' SH. RIAZ AHMAD, J.--- Muhammad Rafique alias Bashir son of Muhammad Shafi, Caste Jat, age 27/28 years, resident of village Machhi-KeGoraya, Tehsil and District Gujranwala was tried by a Special Court No,II (Suppression of Terrorist Activities), Sargodha on a charge under section 13 of the Arms Ordinance, 1965, for keeping a Klashnikov in his possession without any licence. Vide judgment, dated 3-7-1991 the learned Special Judge on the aforesaid charge convicted the appellant and sentenced him to undergo 7 years' R.I. And a fine of Rs,50,000 or in default to further undergo 1 year's R.I.
2. Aggrieved by his conviction the appellant preferred this appeal which shall be disposed of through this judgment.
3. The prosecution case as disclosed in complaint Exh.P.B. Is that on 30-5-1991, at about 2-30 a.m. In the morning, Zia Ullah Khan, Inspector of Police Station Bhalwal P.W.1 was present at Bhera Bhalwal Chowk alongwith Amjid Hussain A.S.I. And 10 Constables. A secret information was received by him that three persons armed with weapons were sitting on the bridge of Sem Nala on the road leading towards Deowal. Muhammad Afzal P.W. Also joined the raiding party and thus a raid was conducted at the bridge of Sem Nala where the appellant alongwith two other companions was present. On the order of Zia Ullah Khan S.H.O. P.W.1 the appellant raised his hands while carrying Klashnikov P.1 in his right hand. The said Klashnikov Exh.P.1 alongwith cartridges P.2/1-20 were taken into possession alongwith .30 bore pistol vide recovery memo. Exh.PA. By Zia Ullah Khan Inspector P.W.1. Muhammad Afzal P.W. And Amjad Hussain A.S.I. Witnessed the recovery and attested the recovery memo. A complaint Exh.P.B. Was drawn by Zia Ullah Khan Inspector at 3 a.m. And the same was sent to the police station where a formal F.I.R. Exh.P.B./1 was recorded at 3-30 a.m. By P.W.3 Ahmad Yar Moharrir Head Constable. In these circumstances the appellant was sent up to face his trial.
4. 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 also heard them at length.
5. We would hold to observe that the prosecution story on the face of it seems to be unbelievable.
Three persons could not sit just for wasting away their time at the bridge of Sem Nala and we are also not prepared to believe that they would keep on sitting to wait for the raiding party to reach there and to present them the arms as souvenir. The prosecution case that the appellant was asked to raise his hands and he did so while holding Klashnikov in his right hand also seems to be false. P.W.2 a recovery witness from the public is admittedly a police stock-witness. In cross- examination he admitted that he has been appearing in number of cases at the instance of the police and has been 8 declared as a tout of the police by Magistrate 1st Class, Bhalwal and that he has not filed any appeal for expunction of those remarks.
6. The upshot of the above discussion is that in the above circumstances of this case we are not prepared to believe the prosecution case as presented by it and are of the view that the case is highly doubtful. Hence this appeal is allowed, the conviction and sentence of the appellant is set aside and he is released forthwith if not required in any other case.