HAZIQUL KHAIRI, J.- The appellant Saleem was convicted and sentenced to undergo R.I. For four years under Section 13-D Arms Ordinance by (S.TA.) Special Court III Karachi.
2. As per the F.I.R, lodged by one Muhammad Ghouse S.H.O, of Police Station Korangi while he was patrolling in 'K' Area Korangi on 12-7-1992 at about 1.00 A.M., he found the appellant Saleem at bushes by the side of K.T.C. Bus stop. The said accused ran away after seeing the police party, which chased him and ultimately caught hold of him. After interrogation, the appellant took the police party to a place near bushes and recovered from there a Kalashinikove with 8 rounds and magazine which were wrapped in a old cloth. Similar statement is found in the mashirnama, Ex.4.
Since the appellant could not produce any licence for the kalashinikov, a case against him was registered under Section 13-D of the Arms Ordinance. Similarly P.W.1 Manzoor Baig who is also a mushir and is a police constable had deposed in examination-in-chief that on the Plantation of the appellant the police recovered unlicenced arms and ammunition from the bushes which were not buried in the ground. As against this the said S.H.O. Raja Ghous Muhammad P.W.3 complained when cross-examined took a somersault and contradicted himself stating that police constable with him dug the ground in his presence from where the said unlicenced Kalashnikov and other ammunition were recovered from the bushes. He also admitted that 'K' Area is the busiest market in Korangi and has the only Bus slop there but he could not find any private witness.
3. The evidence on record is not satisfy enough to convict the appellant. The recovery was not made from the person of the appellant. There are material contractions in the deposition of prosecution witnesses. The evidence of the prosecution, does not inspire confidence. The plea of learned counsel for the State that under Section 8 of the S.T.A, the burden of proof is upon the accused is not applicable in this case as the prosecution has failed to prove possession or cost of the Kalashinikov and the 8 round of ammunition with the appellant.
In the circumstances we allow the appeal. The appellant may be released if not require any other criminal case.