S. M. ZUBAIR, J.- Ijaz Hussain appellant was tried and convicted by the learned Judge, Special Court for Anti Terrorist Activities, Faisalabad, under Section 5 of the Explosive Substances Act, 1908, and sentenced to fourteen years' R.I. Plus fine of Rs. 5,00,000.00 or in default to undergo R.I. For four years. This is vide judgment dated 11-11-1992.
2. The prosecution case in brief is that on spy information that the appellant was in possession of huge quantity of illicit arms, Sarwar Khan, Inspector P.W. 5, along with other police personnel, raided the Baithak of the appellant in Chak No. 151/RB. The appellant managed to escaped but on thorough search of the Baithak, recovered one plastic envelope from Northern-Western window was recovered which contained a bomb. It was taken into possession vide memo. Ex. PA, attested by Sarwar Khan, Inspector P.W.5, Rashid Ahmad P.W. 1 and Muhammad Iqbal, AS1 (P.W. 3). The Inspector drafted complaint Ex. PB/1, on the basis of which FIR Ex. PB was recorded by Irshad Ali Moharrir (PW. 2) at Police Sial ion Khurrianwala. After completing usual formalities, that challan was submitted in the Court.
3. The prosecution in order to prove its case, examined five witnesses. Rashid Ahmad P.W. 1 and Muhammad Iqbal, AS1 (PW. 3) are the recovery witnesses. Irshad Ahmad Moharrir P.W. 2 recorded the formal FIR. Noor Muhammad P.W. 4, Bomb Disposal Commander, Faisalabad, examine the explosive substance and submitted report Ex. PC. Sarwar Khan, Inspector P.W. 5, besides attesting the Recovery Memo. Ex. PA.., also investigated the case.
4. The appellant in his statement under section 342 Cr.P.C, denied the prosecution allegation and deposed that he- has been involved by Rashid- Ahmad P.W.
1. He also appeared as his own witness and made statement on oath. He produced three witnesses, namely, Shahid Hussain D.W. 1, Ismatullah D.W. 2 and Attique Ahmad D.W. 3 in his defence.
5. The learned trial Judge believing the prosecution evidence, convicted and sentenced the appellant as indicated above.
6. We have heard the learned counsel for the parties and have perused the record with their able assistance.
Learned counsel for the appellant contended that the only public witness, namely, Rashid Ahmad PW. 1 who Witnessed the recovery is inimical to the appellant, as per his own admission confirmed by the Investigating Officer; that no person from the locality was associated with the recovery, though available, as such the provisions of section 103 Cr.P.C, were not complied with, which makes the recovery doubtful; that the bomb in question was not recovered either from the possession of the appellant or on his pointation; hence the case is not free, from doubt and, therefore, the appeal may be accepted.
7. The learned counsel for the State has supported the judgment under appeal.
8. After hearing the learned counsel for the parties at length, we find that the bomb hand-grenade was not recovered from the possession of the appellant and there are discrepancies between the statements of the recovery-witnesses regarding the factum of recovery. Rashid Ahmad P.W. 1 made an evasive statement and did not mention the place from where the recovery was made.
According to Muhammad Iqbal P.W. 3, the recovery was made from the North-Western ventilator of th Baithak, whereas according to Sarwar Khan, Inspector (PW.5), the recovery was Irum the North- Western window of the Baithak, which makes the recovery doubtful keeping in view the defence evidence led by the appellant, which was to the effect that the recovery was made from a different person and later on it was planted on the appellant, as he was an accused in case FIR No. 168 and had filed a writ petition against the high-handedness and misconduct of the police. There is also contradiction with respect to the running of the appellant. According to Rashid Ahmad PW. 1, the appellant managed his escape from. The window of the Baithak, whereas according to Muhammad Iqbal P.W. 3, the appellant decamped through the door of the Baithak and according to Sarwar Khan P.W. 5, the appellant ran away from the other door of the Baithak. This shows that the witnesses who allegedly witnessed the the recovery were not present at the spot and the defence version appears to be more probable and nearer to the truth. Moreover, it has come on record that the house of the Lambardar was opposite to the house of the appellant from where the bomb was allegedly recovered. Neither the Lambardar was summoned nor any other person from that locality was associated in the recovery as required under section 103 Cr.P.C.
9. In view of the above discussion and keeping in view the infirmities, referred to above, we hold that the prosecution has failed to prove its case against the appellant beyond reasonable doubt.
We, therefore, accept this appeal, set aside the conviction and sentences of the appellant and acquit him. He shall be set at liberty forthwith, if not required to be detained in any other case.