' MIAN ABDUL KHALIQ, J.--- Qadir Bakhsh alias Qadoo son of Wazeeran, caste Deshti Baloch, aged 28 years, resident of Chakkar Bot, Tehsil Rujhan, District Dera Ghazi Khan was convicted and sentenced to suffer 7 years' R.I. And a fine of Rs,95,000, or in default thereof to undergo R.I. For further period of 2 years by the learned Judge, Special Court for Suppression of Terrorist Activities, Bahawalpur Division, Bahawalpur on 26-9-1990 for possessing unlicensed rifle China made alongwith 60 live bullets.
2. Briefly the facts are that on 31-7-1990 P.W.4 Khuda Bakhsh at about 1-45 a.m. (night time) was on patrol duty near Lal Bridge when he received information through P.Ws. Ghulam Farid and Mukhtar Ahmad that the appellant who was wanted in many dacoity and murder cases of Police Station Bhong and was an absconder, would cross Jafer Lal Bridge and if secret Nakabandi would be made, the arrest of the absconder was sure. On receipt of such information P.W.4 made Nakabandi on both sides of the bridge with the police officials and the informeRs, After 1-1/2 hours when the appellant was trying to cross Jafer Lal. Bridge, was apprehended alongwith the rifle P.1 China-made loaded with magazine containing 5 bullets P.2/1-5 and a bag P.2 containing 55 bullets, total 60 bullets P.1/1-60. The appellant could not produce any licence. P.W.4 drafted complaint Exh.P.D. And sent the same to the police station for registration of the cases. The appellant did not plead guilty to the charge and in consequence thereof he was tried by the learned Special Court. The prosecution in order to substantiate its case produced Mukhtar Ahmad (P.W.1), Ghulam Farid (P.W.2), Saleh Muhammad (P.W.3) and Khuda Bakhsh S.H.O. (P.W.4). Salah Muhammad, Moharrir Head Constable who had drafted the F.I.R. Exh.P.D./1 on the basis of complaint Exh.P.D. Received on 31-7-1990, was not produced. P.W.1 Mukhtar Ahmad stated that he alongwith P.W.2 Ghulam Farid at about 11/12-00 a.m. Reached Jafer Lal Pul, where the police was present after arranging Nakabandi at that time. The appellant was apprehended and a rifle containing 5 bullets was recovered from him. The appellant also was carrying a bag which contained 55 bullets. The total number of bullets was 60. The articles were secured by the police vide memo. Exh.P.A. Attested by him. P.W.2 Ghulam Farid stated that about 11/12-00 p.m. He alongwith P.W.1 Mukhtar Ahmad reached Pul Jafer Lal where the police was present and had made Nakabandi and in their presence the appellant was apprehended by the police. Rifle P.1, 60 bullets Exh.P.1/1-60 were recovered from him, i,e. 5 bullets in the magazine and 55 bullets in the bag Exh.P.B. He attested memo. Exh.P.A. P.W.3 Saleh Muhammad, Head Constable/Armourer of Police Station Rahimyar Khan had examined Exh.P.1 and found the same as 7.62 mm rifle, which was fit to use and his report is Exh.P.C. P.W.4 Khuda Bakhsh, S.H.O. Is the complainant and the Investigating Officer. He narrated the same facts as stated by him in the complaint Exh.P.D. He had apprehended the appellant from Jafer Lal Bridge alongwith rifle P.1 with a magazine containing 5 bullets and a bag P.2 having 55 bullets carried by the appellant. The accused could not produce any licence. He drafted complaint Exh.P.D. And had secured crime property vide memo. Exh.PA. After completion of the investigation he had challaned the appellant.
3. The appellant while making statement under section 342, Cr.P.C. Denied the allegations levelled against him and took the plea that the case had been falsely created against him by the Raees family in connivance with the police, and the P.Ws. Deposed against him at the instance of the police. The appellant did not produce evidence in defence, but made statement on oath as envisaged under section 340(2), Cr.P.C. And had stated that he was tenant of Shafiq Khan Lcghari and there was a dispute between Leghari family and Raees family. Races Wazeer got registered false cases against him, but the appellant did not appear before the police. When he came to know, he lodged a protest. Races Ghazi had asked the appellant to vote for him and he would get cancelled cases against him, but the appellant refused. Thereafter Raees Ghazi got registered this false case against him and the appellant told Races Shafiq who produced him before the police.
Malik Khuda Bakhsh, S.H.O. Bhong had injured him with Klashnikov. He was subjected to police fight and was got injured and in order to save the police the present false case was planted against him.
4. The learned counsel contended that there was absolutely no sufficient evidence to connect the appellant with the commission of the crime. The learned State counsel submitted that the crime property was recovered from the possession and control of the appellant and he maintained that the prosecution evidence was trustworthy.
5. We have heard the learned counsel for the parties at some length and have also perused the whole record with due care. P.W.4 complainant in complaint Exh.P.D. Had mentioned that he had received secret information from P.W.1 Mukhtar Ahmad and P.W.2 Ghulam Farid. They stated that they reached Jafar Lal Bridge where the police was present on Nakabandi and in their presence the appellant was apprehended alongwith the crime property. P.W.1 has stated the time and arrest of the appellant as 11/12-00 a.m., whereas P.W.2 has stated about the time as 11/12-00 p.m. During cross-examination P.W.1 stated that he did not know the accused before the incident and at the time of arrest he came to know the appellant. He further stated that he did not know whether Shafiq Khan had produced the appellant. P.W.2 stated during cross-examination by the A.A.-G.
That memo. Exh.PA. Did not bear his signatures and it was incorrect that Exh.PA. Was not thumb- marked at all. He further stated that he however, thumb-marked the documents. P.W.2 denied the suggestion that he had deposed falsely about the thumb-marks as he had been won over by the appellant. P.W.4 had stated that he had received secret information from P.Ws.1 and 2 about passing of the appellant through Jafer Lal Bridge, but they had stated nothing about furnishing secret information to P.W.4. Moreover, it is worth mentioning that nothing has been said by P.Ws.1 and 2 about their purpose of being present at the relevant time and they also stated nothing about furnishing secret information to P.W.4. It is astonishing that neither Saleh Muhammad, Head Constable/Moharrir who was writer of the F.I.R. Has been produced nor any other P.W. Had stated that the F.I.R. Was in the hand of Saleh Muhammad and bore his signatures. Surprisingly the learned trial Judge has exhibited the F.I.R. As Exh.P.D./1. This being so in our view the conviction of the appellant cannot be maintained. It has been noted by us that the evidence recorded by the trial Court is full of spelling and grammatical mistakes. It appears that the learned trial Judge never cared to look into the evidence recorded during the trial. The careless attitude of the learned trial Judge towards the writing of judgment and other record is not desirable.
6. We have been persuaded to hold that the sentence awarded to the appellant is not warranted by the evidence on record. Accordingly, we set aside the conviction and sentence of the appellant, who shall be released forthwith, if not required in any other case.