' RASHID AZIZ KHAN, J.---Appellant, Iftikhar (26) and his servant Taj Din, were sent up by Police Station Sarai Mughal, for trial, for an offence under section 13 of Arms Ordinance, 1965. Special Judge, Suppression of Terrorist Activities, Lahore Division, Lahore, vide his judgment dated 30-5- 1991, convicted and sentenced both of them under section 13 of Arms Ordinance to six years' R.I.
Each and a fine of Rs,50,000 each, or in default further R.I. For one year each. They have appealed.
This judgment shall dispose of the. Same.
2. The prosecution story in brief as disclosed in the F.I.R. Exh.PA was to the effect that one Muhammad Tariq was in custody in connection with narcotic case. During interrogation he disclosed that he had purchased narcotics from Iftikhar, who along with others was involved in the sale of narcotics. In pursuance of said information a raiding party was constituted by Saeed Ahmed Khan, D.S.P., who associated other police officials as well and raided the Haveli of Iftikhar accused. Iftikhar accused managed to slip away. However, Taj Din accused was arrested on whose pointation 25 Kg. Heroin as well as a Klashnikov with two Magazines and 90 bullets were recovered.
In pursuance of said recovery the present case was registered.
' Complaint Exh.PA was lodged by Saeed Ahmed Khan, D.S.P., P.W.5, with Police Station Sarai Mughal.
Formal F.I.R. Exh.PA/1 was recorded by Abdul Razzaq, HC, P.W.2. Saeed Ahmed Khan, D.S.P., P.W.5 had recovered Klashnikov P.1 with two Magazines P.2/1-2 and 90 bullets of Klashnikov P.3/1-90 and two Magazines P.4/1-2, vide memo. Exh.PB. After usual investigation he challaned the accused.
' Prosecution in support of its case produced five witnesses in all. P.W.1, Abdul Ghafoor, Inspector Range Crime, Lahore, had partly investigated the case and challaned the accused. Abdul Razzaq, H.C., P.W.2 had drawn formal F.I.R. Exh.PA/1. Khurshid Anwar Cheema, Inspector/S.H.O., P.W.3 was Member of the raiding party. He along with others raided the Haveli of Iftikhar accused where Taj Din with two others were arrested. Iftikhar accused however managed to slip away. Rana Muhammad Yaqoob, AETO, Excise Department, P.W.4 was also member of the raiding party. Saeed Ahmed Khan, D.S.P., P.W.5 had constituted raiding' party party and recovered unlicensed fire-arms.
' At the conclusion of the prosecution evidence appellants were examined without oath. They refuted the prosecution allegations and pleaded, innocence. They however neither produced any defence evidence nor appeared in defence on oath.
' It was contended by learned counsel for the appellants that the-prosecution was not able to establish its case at all. Submitted that both the appellants were proceeded against for being in possession of unlicensed firearm whereas Iftikhar accused was not even arrested at the spot therefore he could not be charged for an offence under section 13 of Arms Ordinance. Asserted that Taj Din was admittedly a servant of Iftikhar accused and nothing was recovered from him instead a Klashnikov was found inside the room regarding which he could not produce any licence.
Contentions were opposed by learned counsel for the State.
3. We have heard the learned counsel at length and gone through the evidence. In cross- examination it has come on the record that the Haveli from where illegal fire-arm was recovered was neither in the ownership of Iftikhar appellant nor in his exclusive possession. He was not even arrested at the spot and in such circumstances his involvement is not established at all. As far as Taj Din appellant is concerned, he admittedly was servant of Iftikhar appellant. The place from where Klashnikov was recovered was neither in the ownership of said Taj Din nor he claimed possession of the same. It was not recovered from his possession. Recovery was from a Haveli which was neither owned by Taj Din nor it was in his possession. His presence at the spot would not establish charge under section 13 of the Arms Ordinance.
4. For what has been discussed above, we hold that the prosecution has not been able to establish its case beyond doubt. Therefore, we accept the appeal and set aside the conviction and sentence of the appellants. Appellants shall be released forthwith if not required in any other case.