S.M. ZUBAIR, J.- This appeal is directed against the judgment dated 15-3- 1993, passed by the learned Judge, Special Court, constituted under the Suppression of Terrorist Activities (Special Courts) Act of 1975, Faisalabad Division, Faisalabad, whereby the learned Judge convicted the appellant under section 13 of Arms Ordinance, 1965, and sentenced him to undergo R.I. For seven years and i.e of Rs. 2,00,000/- (two lacs only) or in default to undergo further R.I. For two years.
2. The prosecution case, in brief, is that on 6-6-1992, at 5.00 p.m. Mukhtar Ahmad SI (P.W.1) of Police Station Ghalib Market, Lahore, along with other Police Officials was present in H-Block, adjoining Nursary LMC, Gulberg, Lahore, for checking purposes. At about 5.0 p.m. One Honda Civic Car bearing No. LOH-1751 appeared from Fowara No.2, driven by the appellant. The police party stopped the car and during its checking recovered one puppyish gun 30 bore automatic (P.I), 15 live cartridges (P.2/1,15) and a Magazine P.3, through recovery memo. Ex.PA, apart from other arms, which is not the subject-matter of this appeal. The recovery was attested by Muhammad Afzal P.W.
2 and Muhammad Ashraf HC (given up witness). The Sub Inspector also took into possession the car vide memo. Ex.PC. Thereafter, the police officer drafted complaint Ex.PD and the sent it to Police Station Ghalib Market, Lahore, for formal registration of the case, where the case was registered by Muhammad Ismail Moharrir (P.W.3). After investigation, the challan was submitted in the Court.
3. The prosecution in support of its case, examined Mukhtar Ahmed S.I. (P.W.1), who is the complainant in this case, Muhammad Afzal (P.W.2) who attested the recovery memo, and Muhammad Ismail Moharrir (PW-3) who recorded the formal FIR Ex.PD/1.
4. The appellant when examined under section 342 Cr.P.C, denied the prosecution allegations and deposed that the police was falsely implicated him in four cases. He produced Muhammad Yousuf D. W.l and Riaz Hussain D.W.2 in his defence and also appeared as D.W.3 as his own witness.
5. The trial Court believing the prosecution evidence, convicted and sentenced the appellant as indicated above.
6. The learned counsel for the appellant contended that the appellant has been involved by the police at the behest of his brother, who have got civil dispute with him and that the recovery had also been planted on him in connivance with his brother; no independent witness has witnessed the recovery memo. Ex.PA. Muhammad Afzal P.W.2, who witnessed the recovery memo. Ex.PA is a stock witness of the police, as is apparent from the certified copies (Ex. DW/F/1-8) of FIRs. Placed on the record. The appellant was behind the bars in connection with case FIR No. 60, under section 380 PPC read with section 14 of Ordinance VI of 1979, registered at Police Station Ghalib Market, Lahore, when this recovery was planted on him on 6-6-1992, showing that he was coming on his car, the car was stopped and the illicit arms was recovered from his possession for which he had no valid licence, In the presence of this evidence, the conviction of the appellant cannot be sustained and by accepting the appeal, the appellant be acquitted. He also submitted that the learned trial Judge has not properly appreciated the defence evidence adduced by the appellant.
7. The learned counsel for the State has supported the impugned judgment.
8. We have heard the learned counsel for the parties. In this case the only public witness is Muhammad Afzal P.W.2, whereas the other recovery witness, a police official, has been given up.
The complainant Mukhtar Ahmad Sub Inspector (P.W.1) has got enmity against the appellant, because he was acting at the behest of brothers of the appellant, who have got civil dispute with him. Resultantly a criminal case under section 380 PPC was also registered against the appellant.
During the cross-examination, Muhammad Afaal P.W.2 denied this fact that he ever appeared as a witness in any case, whereas through Ex. DW/F/1-8), it has been proved that he appeared in 11 cases, so it would not be proper to place explicit reliance on this stock witness of the prosecution.
The recovery was effected on the road side, but no independent witness was examined in this case.
Unfortunately, the learned trial Judge has not properly appreciated the defence evidence brought on the record. The investigation in this case was conducted by a police officer, who himself is the complainant which is against the principle of natural justice.-In the circumstances, the prosecution has miserably failed to prove its case against the appellant beyond reasonable doubt.
9. For the foregoing reasons, we accept this appeal, set aside the conviction and sentence of the appellant and acquit him. He shall be set at liberty forthwith, if not required to be detained in any other case.