RASHID AZIZ KHAN, J.- Muhammad Naghman alias Kaku was sent up for trial by Police Station Kotwali, Sialkot, to face trial for an offence under section 7/20/91 Surrender of Illicit Arms Ordinance, 1991. The case came up for trial before Special Court for Suppression of Terrorist Activities, Gujranwala, who vide judgment dated 7.6.1992 convicted and sentenced him under section 7 of the Ordinance to ten years R.I. The convict has appealed. This judgment shall dispose of the same.
2. Prosecution story in brief, as disclosed in complaint Exh. PA lodged by Said Ahmad, SHO, was to the effect that on 4.9.1991 at about 2 a.m. He was present at Allama Iqbal Chowk along with other police officials when he received secret information that one person was coming from Railway line side carrying firearms. If apprehended, firearms could be recovered. They went to the said place and found a person coming, who was caught and Kalashnikov P.I with two magazines and ten bullets were found in his possession. He could not produce any licence for the same, therefore, the present case.
After usual investigation, the challan was submitted in court. Prosecution in support of its case produced four witnesses in all. PW-1 Muhammad Hanif was a Firearm Expert, according to whom the Kalashnikov recovered from the appellant was an automatic weapon. PW-2 Anwar Faruq Beg, HC, had drawn formal FIR Exh. PA/1. PW-3 Said Ahmad, SI/SHO and PW-4 Hakim Ali, HC were members of the party which apprehended the appellant. At the conclusion of prosecution evidence, the appellant was examined without oath. He refuted the Prosecution allegations and pleaded innocence. He also produced Khalid Bashir Khawaja as DW1.
3. It was contended by learned counsel for the appellant that the case against the appellant was not proved. The prosecution had not come with clean hands and there were discrepancies in their statements. The contentions were opposed by learned counsel for the State.
4. We have heard the learned counsel and gone through the i.e. It is strange to note that Said Ahmad, SHO, PW-3 as well as Hakim Ali, HO, PW-4 do not name the appellant as the person who was found in possession of a Kalashnikov. Instead, Said Ahmad states that he saw a person and apprehended him. As far as PW-4 Hakim Ali, HC is concerned, he stated that the accused was apprehended, but his statement does not indicate whether it was the same accused was present in court, or some body else. This creates a grave doubt in the Prosecution case. Even otherwise, we have noticed that the prosecution witnesses were present in some Chowk when at 2 at night they received secret information with regard to a person coming from Railway line side. This on the face of it is very unnatural. How could they receive information at the dead of the night and that also to the effect that a person would be coming from the Railway line side. This appears to be a concoction. On the other had, the plea of the defence was that in Sialkot City three murders took place and the appellant was taken into custody for purposes of interrogation, and thereafter the false case was made against him. DW-1, a serving Brigadier supported the defence version by stating that he also got in touch with the S.P. About the arrest of the appellant and was informed that the appellant was taken into custody in connection with interrogation. At that time no case was registered against him. Keeping both the versions at juxtaposition, we find the defence version is more plausible which casts doubt on the prosecution case. Therefore, giving the benefit of doubt, we accept the appeal, set aside the conviction and sentence of the appellant. He is in custody. He shall be released forthwith if not required in any other case.