SH. RIAZ AHMAD, J.--- Appellant Zaffar Iqbal was tried on the charge under section 13 of the Arms Ordinance, 1965 by a Special Court constituted under the Suppression of Terrorist Activities Act, 1975. Vide judgment, dated 20th of June, 1990, the learned trial Judge found the appellant guilty on the aforesaid charge and convicted and sentenced him to undergo R.I. For seven years, and to pay fine of Rs. Ten thousand, or in default thereof, to further suffer R.I. For one year.
2. Aggrieved by his conviction and sentences, the appellant has preferred this appeal through jail, which shall be disposed of through this judgment.
3. The prosecution case, in brief, as stated in the F.I.R. Was that on 29th of April, 1990, the police party headed by S.H.O. Police Station Saddar Mianwali was present in village Wattan Khel in connection with a raid on illicit arms. According to the prosecution, a secret information was received by the S.H.O., that the appellant was present with the ammunition like the Klashnikov on the river bed situated at a distanee of 1-1/2 furlongs from the village Watta Khel. It is alleged that on the receipt of such information, the police party proceeded towards the river bed, and found the appellant present there alongwith the Klashnikov, its magazines and bullets. Accordingly, the appellant was apprehended, and from his possession, a Klashnikov P.1 loaded with 28 cartridges, one spare magazine loaded with 28 live cartridges and other 23 live cartridges were recovered. All these articles were taken into possession, vide memo. Exh.P.A. Attested by Muhammad Anwar, S.I./S.H.O.
P.W.1 and Ghulam Sarwar and Hamid Ullah constables.
4. At the trial to substantiate its case, the prosecution produced Muhammad Anwar S.I./S.H.O. As P.W.1 Head Constable Behrarn. Khan and Ghulam Sarwar as P.Ws. 2 and 3 respectively while Hamid Ullah was given up. The entire prosecution case is that the appellant was lying in the river bed, and according to the statement of Ghulam Sarwar P.W.3, the appellant was holding the magazine in his right hand, while the prosecution story by itself suffers from inherent defects, and thus, does not inspire confidence, therefore, we are not convinced about the truth of the prosecution version.
Strangely enough, the information as to the presence of the appellant with a bulk of ammunition was A received by the police in the village Watta Khel, therefore, it was incumbent upon the S.H.O.
To have made any villager to join the recovery proceedings or he could have taken the Lumberdar of the village alongwith him to watch and verify the recovery, but the S.I-I.O. Did not choose to do so. It is also unintelligible to us as to why the appellant was lying alongwith the ammunition in the river bed. The trend of the cross-examination shows that the appellant was involved alongwith his sister's husband in a murder case, and it has, consistently been suggested to the S.H.O. P.W.1, that he was demanding Rs.34,000 for letting off the appellant and his sister's husband, and only an amount of Rs.20,000 could be paid to the S.H.O., and due to the failure to pay the balance amount, the appellant has been involved in this case. Although, the S.H.O. P.W.1 denied all these suggestions, but the defence evidence led by the appellant is consistent with the defence version which shows that there was such demand on the part of the S.H.O. P.W.1, and thus, this aspect of the case casts doubt upon the prosecution case. Similarly, the trend of cross--examination also shows that sister's husband of the appellant was involved in a murder case by the S.H.O. P.W.1. Although, it is established on the record that the appellant and the husband of his sister were not the accused in the murder case, but yet there is some semblance of truth that they were made to join the investigation of the murder case.
5. Be that as it may, leaving this aspect aside, the recovery evidence falls m short of judicial standard on the basis of which the conviction should not have` been recorded. We have also made such observations with regard to the conduct of the police in the judgment delivered in Criminal Appeal No.43/J of 1990. A copy of this judgment be also sent to the Inspector-General of Police, Punjab and the Home Secretary, Punjab for such action as they deem fit. Resultantly, we accept 'this appeal; the conviction and the sentences of the appellant are set aside. He shall be released forth with, if not required to bell detained in any other case.