JUDGMENT RAJA ABDUL AZIZ BHATTI, J.- Muhammad Saleem Qadir son of Abdul Qadir resident of House No. 400-A/1, Peshawar Road, Rawalpindi, presently confined in judicial lock-up has challenged the judgment/order dated 5.6.1995, passed by Mr. Lutaf Ali Malik, Judge Special Court No. 1, Suppression of Terrorist Activities, Rawalpindi Division, Rawalpindi, whereby the appellant was convicted u/S. 13/20/65, Arms Ordinance and sentenced to undergo 7 years R.I. With a fine of Rs. 1,00,000/- in default whereof to further undergo one year's R.I. With benefit of Section 382-B Cr.P.C.
2. This case is connected with Criminal Appeal No. 127/95, where in Muhammad Saleem Qadir and his co-accused have been sentenced under Section 365-A, PPC read with Section 34, PPC for life imprisonment with a fine of Rs. 1,00, 000/- each, in default whereof further undergo one year's R.I.
Each.
3. The prosecution story in brief is that on 31.1.1995 about 5:15 P.M. Muhammad Saleem Qadir convict while armed with Kalashnikov came to Qadir Motors Petrol Pump, Peshawar Road, Rawalpindi alongwith his co-accused with a view to abduct away Muhammad Asraf Abbasi. The matter was reported by his relative Tariq Abbasi to the police of P.S. Westridges Rawalpindi. On arrival of the police at the Petrol Pump, the matter was brought to the notice of the police on which Abdul Ghanni, SI/SHO alongwith other police officials, complainant and few persons went towards Lane No. 7, where the house of the present appellant was located. The moment, they reached there Muhammad Saleem Qadir while sitting in the car came out of the house alongwith aforesaid abductee and two co-accused. They stopped the car and arrest the accused. On search, they found a Kalashnikov lying in between the front seats, which was taken into possession. Thus he was challaned to the Court for trial.
4. During trial the prosecution produced Ghulam Jilani, Armourer, who supported the prosecution case stating that the weapon was automatic and serviceable. It is commonly known as Kalashnikov.
5. Abdul Khanan-PW2 was produced as recovery witness. He is resident of Muslim Town, Sadiqabad Rawalpindi. Admittedly, this place is located at a distance of 7/8 miles from the place of occurrence. This witness allegedly came to Qadir Motors Petrol Pump with a view to purchase one tin mobile oil, where the occurrence of abduction had taken place. In his presence the accused/appellant was arrested while he was driving Car No. PRM-323. On search of the car Kalashnikov was recovered, which was lying in between the front seats. There are number of contradictions and improvements, brought to light through cross- examination of this witness. It was not mentioned in his previous statement that he came to Qadir Motors Petrol Pump to purchase mobile oil. It is astonishing to note that only for that reason he came to that petrol pump.
While the admits that there is a distance of 7/8 miles in between his place of residence and the place of occurrence. He also admits that there are about 20 petrol pumps in the way. He admits that nobody from the locality was got associated with the recovery proceedings. He showed in- ability to tell that recovery memo, was written with pencil or ink pen. However, he stated the he signed on the memo, with ball point. He stated that within one and a half hour, recovery proceedings were conducted. Nobody of the surrounding area came there. He denied the suggestion that being servant of Iqbal Qadir, he deposed against the accused falsely.
6. Muhammad Ashraf Abbasi PW3, is the alleged abductee. There is an allegation of his abduction against the accused/appellant and others, and a case under Section 365-A, PPC was registered against them. He is under the thumb and complete influence of Iqbal Qadir. Hence his statement cannot be believed in the matter of recovery proceedings. He offered himself to Iqbal Qadir for fabrication of story of his abduction. Hence no importance can be given to the statement of this witness. This witness admits the dispute regarding the property left by Abdul Qadir. He also admits the pendency of the civil suit regarding the property between the parties. In spite of the facts stated above, he has also stated in his deposition that Saleem Qadir was not pursuing the case in the Civil Court concerning the disputed property between Iqbal Qadir and Saleem Qadir.
7. PW 4 Abdul Ghani, SI/SHO P.S. Westridge Rawalpindi, deposed regarding the recovery like other prosecution witnesses. It will be sufficient to say that this witness deposed and acted in the matter under the influence of Iqbal Qadir and it was also suggested to him in cross-examination by the defence.
8. On close of the prosecution case. The statement of the accused was recorded, wherein he had given very detailed statement and produced Dr. Sultan Mehmood DW1, Chanan Shah, SI DW2 and Asif Aftab Qadir DW3.
9. According to defence version, it is a false case fabricated at the instance of Iqbal Qadir with a view to implicate falsely so that the appellant may not claim his share in the property left by Abdul Qadir from Iqbal Qadir.
10. We have heard the arguments of the learned counsel for the parties and gone through the record. Learned defence counsel deposed that a case Under Section 365-A, PPC P.S. Westridge Rawalpindi has been registered falsely regarding the abduction of Muhammad Ashraf Abbasi. He states that Kalashnikov has been planted on the appellant by Abdul Ghani, SI/SHO at the instance of Iqbal Qadir with a view to harass the appellant so that he may not put forward any demand to Iqbal Qadir. The SI and others had beaten Saleem Qadir and there were number of injuries on his person, which were treated and concealed by the prosecution, In this case there are three recovery witnesses, one Abdul Khanan who happened to live at a distance of 7/8 miles away from the place of occurrence. His purpose to come at petrol pump is quite funny. He presently lives at Sadiqabad and there are about 20 petrol pumps in the way. There is no explanation on record for what reason he came at that petrol pump to purchase one tin mobile oil. He was telling a lie and could not make true story to cover his other lies. He claimed that he was present at the place of occurrence and he went alongwith police to Lane No. 7 is also highly unbelievable conduct. To prove his presence at the place of occurrence, nothing was taken into possession during investigation, from him. As far as Muhammad Ashraf Abbasi, recovery witness is concerned, he is contractor of Iqbal Qadir, who himself remained behind the matter and fabricated the story to implicate Saleem Qadir with a view to create fear for him so that he may not claim share of the property left by his deceased father. Nobody was associated from public in this case, in spite of the fact that there is admission on record that the alleged place of recovery is surrounding by the other houses. Saleem Qadir was beaten by Abdul Ghani, SI/SHO and others at the instance of Iqbal Qadir. There were number of injuries on the person of the appellant. He was medically examined by the Jail Doctor and no explanation has been put forward by the prosecution about these injuries. All the three witnesses are not reliable and their statements are devoid of truth. He deposed with a view to implicate Saleem Qadir in this case falsely.
11. We have come to the conclusion that the prosecution has failed to prove this case beyond any reasonable doubt. Hence the appeal is accepted and the appellant is acquitted. Kalashnikov shall be confiscated in favour of the State.