' ABDUL HAFEEZ CHEEMA, J.--- Muhammad Yousaf (30) son of Abdul Majid, Rajput, religious teacher, resident of village Rousa Bhehl, Police. Station Sadar, Raiwind was in custody of Police Station Model Town, Lahore in case F.I.R. No, 571/91 under section 382, P.P.C. Read with section 17 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979. During interrogation he disclosed that he was in possession of an illicit klashnikov and 15 bullets which he had concealed in his room attached to the mosque of his village. Haji Muhammad Aslam, Inspector/S.H.O. (P.W.4) constituted a raiding party consisting of Muhammad Farooq, S.-I. (P.W.2), Akbar All (P.W.3) and few other police officials and raided the premises in the village. The accused led to the recovery of klashnikov (P.1) and 15 bullets (P.2/1-15) in a magazine from a wooden box (P.3) lying under a few Chatais in his Hujra. The accused was challaned after the usual investigation.
2. In order to prove their case the prosecution examined Muhammad Aslam, Inspector (P.W.4), Muhammad Farooq, and Akbar Ali, S.-Is. C.I.A. Police Station Model Town, Lahore (P.Ws. 2 and 3).
3. Supporting the version of the police, Muhammad Asian', Inspector (P.W.4) reiterated the story given in the F.I.R. In cross-examination he, however, stated that he did not associate any person from the village or the mosque itself while effecting the recovery of the weapon. He entered the Hujra from the outer door which did not open in the courtyard of the mosque. The entire police party did not enter the room of the accused only he and two other S.-Is. Went inside. The wooden box (P.3) according to him, was not fitted with a hook.
4. Muhammad Akbar, S.-I. (P.W.2) in his statement-in-chief endorsed the story of Muhammad Aslam (P.W.4) but in cross-examination he was sufficiently shaky and could not tell the name of the Head Constable or the Constables who were present at the time of the interrogation of the accused. According to him the door of the Hujra was not locked and it was open when the police party went there. He, however, did not recollect if any window was there in the Hujra. According to him there were 10/11 mattresses in the Hujra under which the wooden box (P.3) was lying. According to .Him wooden box was fitted with Kundi and was not locked. According to him there were almirahs for keeping Holy Qur'ans in the Hujra but he was unable to tell their number and number of Holy Qur'ans which were also placed in the Hujra. According to hini he did not see any cot or any articles of the students lying in the Hujra, whereas Muhammad Aslam, Inspector (P.W.4) says that cot was lying there, whereas according to Muhammad Farooq, S.-I. (P.W.2) only 3/4 mattresses were lying over the wooden box (P.3). The recovery proceedings, according to him were conducted in Hujra, whereas according to Muhammad Aslam (P.W.4) he completed these proceedings in the courtyard of the mosque. Muhammad Farooq, S.-I. (P.W.2) also stated that he neither saw any Charpai, nor any almirah in the Hujra, whereas Akbar Ali, S.-I. (P.W.3) contradicts him saying that almirahs were lying in the Hujra and Holy Qur'ans had also been placed in them. According to Muhammad Farooq, S.-I. (P.W.3) it was Asar prayer time but he was not aware as to whether Azan had been called or not, whereas Haji Muhammad Aslam, Inspector (P.W.4) says that regular Namaz had taken place. All these witnesses denied that the proceedings were fake and the accused has been wrongly implicated in the case and the recovery has been wrongly planted upon him.
5. It has been contended by the learned counsel for the appellant that this is a totally fake case and in order to contain and control the sectarian feelings in the Province in those days there was a move to make arrests in order to deter the people from entering into such activities and as such the accused like the others had been falsely implicated and the proceedings had altogether been taken in the police station. The discrepancies pointed out above, according to him, show and show clearly, that none of them went to the mosque. One says that there was a cot and admirals with Holy Qur'ans, whereas the other says that were no admirals and no cot and yet another Police Officer says that Asar prayer had been held and the other one says that it was yet to be held. P.W.2 Muhammad Farooq, S.-I. Says that there were only 3/4 mattresses over the wooden box in which Kalashnikovs had been concealed, whereas P.W.3 Akbar Ali, S.-I. Says that there were 10/11 mattresses. There is equally a big difference between all the statements of the P.Ws. With regard to the presence of a hook over the wooden box (P.3) P.W.3 Akbar Ali, S.-I. Says that it was hooked, whereas according to Muhammad Aslam, Inspector (P.W.4) there was no hook. All this shows that none of them had visited the place and proceedings were conducted somewhere else.
6. It was submitted by the learned counsel for the appellant that although the police has now totally disregarded the compliance of the mandatory provisions o.E., section 103, Cr.P.C.
Nevertheless in a place like a village mosque the people could have witnessed the recovery of such a thing and they could have supported the truth but they neither called any member of the Union Council nor any other respectable of the village nor any Namazi to witness the recovery and had banked upon the officials taken from Lahore. In the peculiar circumstances of this case the police could have associated the witnesses from the village which they have not done. This, therefore, depicts the hollowness of the prosecution stand. It was also pointed out that Hujra was not locked, the box in which allegedly the Kalashnikovs had been placed was equally not locked and the Hujra which opened towards Bazar, as such was accessible to everyone, whereas the accused was admittedly in the custody of the police for the last six days. Hence this recovery cannot be attributed to him. In this view of the matter it is clear that the prosecution has failed to connect the appellant with the crime. The appeal is, therefore, accepted and the appellant acquitted of the charge. He shall be set at liberty forthwith, if not required to be detained in any other case.