1. RIAZ AHMAD, J.---The appellant, Imran Tahir Pervaiz alias Peja, was tried by a Special Court constituted under the Suppression of Terrorists Activities Act, 1975, on a charge under section 13 of the Arms Ordinance XX of 1965. Vide Judgment dated 12-5-1991, the appellant was found guilty on the aforesaid charge and was, thus, convicted and sentenced to undergo R.I. for a term of six years and to pay a fine of Rs,30,000 or in default thereof to suffer R.I. for a term of one year aggrieved by his conviction and sentence, the appellant has preferred this appeal which shall be disposed of by this Judgment.
2. 2.The prosecution case is that on 27-11-1990, a secret information was received disclosing that the appellant was in possession of unlicensed Arms and ammunition. Riaz Ali Shah S.1. (P.W.3) formed a raiding party consisting of Sana Ullah S.I. and other police officials and at about 9.50 p.m. on the said day, the police party went to village Badru Gati, where they found two persons. The appellant was one of them. He was having a sten-gun with him. The appellant was apprehended and in consequence, a sten P.1 and 10 live bullets P.2/1-10 were recovered from him and taken into possession vide memo. Exh.PA. The recovery was attested by Riaz Ali Shah S.I. and Sana Ullah S.I.
3. The complaint Exh.PB was prepared and sent to the Police Station where the formal F.I.R. Exh.PB/1 was recorded and thereafter the appellant was sent up to face, his trial.
4. 3.To prove its case, at the trial, the prosecution placed reliance upon the testimony of Riaz Ali Shah S.I. (P.W.1) and Sana Ullah S.I. (P.W.2). The appellant in his statement under section 342, Cr.P.C. denied the allegation levelled against him and pleaded his innocence.
5. 4.At the very out-set, learned counsel for the appellant drew our attention to the fact that the appellant was taken away by the police in the month of August, 1990 and despite continuous search, he could not be found out. Thus, his mother, Mst. Naziran was constrained to file a petition for Habeas Corpus in this Court. The said petition for Habeas Corpus vide Writ Petition No,7220 of 1990 was heard and a report was called for wherein the S.S.P. and other Police Officials denied the abduction of the appellant by appearing before this Court. On this, Court directed that a case be registered with regard to disappearance or abduction of the appellant. It is contended by the learned counsel that the appellant and his relatives were threatened with dire consequences and as such they did not take any steps towards the registration of a case against the accused. It is, therefore, argued that with a view to take his vengeance and also as a re-action to the petition of Habeas Corpus, the police registered this false case against the appellant and the sten-gun was planted upon him.
6. 5.With the assistance of learned counsel for the parties, we have carefully read the entire evidence available on the record. After carefully reading the statements of both the prosecutipn witnesses, we note that their testimony is discrepant and is contradictory to each other. There are material contradictions in their evidence as to the <u>mode and manner</u> and time of the recovery in this case. First of all, we are not at all prepared to believe that the appellant would be sitting with a sten-gun in an open plot in the very midst of a populated area. Riaz Ali Shah Si. stated that he received the secret information in the Police Station but in the Court he deposed that he received the said information on a Petrol Pump. When confronted with Exh.PB, he immediately corrected himself without any hesitation. Similarly, the manner in which they proceeded to conduct the raid is also not worthy of any credence inasmuch as Sana Ullah P.W.2 stated that the Police Party went to conduct the raid on foot while Riaz Ali Shah deposed that they reached there by a Suzuki Car which was driven by him. It is in the evidence that the witness does not possess a driving licence. He also stated that it was a Suzuki Van and not a Suzuki Car,. Furthermore, we also note that Riaz Ali Shah mentioned that recovery had taken place after 9.00 p.m. while Sana Ullah stated that it was evening time, when the recovery took place. The place of recovery is a village at Band Road which is admittedly a populated area but unfortunately, no witness from public was cited by the prosecution. Considering the background of this case, particularly the filing of writ of Habeas Corpus and the discrepancies in the statements of the two prosecution witnesses, we are of the view that the prosecution evidence does not inspire confidence and certainly it cannot be believed to sustain conviction of the appellant. In consequence, this appeal is allowed and the conviction and sentence of the appellant are set aside. He shall be set at liberty forthwith provided of course he is not needed in some other criminal case.