MUHAMMAD ISLAM BHATTI, J.---Azhar Iqbal appellant was convicted under section 13 of the Arms Ordinance XX of 1965 in case F.I.R. No.356 of 1995 having been registered at Police Station Yazman on the complaint of Attaullah S.I. On 14-10-1995, by Malik Manzoor Ahmad Judge Special Court for Suppression of Terrorist Activities, Bahawalpur Division, Bhawalpur, by means of his judgment dated 24-1-1996 and sentenced to 5 years' R.I. And a fine of Rs.20,000. In default of payment of fine, he would suffer further one year R.I. He was given benefit of section 382-B, Cr.P.C. He has preferred this appeal against his conviction and sentence.
2. The case of the prosecution, briefly stated, is that on 14-10-1995 when Attaullal. S.I. P.S. Yazman (P.W.3) was carrying out the investigation of case F.I.R. No.353 of 1995, he arrested Azhar Iqbal appellant and from his possession a rifle .222 P1 alongwith Magazine P2 and Bullets P3/1-12 were recovered. He could not produce licence or permit for the same. The said rifle alongwith Magazine and Bullets were taken into possession by the S.I. Vide recover' memo Exh.PC which was attested by Muhammad Bashir P.W.4 and Ghulam Nabi (given up P.W.). The S.I. Drafted the complaint Exh.PB and despatched the same to the police station for registration of formal F.I.R. Through Muhammad Ramzan Constable No.1118. It was Madad A.I I/S.H.O. P.S Yazman P.W.2 who on the 'receipt of this complaint recorded the formal F.I.R. Exh.PB/1 on the basis thereof correctly.
3 Attaullah, S.I. Recorded the statements of the P.Ws. Under section 161, Cr.P.C., after he had prepared the site plan of the place of recovery Exh.PD. He then got examined the rifle P1 from Shair Wali Armourer P.W.1 according to whose report Exh.PA, the rifle was found semi-automatic and in working condition. After completion of investigation, Attaullah P.W.3 handed over the case file to the S.H.O. For submitting the challan in the Court for trial.
4. The accused was charged under section 13 of Arms Ordinance XX of 1965 or, 28-11-1995. He pleaded not guilty and faced trial. It was then that the prosecution produced the aforesaid P.Ws. i.e. Shair Wali (P.W.1), Madad A.I, S.H.O (P.W.2), Attaullah, S.I. (P.W.3) and Muhammad Bashir (P.W.4). Jam Nazir Ahmad Gazanvi D.D.A. Then closed the prosecution case after giving up Ghulam Nabi P.W. As unnecessary.
5. The case of the accused Azhar Iqbal who was examined under section 342, Cr.P.C. On 9-1-1996 was of simple denial. He denied the recovery of rifle P1, Magazine P2 and Bullets P3/1-12 from his possession and maintained that he was innocent and the P.Ws. Were all interested witnesses. He produced his real brother Zafar Iqbal as D.W.1 in his defence.
5-A. We have today carefully considered the evidence on record and have also given a patient hearing to the learned counsel for the appellant and the learned A.A.-G. We are of the convinced opinion that the prosecution very badly failed to establish with cogent, consistent and convincing evidence that the appellant was guilty of the offence with which he had been charged. In fact, the learned trial Judge did not consider it worth-while to look into the documents placed on record by Zafar Iqbal, D.W.1 for showing that rifle P1, Magazine P2 and Bullets P3/1-12 belonged to him as per Exh.DA which is the licence for possession of arms and ammunition having been issued by the Sub- Divisional Magistrate Khanpur on 23-2-1993 and it had not expired at the time when the recovery was effected. He also failed to appreciate that there was ample material on record to suggest that Muhammad Bashir P.W.4 was neither a natural witness of recovery nor could he be termed as a disinterested and independent witness and that the possibility of false implication of the appellant could not be ruled out, keeping in view the facts and circumstances of the case brought on record.
6. F.I.R. No.353 of 1995 against the appellant and his co-accused had been lodged by the father of Muhammad Bashir P.W.4, as admitted by the latter in reply to the very first question put to him in his cross-examination Mark-2 is the photo copy of the said F.I.R. a cursory glance through which shows that it had been lodged by Khair Din son of Sarbuland. He had alleged therein that he had taken certain land on 10 years lease in the year 1968-69 and had given the same to one Muhammad Arshad son of Muhammad Din for cultivation. He, however, took back the possession of this land from the said Muhammad Arshad in Rabi, 1995 and started cultivating this land himself.
On the day of occurrence i.e. 11-10-1995, certain persons named in this F.I.R. Including the aforesaid Muhammad Arshad, Zafar Iqbal D.W.1 and his brother Muhammad Javaid trespassed into this land, duly armed with formidable weapons and. Started cutting his cotton crop. It was on his report that this case under section 148/149/447/440/337-H(2), P.P.C. Was registered against the said accused.
Muhammad Arshad and Zafar Iqbal accused in the said case filed Writ Petition No.2538 of 1995 for quashment of this F.I.R. Claiming therein inter alia that Muhammad Arshad was eligible to remain in possession of this land up to Rabi 1998 as per the notification referred to in the order, dated 24-9- 1995 passed by Ch. Mumtaz Ahmad, Additional Commissioner (Rev.) Bahawalpur and Khair Din respondent was manoeuvring to dispossess him by taking resort to illegal methods including the registration of a false F.I.R. This writ petition was admitted to regular hearing on 18-10-1995. Another Writ Petition No.2539 of 1995 was also brought by Muhammad Arshad (aforesaid) against the S.S.P.
Bahawalpur and 5 others including Attaullah, S.I. (complainant in this case) arrayed as respondent No.6 therein, with the prayer that a direction be issued to respondent No.1 to have a case registered against respondents Nos.2 to 6. This writ petition came up for consideration before the Court on 29-11-1995 and a copy of the same was directed to be sent to the S.S.P. Bahawalpur with a direction to look into the matter personally and then ensure that if the facts narrated therein disclosed the commission of the cognizable offence, a case be registered against the culprits and the petitioner be afforded even-handed justice. Copies of both these writ petitions and the orders thereon are available on record as Exh.DC and Exh.DD. A photo copy of the order passed by Ch Mumtaz Ahmad, Additional Commissioner Bahawalpur referred to in the Writ Petition No.2538 of 1995 is also available as Mark-1.
7. Keeping all these documents in view, we are constrained to hold that Muhammad Bashir P.W.4, who can be termed as the only witness of recovery, is a liar and had no good reasons to be available at the time of the said recovery. He is a school teacher and on the day of occurrence, he went to school on duty. According to him, he attended the school up to 8-30 a.m. Whereafter he made an application for leave for the remaining time to the Centre Headmaster of the school at Chak No.53/DB which is situated at a distance of 5 k.m. From the place of recovery. Photo copies of the attendance register maintained at the said Government Primary School of Chak No.50/DB where this Muhammad Bashir is admittedly working as a teacher, have also been placed on record as Mark-4 (four sheets). Whenever he was on casual leave, it is so shown in the register. He was on casual leave on 15-10-1995 which was the day following the day of occurrence for obvious reasons.
We are not at all inclined to .Believe that he could attend the school at 8-00 a.m. On 14-10-1995 and then leave at 8-30 a.m. This entry 8-30 is obviously not genuine and appears to have been tampered with. If he claimed that he was on leave granted to him by the Headmaster, the prosecution should have placed on record documentary proof thereof or produced Headmaster as a P.W. To state so. Even otherwise a careful consideration of what he has stated in his cross- examination leads us to one and the only irresistible conclusion that he was bent upon making a false statement and his version is a bundle of lies. Ghulam Nabi who was conveniently made the other witness of recovery and was subsequently given up is the brother-in-law of this Muhammad Bashir and thus son-in-law of Khair Din, the complainant of F.I.R. No.353 of 1995. Muhammad Bashir P.W.4 also admitted the suggestion as correct that the Additional Commissioner (Rev.) had accepted the appeal in favour of Muhammad Arshad but he did not know the details and reasons for its acceptance. He also did not know whether the police took away this gun alongwith other articles from the house of Muhammad Arshad. It is also surprising to note that the police took him and Ghulam Nabi to the place of occurrence for arrest of Muhammad Arshad and Zafar etc. And when they reached in Rectangle No. 188, the police arrested them. He denied that the accused Muhammad Arshad was maternal nephew of his father but admitted that Zafar and Azhar were the relatives of Muhammad Arshad. He also denied that no recovery was effected from the possession of the accused. Persons do tell a lie but the facts do not. This is abundantly clear even from the cross-examination of Attaullah complainant P.W.3. If he be believed that he had gone to arrest the accused at Rectangle No. 188 alongwith Muhammad Bashir and Ghulam Nabi who were summoned from their houses for joining the investigation, how on earth did he know that some recoveries were also expected to be made.' Again as per his own version, many other persons of the locality had also come there when the accused was present in Rectangle No. 188, alongwith his other companions, for getting illegal possession of some land forcibly. Why did not he like to join independent and disinterested persons to witness the recovery of rifle alongwith magazine and bullets.
8. For all these reasons, we have no doubt in our mind that rifle P1, Magazine P2 and Bullets P3/1-12 were not at all recovered from the appellant and their recovery was wrongly planted on him with the added allegation that he could not produce the licence or permit for the same. The purpose behind all this manipulation obviously was to falsely involve him in a case under section 13 of the Arms Ordinance XX of 1965.
9. But taking the worst position, even if it be assumed that this rifle had been recovered from the possession of the appellant, he did not commit any offence in view of what has been laid down in a chain of authorities some of which are Hassan Khan v. The State PLD 1967 Pesh. 103, The State v.
Raidool PLD 1967 Pesh. 116 and State v. Muhammad Akbar Samejo 1992 SCM R 2310. Temporary possession of fire-arm on behalf of licensee cannot be termed as possession contemplated under section 13 of Arms Ordinance XX of 1965. The rifle belonged to the real brother of the appellant.
There is no evidence to suggest that the appellant had used it or intended to use it. In fact we failed to understand how did Azhar Iqbal become the accused in case F.I.R. No.353 of 1995. His name does not find mention in the F.I.R. It is only Zafar Iqbal who has been shown to be armed with pistol. One Muhammad Javaid was armed with a hatchet. Both of them have been shown to be the sons of Muhammad Latif case Bajwa. The names of their other co-accused mentioned in the F.I.R. Are Muhammad Arshad, Muhammad Saleem, Lal Din and Maujoo. Five/six other persons who are not nominated in the F.I.R. Were also armed with Dangs and hatchets. It was at about 11-40 a.m. That this report was lodged and the police left for the place of occurrence on the following day i.e. On 12-10-1995 at 8-00 a.m. How was then Azhar Iqbal required by the police in the said case and how did Attaullah come to know that he was present in Rectangle No.188 alongwith his other companions on 14-1.0-1995 for getting illegal possession of the land forcible. As we have already observed above, it is also questionable as to how and in what circumstances Attaullah sent for Muhammad Bashir and Ghulam Nabi P.Ws. From their houses through one of his subordinates when they were passing through Chak No.52/DB for joining the investigation. To us, all this story appears to be farce and cooked up version which is obviously a brain child of Attaullah S.I. We strongly deprecate the conduct displayed by this police officer in carrying out the investigation of case F.I.R. No.357 of 1995. In his endeavour to help the complainant party he became so over- zealous that he adopted a partisan role and implicated the appellant in spite of the fact that his name did not find mention in the F.I.R. As one of the accused. It is mainly on account of his dishonest investigation that the appellant faced trial and was convicted and sentenced in the long run. It is really a pity that the police officials/officers who display such conduct go unpunished and thus become instrumental in making a mockery of the entire system. A copy of this judgment be sent to the S.S.P., Bahawalpur with a direction to look into the antecedents of this officer and initiate appropriate action against him under intimation to this Court.
16. This discussion brings us to the irresistible conclusion that the conviction and sentence of the appellant cannot be upheld and are liable to be set aside. The result is that we accept this appeal, set-aside the conviction and sentence of the appellant and acquit him. He be set at liberty forthwith if not required in any other criminal case.