' SH. RIAZ AHMAD, J.--- The appellant Shahbaz Khan was tried on the charge under section 13 of the Arms Ordinance read with section 7 of the Surrender of Illicit Arms Ordinance, 1991 by a Special Court constituted under the Suppression of Terrorist Activities Act, 1975.
2. Vide judgment dated 26th of January, 1992, the learned Judge found the appellant guilty and under section 7 of the Surrender of Illicit Arms Ordinance, 1991, he was convicted and sentenced to undergo 10 years' R.I. He was also given benefit under section 382-B, Cr.P.C. The case property was ordered to be confiscated to the State.
3. The appellant assails his conviction and sentence through this appeal which shall be disposed of through this judgment.
4. The prosecution case in brief is that one Shaukat Ali, a detenu, was interrogated by the Anti- Terrorist Cell who disclosed that Zaheer Hussain a proclaimed offender in case F.I.R. No,461 had kept his sten gun with Shahbaz appellant. Accordingly, Ch. Mushtaq Ahmad, Inspector summoned the appellant who was also interrogated. During the interrogation, the appellant disclosed that he could lead to the recovery of unlicensed sten gun lying in the house of one Akbar Shah situated in village Lohiyanwala. Consequently, a police party consisting of Ch. Mushtaq Ahmad, Inspector Police P.W.2 and Haji Wilayat Khan, S.I. (P.W3) alongwith other police officials went to village Lohiyanwala and from the house of Akbar Shah, allegedly, the appellant after opening the lock of iron box from the key in his possession, got recovered sten gun P.1 and three magazines P2/1-3 which were taken into possession vide memo Exh.P C attested by Mushtaq Ahmad, P.W 2 Inspector Police and S.I. Haji Wilayat Khan, P.W3. Mushtaq Ahmad, P.W.2 then recorded complaint Exh.PA. At 7 p.m. And sent the same to the Police Station Cantt. Gujranwala where formal F.I.R. Exh.PA/1 was scribed by Maqsood Baig, P.W.1.
5. With a view to prove its case at the trial, the prosectution placed reliance upon the testimony of these two witnesses and also the recovery of sten gun and the magazines. G. When examined under section 342, Cr.P.C., the appellant denied the charge and stated that he had been falsely implicated and the sten gun was planted upon him.
7. With the assistance of the learned counsel for the appellant and the State, we have carefully perused the entire record and we have also heard the various contentions raised by both sides.
8. At the very outset, the learned counsel for the appellant has vehemently contended that the conviction under section 7 of the Surrender of Illicit Arms Ordinance, 1991 in this case was without jurisdiction inasmuch as, the Courts constituted under the Suppression of Terrorist Activities Act, 1975 could not have imposed enhanced punishment under the said Ordinance. The appellant could have been tried and punished for the commission of the offence under section 13 of the Arms Ordinance. The contention has force, and thus we hold that Special Court constituted under the Suppression of Terrorist Activities Act, 1975 could not have awarded enhanced punishment because the enhanced punishment for the offence under the Surrender of Illicit Arms Ordinance does not find mention in the Schedule of the Act, therefore, we hold that the Special Court was only competent to punish the appellant under section 13 of the Arms Ordinance.
9. Adverting to the merits of the case, we find serious flaws in the prosecution case. The statements of both the recovery witnesses are discrepant. Furthermore, during the cross-examination Mushtaq Ahmad, Inspector, Police clearly stated that he had not taken into possession the key, lock and the box. He further admitted that he had not arrested the appellant prior to the recovery. The Inspector of Police also admitted that he could not collect any evidence to the effect that appellant had kept the said box at that place. He also admitted that he was unable to collect evidence with regard to the ownership of metallic box wherein the sten gun was lying. Without further discussing the infirmities in the case, we are of the view that the admission of the Inspector Police Ch. Mushtaq Ahmad, P.W.2 by itself is sufficient to hold that the prosecution has failed to prove the charge against the appellant.
10. It is also pertinent to mention that there is not an iota of evidence on the record of the case to connect the appellant in any manner with the house of Akbar Ali where the box was lying.
11. In this view of the matter, we are of the considered view that the case against the appellant is not free from doubt. 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.