' SH. RIAZ AHMAD, J.--- Appellant Nazim Hussain son of Ghulam Muhammad resident of Khoot Khurd was tried on the charge under section 13 of the Arms Ordinance XX of 1965 by a Special Court constituted under the Suppression of Terrorist Activities Act, 1975.
2. Vide judgment, dated 13th of September, 1992, the appellant was found guilty on the aforesaid charge and thus he was convicted and sentenced to undergo rigorous imprisonment for a term of five years and to pay a fine of Rs,20,000 in default thereof to suffer R.I. For a term of six months.
3. Aggrieved by his conviction, the appellant has preferred this appeal which shall be disposed of through this judgment.
4. The prosecution case in brief is that at 1 p.m on 23rd of July, 1991, Muhammad Rafique, S.H.O.
(P.W.1) Police Station City Kamuki alongwith other police officials was present in the Chowk of Kamuki in connection with the investigation of a case registered vide F.I.R. No,157 of 1991, Police Station City Kamuki when he was given secret information that the appellant was retaining stolen property of this case in his house. On the receipt of this information, a raiding party was formed by the S.H.O. Consisting of himself, Nasarullah F.C. (P.W.2) and Muhammad Ramzan F.C. (not produced) and thus the raiding party proceeded to village Khoot Khurd and the house of the appellant was raided. It is alleged that underneath the bed sheet on a cot in the aforesaid house, Klashnikov P.1 was found. Accordingly, the said Klashnikov P.1 was taken into possession vide recovery memo Exh.PA. Attested by Muhammad Rafique S.H.O. P.W.1 and Nasarullah F.C. (P.W.2). The S.H.O. Then drew a complaint Exh.P.B. At about 1-30 p.m. And sent the same to the police station for registration of the case. At the police station formal F.I.R. Exh.P.B./1 was drawn by Shaukat Hayat, A.S.I. (P.W.4) and thus in these circumstances, the appellant was sent up to face his trial.
5. With the assistance of the learned counsel for the appellant, we have carefully perused the entire evidence on the record and we have also heard him at length.
6. At the very outset, we are surprised as to how this case could be registered against the appellant because there is no evidence on the record to burden him with the liability of the possession of Klashnikov. It is strange to note that in cross-examination S.H.O. Muhammad Rafiq and Nasarullah F.C. (P.W.2) admit that the house was open and no inmate was present in the house. There was no outer gate of the house. In these circumstances, we are not prepared to believe that in such like house any one would keep the Klashnikov underneath the bed-sheet on a cot. Assuming otherwise, even then the appellant cannot be burdened with the liability because there is also no evidence on the record that the house belonged to the appellant. The Investigating Officer was also cross- examined on this point and he admitted that he collected no evidence to prove that the house was owned by the appellant. It is also pertinent to mention that the appellant was in Sheikhupura at the time of the recovery and was involved in an encounter with the police and it seems that only with a view to victimize, this recovery was planted on him. It is further pertinent to mention that P.W.3 Muhammad Hanif, A.S.I. Admitted in cross-examination that he had recovered .7 mm rifle instead of Klashnikov.
7. Not only this judgment but in so many other judgments, we have observed that the administration of criminal justice is being polluted by the police and surprisingly, even the Special Courts do not consider nor apply their minds to the evidence on the record. The Courts are supposed to administer justice and not to become an instrument of tyranny. The conviction in this case was recorded by disregarding all the principles governing administration of justice on criminal side.
8. Consequently, this appeal is allowed. The conviction and sentence of the appellant is set aside.
He shall be released forthwith if not required in any other case.