' SH. RIAZ AHMAD, J.--- The appellant Muhammad Yasin was tried by a learned Judge, Special Court constituted under the Suppression of Terrorist Activities Act, 1975, on the charge under section 13-E of the Arms Ordinance, 1965, for having kept a Klashnikov P.1 alongwith 11 live bullets and a bag P2 containing 40 live bullets without any licence. Vide judgment dated 29-7-1991, learned trial Judge found the appellant guilty on the aforesaid charge. He was accordingly convicted and sentenced to three years' R.I. Plus a fine of Rs,10,000 or in default thereof to undergo R.I. For six months.
2. Aggrieved by his conviction and sentence, the appellant has filed this appeal, which shall be disposed of through this judgment.
3. The prosecution case, in brief as detailed in the complaint Exh.P.B. Is that on 12-1-1991 Mirza Ghaffar Beg, Inspector S.H.O. Police Station Kassoke District Gujranwala was present alongwith other police officials on patrol duty at Chowk Haji Karam Ullah in village Bhoon Kalan. At about 1-00 a.m. He received a secret information disclosing that the appellant who was proclaimed offender in a murder case was present in his house alongwith his illict arm and ammunition. On receipt of this information, the police party reached his village Thatha Chah Qadir. The police also made Zaka Ullah and Atta Ullah P.Ws. To join the investigation. The raiding party encircled the house of the appellant and also asked him to come out. According to the complainant, the appellant resisted and was not willing to come out. He was threatened with serious consequences if he did not obey the order of the police. After some time, the appellant came out and was apprehended. On search of the house, Klashnikov fitted with magazine containing 11 bullets P.1 and bag with 40 live bullets P.2 were recovered from under the pillow of ,the cot of the appellant. These articles were taken into possession vide memo. Exh.P.C. Which was attested by Zaka Ullah and Atta Ullah P.Ws.
4. To substantiate its case at the trial, the prosecution relied upon the the testimony of Zaka Ullah P.W.2 and Mirza Ghaffar Beg, Inspector P.W.3 while Atta Ullah was given up. With the assistance of the learned counsel for the appellant and the State we have read the record with care. The perusal of the evidence shows that the recovery in this case is doubtful on the face of it. According to the complaint Exh.P.B. The police party reached the village of the appellant and on seeing the light of the police vehicle Atta Ullah and Zakaullah P.Ws. Came out from the house of Arif deceased where they were sleeping at that time and thus they joined the raiding party. On the contrary, according to Mirza Ghaffar Beg P.W.3 when he reached the village Thatta Chah Qadir both Atta Ullah and Zaka Ullah were allegedly present outside the village at the Dera of Atta Ullah from where they joined the investigation of the case. This is of course irreconcilable contradiction which would go to the very root of the whole case. Arif who was murdered earlier was a cousin of both the said witnesses and the appellant. In the muder case of Arif, the appellant was tried alongwith his co-accused. He was, however, acquitted while his co-accused Riasat Ali was convicted. It is also pertinent to mention that the only entry to the house of the appellant has also made the prosecution case highly doubtful keeping in view the safe escape of the accused from such a place which was encircled by a heavily armed police. According to Mirza Ghaffar Beg when the appellant was called out, his mother opened the window and the main door through which the members of the raiding party entered the house. There is nothing on record to show that the appellant led the police to the recovery of illicit arm and the ammunition in order to prove his exclusive possession of the house.
On the contrary, according to the evidence the appellant was first of all apprehended by the police.
Thereafter, the aforesaid Klashnikov and the bullets were recovered from one of the living rooms of the house of the appellant as a result of search by the police. In the circumstances, it cannot, therefore, be said with certainty that this was the exclusive sleeping place of the appellant from where the recovery was effected. Even otherwise, from the evidence it is not clear as to whether it was the appellant who got recovered the illicit arm and the ammunition from his house. Admittedly the appellant used to live with his mother, brother and father in the aforesaid house and as per his statement under section 342, Cr.P.C. He had come to the village only on 8-1-1992 on casual leave and on the next date namely 9-1-1992 he himself appeared before the police. Considering the case from all angles and the accumulative effect of the evidence on the record, we hold that the recovery in this case was not free from doubt. Thus, the conviction and sentence of the appellant cannot be sustained in the given circumstances. The appeal is, thus, allowed and the conviction and sentence of the appellant are set aside. He shall be released forthwith provided he is not needed in some other criminal case.