1. SH. RIAZ AHMAD, J.--- The convict/appellant Zulfiqar Ali has assailed the order, dated 14-11-1990 delivered by Judge, Special Court constituted under the Suppression of Terrorist Activities Act, Gujranwala, whereby the' appellant was convicted under section 13-A of the Arms Ordinance. The appellant was sntenced to undergo rigorous imprisonment for a term of four years' R.I. And to pay a fine of Rs.5,000 or in default thereof to undergo further rigorous imprisonment for a term of one year.
2. The circumstances in which the appellant faced his trial, were that Dildar Ali, S.H.O. P.W.4 Police Station Karianwala, received secret information that the appellant and his brother had deep- rooted enmity in village and the appellant had unlicensed arm with him. The S.H.O. Formed a raiding party consisting of himself, Muhammad Sadiq, A.S.I. (P.W.2) and other police officials and thus, on 14-6-1990, a raid was conducted at the house of the appellant. On the sight of the police, the appellant tried to run away but was apprehended and from his possession Klashnikov P.1, magazine P.2 containing 20 live cartridges and another magazine P.3 containing 20 live cartridges and 150 live cartridges kept in bag P.4, another 80 live cartridges found kept in an other bag, were recovered while lying under the beddings, of the cot of the appellant.' These articles were taken into possession vide memo. Exh.P.B. Attested by Muhammad Ali, A.S.I. (not produced), Muhammad Sadiq, A.S.I. (P.W.3) and Dildar Ali S.H.p. (P.W.4). The S.H.O. Drew the complaint and sent the same for the registration of the case against the appellant.
3. At the very outset, it was contended by the learned counsel for the appellant that there was a discrepancy in the number of Klashnikov as mentioned in the recovery memo and other police papers and the number on the klashnikov produced in Court. Precisely, it was argued that the police had failed to produce klashnikov alleged to have been recovered from the appellant. This material discrepancy was noted by the trial Court and the S.H.O. Was confronted with it and his explanation was that some one or the Moharrir had tampered with it with a view to help the appellant. The S.H.O. Further insisted and categorically stated that the weapon produced in Court was the same which had been recovered from the appellant.
4. We have given our anxious consideration to this aspect of the case and we are not prepared to believe that the Moharrir or some body else had tampered with the number of klashnikov and if at all the allegation of such tampering was correct then it was incumbent upon the S.H.O. To hold an enquiry into this aspect of the case. Not having done so, the benefit cannot be given to the prosecution.
5. The next contention raised by the learned counsel for the appellant was that the raid and the intended search of the appellant without obtaining warrants in this behalf was illegal and unauthorised. It was also argued that the weapon was recovered in pursuance of search and, therefore, to establish the truth in the allegation, it was incumbent upon the police to have complied with the provision of section 103,-Cr.P.C. Somebody else from the village i.e. Public witnesses ought to have, been made to join the investigation and, therefore, the failure of the prosecution to do so falsifies the case.
6. We are impressed by these arguments and furthermore, the record shows that, in fact, there is truth in the assertion of the appellant that his father-in-law in collusion with the police had got this false case registered because he was not treating his wife in a bona Fide manner. Not only he but his other brother married to the daughter of the same person was also not treating his wife properly. The defence evidence was led and it also transpired that now the relations between the appellant and his father-in-law have become cordial. We are persuaded to believe the defence version.
7. For the foregoing reasons; we would allow this appeal, set aside the conviction and sentence of the appellant and acquit him. He shall be released forthwith if not required in any other case.