' SH. RIAZ AHMAD, J.--- The appellant, Naveed Saeed, was tried by a Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975, on charge under section 7 of the Surrender of Illicit Arms Ordinance, 1991 (7-20-91). Vide judgment, dated 4-8-1992, the learned Judge found the appellant guilty on the aforesaid charge and thus, he was convicted and sentenced to undergo rigorous imprisonment for a term of five years and a fine of Rs, 20,000 or in default thereof to suffer further R.I. For a term of four months.
2. The appellant assails his conviction and sentence through this appeal which shall be disposed of through this judgment.
3. The prosecution case in brief is that on 6-10-1991, Muhammad Ilyas P.W.2, a Sub-Inspector alongwith others was present near Moon Market, Mama Iqbal Town in connection with search of proclaimed offenders and bad characters. An informant gave them an information that the appellant has a Klashnikov in his possession and the same, therefore, can be recovered from him.
On receipt of this information, Muhammad Ilyas S.I. P.W.2 formed a raiding party and raided the house of the appellant situated in Jinnah Street. The appellant was called out and was apprehended. On interrogation, according to Muhammad Ilyas, S.I. P.W.2, the appellant disclosed that he could get Klashnikov recovered and then led the police to his house and from his residential room from inside an Attache-case he got recovered Klashnikov P.1 fitted with a magazine P.2. The same were taken into possession vide memo. Exh.P.C. Attested by Muhammad Ilyas, S.I. P.W.2, Muhammad Arshad Constable and Munawwar Hussain, a public witness. It is pertinent to mention that the witness from public Munawar Hussain is resident of village Dhaiwala Awan and had by chance met Muhammad Ilyas, S.I. Ip Moon Market and, therefore, he was made to join the recovery in this case. The complaint Exh.P.A. Was written at the spot and was sent to the police station for registration of formal case where formal F.I.R. Exh.P.B. Was drawn by Zafar Mahmood Moharrir Head Constable.
4. With the assistance of learned counsel for the appellant and the State, we have carefully perused the entire evidence on record. To prove its case at the trial, prosecution placed reliance upon the testimony of Muhammad Ilyas, S.I. P.W.2. And Muhammad Arshad H.C. P.W.3. Zafar Mahmood H.C. P.W.1 is a formal witness. When examined under section 342, Cr.P.C. The appellant denied the charge and produced two witnesses, one Dr. Fakhar-ul-Islam D.W.1, who is a medical practitioner and the other Bashir Ahmad D.W.2, who is Mohallandar of the appellant. Both the witnesses stated that it was night time when they woke up and saw that the police was taking away the appellant from his house and that no Klashnikov was recovered from him.
5. We have examined the evidence very carefully and we regret to observe that the learned trial Judge did not at all proceed in this case in a manner enjoined by law. The only witness from public i,e. Munawar Hussain had filed an affidavit denying the recovery of Klashnikov at the instance of the appellant when he was admitted to bail. In absence of any statement by the Public Prosecutor that the witness had been won over by the appellant, the presumption would be that had he entered the witness-box, he would not have supported the prosecution case. Adverting to the statements of Muhammad Ilyas, S.I. P.W.2 and Muhammad Arshad H.C. P.W.3, their evidence is discrepant and does not prove the prosecution case inasmuch as Muhammad Arshad P.W.3 stated that it was evening time that the secret information was received and the raid was conducted whereas according to Muhammad Ilyas P.W.2 it was about 11 a.m. When he received secret information and raid was conducted at the distance of 3 furlongs from Moon Market. Obviously, if statement of Muhammad Ilyas, P.W.2 is to be believed, it would have hardly taken 15 minutes to reach the house of the appellant and, therefore, this discrepancy goes to the very root of the case and cannot be brushed aside as immaterial. Further, according to Muhammad Ilyas P.W.2 Klashnikov P.1 was got recovered by the appellant from an attache-case while according to Muhammad Arshad P.W.3 the same was brought out by the appellant from a Paiti. Both the witnesses admit that number of persons had gathered at the time of recovery and there is no explanation on record as to why those witnesses from the locality were not made to join the investigation. Munawar Hussain, allegedly accompanied the raiding party from Moon Market despite the fact that he was resident of a far-off village. In this view of the matter, we are not convinced with the genuineness of the recovery. As far as the defence evidence is concerned, Dr. Fakhar-ul-Islam, D.W.1 is a respectable medical practitioner of the area and cannot be expected to tell lie in a Court. According to him, it was night time when after hearing the noise, he got up and saw the police taking away the appellant from his house. Similar is the statement of Bashir Ahmad, D.W.2. Both these witnesses have no axe of their own to grind. We are of the view that both the witnesses appeared in defence of the appellant out of civic sense and thus proper weight has to be given to their testimony.
6. For the foregoing reasons, we are of the view that the prosecution has failed to bring guilt home to the appellant. Consequently, this appeal is allowed. The conviction and sentence of the appellant is set aside and he is acquitted. He shall be released forthwith provided, of course, he is not required in any other case.