iota of evidence to connect the appellant with commission of the crime. He submits that no witness from public was produced by the prosecution to prove the recovery although it was in a position to do so. The learned State counsel defended 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 considerable length and have read the whole record with utmost care. The prosecution has failed to produce trustworthy and independent witnesses in support of its plea. All the witnesses are police officials. The police party did not ask the Headman or the Chowkidar of the village to witness the recovery of weapon and ammunition from the possession of the appellant. This was not done by the police for unknown reasons. It is in the evidence that the appellant was arrested from the Dera of Safdar where he was sitting at the time of raid. The prosecution for evidence is lot acceptable to us because it is not independent and reliable on the face of it. It is also evident that mandatory provisions of section 103, Cr.P.C. Were not followed by police while effecting the alleged recovery of the weapon. We, accordingly, hold that the prosecution did not succeed to prove its case against the appellant beyond doubt. By giving the benefit of doubt to the appellant, his conviction and sentence are set aside and he is acquitted.
He shall be released forthwith provided of course he is not need in some other criminal case. The appeal succeed and is allowed.
SA./M-224/1,