MUHAMMAD NASEEM CHAUDHRI, J.-This appeal is directed against judgment dated 17-6-1996 passed by Ch. Zahoor Hussain, Judge, Special Court. Gujranwala whereby he convicted and sentenced Muhammad Sharif to undergo R.1, for a period of five years and to pay a fine of Rs.20,000/- or in default of its payment' to further undergo R.I. For a period of six months under section 13 of the Arms Ordinance. 1965.
2. The facts of the prosecution case are that Maqbool Ahmad, S.I/In-charge Police Post Ferozewala Police Station Saddar Gujranwala (P.W.3) is said to be on 'gasht' of the area in the company of his subordinates when he received the information that one person was standing at P.I Rajbah while armed with 222 rifle. He. Reached there along with the police party and apprehended that person while in possession of .222 rifle P-1 for the keeping of which he could not produce the valid licence.
That person was none else than the appellant Muhammad Sharif son of Allah Ditta case Gujjar resident of village Ferozewala District Gujranwala; The appellant was arrested. The title P I along with magazine P-3 containing 24 cartridges Ex.P-2/1-24 were taken into possession by Maqbool S.I.
(P.W.3) vide memo Ex.PB attested by Muhammad Khalid, Head Constable No. 1082 (P.W.4.) and Inayat Baig. ASI. P.W. (given up). Maqbool Ahmad. S.I. Sent the complaint Ex.PA to Police Station Saddar, Gujranwala and Ayub Baig Moharrar, ASI, prepared formal FIR a copy of which is Ex.PA/1.
Maqbool Ahmed S.I. Prepared site plan Ex.PC of the place of recovery. Muhammad Riaz Head Constable No. 1687 Armour Police Lines, Gujranwala (P.W.1) inspected .222 rifle P-1 and gave his report Ex.PA to the effect that the same was semi-automatic rifle of .222 bore. After completing the investigation the challan was submitted.
3. At the trial Muhammad Sharif was charged under section 13 of the Arms Ordinance who pleaded not guilty thereto. The aforesaid four P.Ws, stood in the witness box and supported the prosecution case. Maqbool Ahmad S.I. (P.W.3) denied the suggestion that Muhammad Sharif appellant was passing in front of Police Post Ferozewala along with Mahmood Ahmad licence holder who were stopped when Mahmood Ahmad left for his village Machikay Goriah to fetch the licence of .222 rifle and that in his absence Muhammad Sharif was falsely involved in this case.
4. When examined under section 342 of the Code of Criminal Procedure, Muhammad Sharif appellant refuted the aforesaid recovery of rifle P-1, cartridges P-2/1-24 and Magazine P-3. He took up the plea that Mahmood Ahmad was the owner and the licence holder of rifle P-1 with whom he was going and was stopped by the police when Mahmood Ahmad was allowed to go to his house to bring the licence and that in his absence he was falsely involved. Ex.DA is the copy of the licence issued in the name of Mahmood Ahmad son of Inayat Ullah resident of Machikay Goriah, Tehsil and District Gujranwala. Muhammad Sharif did not choose to appear in the. Witness-box On oath in his defence under section 340(2) of the Code of Criminal Procedure. After hearing the parties and placing the reliance on the statements of the P.Ws, the trial Court convicted Muhammad Sharif appellant as narrated above, who has preferred this appeal which has been resisted by the State.
5. We have heard the learned counsel for the appellant as well as the learned counsel for the State and gone through the record before us. Following contradictions in the statement of Maqbool Ahmad S.I. (P.W.3) who prepared the recovery memo Ex.PB about the taking into possession of the un-licensed arms and the statement of Muhammad Khalid,H. C. (P.W.4) who attested recovery memo Ex.PB have been pointed out by the learned counsel for Muhammad Sharif appellant :-
(i) Maqbool Ahmad, S.I. (P.W.3) stated that he along with the police party left Police Post Ferozewala at 3.00 p.m., for patrol duty; that they reached the place of recovery of rifle P-1 at about 3.45 p.m.
That the sun used to set in the month of June at about 7.00 p.m. And that the time of recovery three hours still remained for the sun to set in while Muhammad Khalid '(P.W.4) stated that the sun was about to set in when the accused was apprehended by the police.
(ii) That M. Aqbool Ahmad, S.I. (P.W.3) stated that the place of recovery was at a distance of 2-3 furlongs from Police Post Ferozewala towards west while Muhammad Khalid (P.W.4) stated that the.
Police party received the secret information at Kotli Michrawan about the presence of Muhammad Sharif at Ful Rajbah and that village Kotli Michrawan was at a distance of one furlong towards west from the place of recovery.
6. With respect to the first contradiction learned counsel for the appellant argued that the difference of three hours regarding time of recovery cannot be taken lightly and that the same is enough to make doubtful the recovery of the illicit arms. With reference to the second contradiction he laid the emphasis that according to the statement of Maqbool Ahmad, S.I. The place, of recovery was towards the west from that place the S.I. Received the secret information while according to Muhammad Khalid H.C. (P.W.4) the place where the secret information was received was towards the west of the place of recovers . He continued that thus according to Maqbool Ahmad, S.I the secret information was received by him towards the east of the place of recovery' while according to Muhammad Khalid H.C. (P.W.4) the information was received towards the west of the place of recovery. He maintained that this contradiction is enough to falsify the recovery proceedings. He argued that the prosecution' has failed to connect Muhammad Sharif appellant with the alleged recovery of the illicit arms. He adopted the. Reasoning that even though the secret information was received by the Police about the presence of Muhammad Sharif appellant along with the illicit arms at P.I Rajbah, no effort was made by Maqbool Ahmad S.I. To associate any witness of the public in this case of raid which was planned well in advance and that due to this failure of the police in the matter, the statements-of Maqbool Ahmad S.I. (P.W.3) and Muhammad Khalid, H.C.(P.W.4) are not enough to establish the alleged fact of the recovery of the illicit arms vide memo Ex.PB. On the contrary, learned State counsel argued that the aforesaid type . Of discrepancies occur with the passage of time and that the same are not fatal to the prosecution case. He maintained that no person from the public would have liked to join the recovery proceedings and the police had no alternative but to proceed at his on end in the matter.
7, We are of the view that the contradictions pointed out and projected by the learned counsel for Muhammad Sharif appellant have the legal force and have gone to the root of the prosecution case for the purpose of exoneration of the appellant. The date of recovery is 17-6-1995 when the sun sets in after 7-00 p.m. According to Maqbool Ahmad S.I, (P.W.3) alleged recovery was effected at 3.45 p.m. While according to Muhammad Khalid H.C.(P.W.4) the recovery was effected when the sun was about to set in. Further according to Maqbool Ahmad S.I, the place of recovery of arms was towards the effected when the sun was about to set in. Further according to Maqbool Ahmad S.I the place of recovery of arms was towards the effected when the sun was about to set in.
Further according to Maqbool. Ahmad S.I. The place of recovery of arms was towards the effected when the sun was about to set in. Further according to Maqbool Ahmad S.I. The place ot recovery of Arms was towards the effected when the sun was about to set in. Further according to Maqbool Ahmad S.I. The place of recovery of arms was towards the received. Such type of glaring discrepancies falsify the prosecution case which cannot. Be taken lightly and in routine as convassed by the learned counsel tor the stale. These are held as fatal to the prosecution case especially when it is a case of solitary ingredient of recovery of illicit arms. Consequently, we hold that the Trial Court has not been able to dispose of the controversy in true perspective and that prosecution has failed to establish the case against Muhammad Sharif appellant.
8. At this stage we would be glossing over an important aspect of the matter by expressing that in such types of recovery it is necessary for the police to associate some person from the public and at least some effort must be made thereof, in case of negligence of the police to get the assistance and presence of some person from the public, no weight can be granted to the statements of the Police Officers who appear. As the prosecution witnesses in such matters of recovery. we would like to reproduce an important letter issued by the Registrar. Supreme Court of Pakistan, Rawalpindi, to meet such a situation, as under "J.P.32-R(S)r88-SCJ SUPREME COURT OF PAKISTAN RAWALPINDI, AUGUST 20. 1990.
From The Registrar.
Supreme Court of Pakistan.
Rawalpindi.
To, 1 the Inspector Genera! Of Police, Punjab. Lahore.
2. Tile Inspector-General of Police.
Sindh. Karachi.
3. The Inspector General of Police, N.W.F.P. Peshawar.
4. I he Inspector General of Police.- Baluchistan. Quetta.
SUBJECT WITNESSES OF RECOVERY OE CRIMINAL CASES.
Dear Sir, it has come to the notice of this Court that in a large number of criminal cases, the witnesses of recovery are front the Police force and that the Police Officers concerned when appearing before the Court are often unable to give satisfactory' explanation, why they failed to associate witnesses of the public in a case where the raid/recovery was planned well in advance. This Court has, therefore, directed that the requirement of associating non-officials witnesses in such cases should be impressed upon all concerned.
2. The Court has also directed in this context that the Courts should also examine to aspects of the issue in such cases. Is there a plausible explanation for not associating witnesses from the public; and whether some features of the cases in addition to the ocular account given by the police officials support the prosecution version when denied by the defence.
3. It is requested that the above orders of this Court should be brought to all concerned for strict compliance. .... Sd/- (M A. Latif).
9. The aforesaid letter was also sent to all the District and Sessions Judges posted in Punjab by the Registrar, Lahore High Court, Lahore through the despatch of following letter:- "LAHORE HIGH COURT LAHORE No. 17712-Genl/I-G Dated Lahore the 20th December, 1990.
From The Registrar, Lahore High Court, Lahore.
All the District and Sessions Judges, in the Province of Punjab.
SUBJECT:- WITNESSES OF RECOVERY IN CRIMINAL CASES.
Sir I am directed to forward herewith a copy of letter No. J.P.32-R(S)/88-SCJ, dated 20-8-1990, received from the Registrar, Supreme Court of Pakistan, Rawalpindi, on the subject noted above, for information and strict compliance by all concerned.
Yours Obedient Servant, Sd/- DEPUTY REGISTRAR (ADMN), FOR REGISTRAR.
Endst. Nq. 17713 Genl/I-G, dated Lahore the 20th December, 1990.
A copy is forwarded for information to:- The Registrar, Supreme Court of Pakistan, Rawalpindi, with reference to his letter No. J.P.32-R(S)/88- SCJ, dated 20-8-1990- Sd/- DEPUTY REGISTRAR (ADMN), FOR REGISTRAR."
10. There is no explanation on the record as to why Maqbool Ahmad, S.I. (P.W.3) failed to associate witnesses of the public in this case wherein the secret information was received before the recovery of the illicit arms as the public in the way was available on the road-side and the shops.
Obviously, the alleged raid/recovery was planned well in advance due to the secret information received by Maqbool Ahmad S.I.(P.W.3) especially when, as expressed above, the sole ingredient of alleged recovery of unlicensed arms is being analysed and dissected. We hold the view that the directions contained in the aforesaid letter dated 20-8- 1990, issued by the Registrar, Supreme Court of Pakistan, Rawalpindi, to the Inspector General of Police, Punjab, Lahore, are also binding on this Court. In the absence of any explanation as to why the witnesses of public have not been associated in the recovery proceedings in this case we hold that the alleged recovery has to be viewed with caution which has not been established by the prosecution on this ground.
11. For what has been said above, we hold that there was no justification to convict Muhammad Sharif appellant. We, therefore, accept this appeal, set aside the impugned judgment dated 17-6- 1996 and acquit Muhammad Sharif appellant. He shall 'be set at liberty forthwith, if no required in any other case.