' MUHAMMAD AMIR MALIK, J.---Rana Farhat Ali appellant was convicted under section 13 of the Arms Ordinance, 1965, and under section 5 of the Explosive Substances Act, 1908, by Special Court Punjab (Suppression of Terrorist Activities) Lahore and vide judgment dated 7-5-1988 respectively sentenced to five years' R.I. And a fine of Rs,10,000 or in default thereof two years' R.I., and to undergo ten years' R.I. Both the sentences were ordered to run consecutively. He has appealed.
2. Rana Farhat Ali appellant was arrested on the night 22/23-4-1983, under a detention order whereafter he led the police party to the house of his parental-aunt's daughter Mst. Ghulam Kubra (P.W.2) in Gakhar Mandi and got recovered three Klashnikovs with bullets, two .32 bore revolvers with cartridges, two hand-grenades and fuse which were taken into possession vide memo. Exh.PC.
3. On 29-5-1983, Muhammad Ramzan (P.W.5) Sub-Inspector, Crimes Branch, Lahore, received letter Exh.PD from Inter-Services Intelligence and on its basis entered the formal F.I.R. Exh.PD/1.
4. The prosecution produced six witnesses to prove the recovery from the appellant. In his statement at the close of the trial the appellant pleaded that he was an active member of Pakistan Peoples Party since 1968, the Martial Law Authorities started action against such members and so got registered case F.I.R. No,211/81 in the year 1981 at Police Station Old Anarkali. In connection with that a proclamation was issued by the Martial Law Authorities and in obedience to that he himself appeared before the Crimes Branch, Lahore, was entrusted to Major Shahid of I.S.I. Who tortured him in a cell for 15 days, confined him in Shahi Fort, was never taken to Gakhar Mandi nor he got recovered any weapon. According to him Ch. Khalid Abdullah, D.S.P. Was posted in Crimes Branch, was inimical to him and got him falsely involved in the case. Ch. Ghulam Qadir and Sh.
Muhammad Rashid (D.Ws.1 and 2) were also produced in defence.
5. Learned counsel for the appellant has contended that the appellant was in the custody of Inter- Services Intelligence, nothing was recovered from him, the alleged recovery was effected on 22/23- 41983, the F.I.R. Was lodged on 29-5-1983 after the alleged recovery, the weapons were never deposited in any police station so much so that we have no evidence that the weapons produced in Court were the same which were got recovered by the appellant. After hearing him and going through the record, we are inclined to agree with him.
6. Muhammad Hussain Shah, A.S.I. (P.W.1) stated that on 29-5-1983 when he was posted at Police Station Sadar Wazirabad, on the receipt of complaint Exh.PA from Muhammad Ramzan Sub- Inspector Crimes Branch (P.W.5) he registered the formal F.I.R. (Exh.PA/1). Mir Muhammad Inspector (P.W.3) was posted to Anti-Terrorist Cell Punjab, Lahore, in January 1984 and the appellant was being detained in Lahore Fort. Abdul Hameed, Sub-Inspector (P.W.4) is the only witness as to the recovery of the weapons from the appellant. Re deposed that on 22-4-1983 while posted as A.S.I.
Badami Bagh, Lahore, he accompanied the appellant to the House of Mst. Ghulam Kubra (P.W.2) wherefrom he got recovered the weapons. He also stated that the appellant was in his custody and custody of Waris, Sub-Inspector of I.S.I. He also stated that after the recovery the appellant as well as the weapons were taken away by Waris, Sub-Inspector. This Waris, Sub-Inspector has not been produced at the trial. In cross-examination he stated that he did not make any entry in the daily diary of the Police Station as to his departure with Waris, Sub-Inspector, the accused was not known to him, the appellant was arrested at 7-00 p.m. And at about mid-night he led to the recoveries. He also stated that they had gone to Gakhar Mandi in an army-jeep without making any report at Police Station Wazirabad, no person from Gakhar Mandi or any public person was associated to witness the recovery. Waris, Sub-Inspector was the Incharge of the Investigating Team. Muhammad Ramzan, Sub-Inspector stated that on the instructions of the S.P. Crimes Branch, he reached the Office of I.S.I. On 29-5-1983 and collected the fire arms and deposited the same in the Malkhana on 29-5-1983.
7. From this evidence it is clear that the appellant was in the custody of the Inter-Services Intelligence and might be Army Authorities were also associated when he got recovered the weapons from the house of his cousin Mst. Ghulam Kubra. Mst. Ghulam Kubra did not support the prosecution case, was declared hostile and cross-examined by the learned prosecutor. The only recovery witness is Abdul Hameed, Sub-Inspector P.W.4. The articles allegedly recovered from the appellant were taken away by Waris, Sub-Inspector and he has not been produced. The recovery was also effected as per the evidence at mid-night and without any public person being present.
The Sub-Inspector cannot be believed explicitly in the circumstances of the case without corroboration and none is there on the record.
8. The upshot is that the appeal is accepted and the appellant is granted the benefit of doubt. His conviction and sentence are set aside and he is acquitted of the charge. He is on bail and stands discharged of the bail bonds.