MUHAMMAD NASEEM CHAUDHRI, J.- This appeal is directed against judgment dated 18.10.1995 passed by Ch. Tajammal Iqbal Kamboh, Judge Special Court. Suppression of Terrorist Activities, Faisalabad-Sargodha Divisions at Faisalabad whereby he convicted and sentenced Gul Nawaz appellant son of Gulbaz caste Pathan aged 35 years resident of village Tani Khel Dakhli Kamar Mashani District Mianwali to undergo R.I. For a period of 7 years and to pay a fine of Rs. 50,000/- or in default of its payment to undergo further R.I. For a period of one year u/S. 13 of the Arms Ordinance, 1965.
2. The facts giving rise to this appeal are contained in complaint Ex.PB drafted by Shafqat Ullah, S.I./SHO Police Station Dawood Khel District Mianwali (P.W.2) on the basis of which Khan Amir Moharrar AS1 (P.W. 1) prepared the formal F.I.R. Ex.PA/1. According to the recitals of complainant Ex.PA Shafqat Ullah, SHO (P.W. 2) in the company of Ahmad Khan, A.S.I. (P.W. 3), Sikandar Khan (P.W.
Given up), Nisar Ahmad, Constable No. 346 and Khan Muhammad, Constable No. 801 was going towards Pull Kala Bagh in official vehicle No. M1 9677 being driven by Muhammad Khan driver at 9.30 p.m. On 3.7.1989. They reached near Chowk Mari Indus. They saw one person holding the klashnikov in his right hand who was in a wagon. He was none else that Gul Nawaz appellant son of Gulbaz who was apprehended. The S.H.O. (P.W. 2) recovered klashnikov among P2 to P7 and Bandolier P3 containing 4 spare magazines P4 to P7 all loaded with live cartridges PI to P7 which contained in all live cartridges PI to P7 which contained in all live cartridges P8/1-214. The aforesaid articles were taken into possession by the S.H.O, vide memo. Ex.PB attested by Ahmad Khan, AS1 and Sikandar, ASI (given up). Gul Nawaz appellant could not produce any licence or permit to keep the klashnikov PI and the cartridges P8/1-214 under his possession. He arrested Gul Nawaz. He drafted complaint Ex.PA and sent the same to Police Station Dawood Khel for registration of the formal FIR where Khan Amir; AS1 (P.W. 1) prepared formal FIR (Ex.PA/1) Bearing No. 92, dated 3.7.1989 under section 13 of the Arms Ordinance, 1965. Site Plan Ex.PC was prepared by Shafqat Ullah. S.H.O.
(P.W. 2). After completing the investigation the challan for the prosecution of Gul Nawaz appellant was submitted before the trial Court.
3. Gul Nawaz appellant was charged under section 13 of the Arms Ordinance, 1965 for keeping the unlicensed aforesaid arms mentioned in the Schedule to the Suppression of Terrorist Activities (Special Courts) Act, 1975 for which trial Court was competent to hold the trial. He pleaded not guilty thereto. At the trial the aforesaid three P.Ws, belonging to the Police Department appeared^ the witness-box and supported the prosecution case. Shafqat Ullah, S.H.O. (P.W. 2) and Ahmad Khan, A.S.I. (P.W. 3) deposed unanimously, when cross-examined, that they did not remember as to whether they entered the fact of their departure from the Police Station in the Daily Diary. It occurs in the cross-examination of Shafqat-Ullah, S.H.O. (P.W. 2) that he did not note the Registration Number of the Wagon, that some passengers were present in the said wagon but he could not give their number and that he had not noted the names of the driver, conductor and the passengers of the said Wagon as it left Indus Mari Chowk after dropping Gul Nawaz accused. He stated that he mentioned in complaint Ex.PA that Gul Nawaz alighted from the Wagon. When confronted with complainant Ex.PA it was not recorded that Gul Nawaz alighted from Wagon. He admitted that Naz Cinema and Toll Tax post were situated on both sides of the road and just close to the place of recovery. He stated that he had not shown the main gate of the Cinema and its boundary wall in the Site Plan Ex.PC. He stated that he had not cited any employee of Toll Tax Post as a witness in the case. He stated that he could not recover the fare Ticket from the accused after his personal search. He denied the suggestion that lie had recovered the case property from the Wagon parked at Chowk Mari Indus titter its passengers had gone for refreshment in Naz Cinema, that he went to the Cinema to trace out the owner of the illicit arms and that in his absence the driver drove away the Wagon. Ahmad Khan, ASI,(P.W, 3) denied the suggestion that he ;is well as Sikandar Khan (P.W.
Given up) were neither present with Shafqat Ullah, S.H.O, nor klashinkov etc. Were recovered in their presence. He denied the suggestion that in order to show the efficiency of the police, fake recovery was shown and false prosecution version was concocted.
4. After hearing the parties the trial Court gave the weight to the statements of the P.Ws, by expressing that the Police Officials were credible and good witnesses for recovery whose statements have established that the illicit arms (Ex.PD, spare magazines and live cartridges were recovered from Gul Nawaz appellant. Consequently the appellant was convicted as narrated above. Hence this appeal which has been resisted by the State.
5. We have heard the leamed counsel for the appellant as well as the learned State counsel and gone through the record before me. Leamed counsel for the appellant argued that according to complaint Ex.PA Gul Nawaz appellant was sitting in the Wagon while klashinkov PI was in hand which is unnatural type of conduct placed by the Police before the trial Court as it cannot be expected that unlicensed klashinkov would openly be displayed in the aforesaid manner. He added that the registration number of the vehicle was not noted by the S.H.O, who also did not obtain the respective name of. The driver, the conductor and all the passengers. He maintained that even the Fare Ticket was not taken into possession by the S.H.O. He canvassed that no independent person as required under section m of the Code of Criminal Procedure was joined at the time of the recovery of the illicit arms when memo. Ex.PB was prepared especially when the post of collection of Toll Tax and the Cinema were close to the place of recovery. He continued that it was a false case which was coined and cooked up by the police to show the fake efficiency. On the contrary, leamed State counsel argued that Gul Nawaz appellant alighted from the bus who was apprehended and over-powered by the police and that there was no occasion to get the registered number of the vehicle as well as the names of the driver, conductor and the passengers.
According to him the persons present at the post for collection of Toll Tax were not joined as the public is not willing to help the police in such matt?-: and that the Police Officers being respectable persons are as good witnesses as witnesses from the public.
6. We are, however, of the view that the assertions raised by the leamed counsel for the appellant have to prevail. It is not recorded in the F.I.R, that Gul Nawaz appellant was overpowered when he alighted from the Wagon and the driver drove the same immediately. PW.2 was confronted with Ex.PA who stated that he had mentioned in complaint Ex.PA that Gul Nawaz alighted from the Wagon. However, when confronted it was not mentioned that the accused alighted from the Wagon. This aspect of the matter has to play the vital legal role to adversely affect the prosecution case. In the F.I.R, it is narrated that klashnikcv was in the hand of the appellant while he was sitting in the Wagon and the remaining illicit arms were in bag P2 which were taken into possession. This type of .Conduct of an accused as projected by the prosecution is unnatural and cannot be expeueu which has to steal the eminence for the purpose of his exoneration. The important aspects are that the registration number of the vehicle was not noted by the S.H.O, who also did not inquire about the names of the driver, the conductor and all the passengers. The independent witness in the form of the driver and the conductor were available. There is no explanation on the record to make out that the driver of the vehicle, its conductor and the persons working at the post for the collection of Toll Tax were asked by the Police to join the investigation and to witness the recovery memo, who did not agree to the same. Rather it is not the case of the prosecution. All the Police Officers of all ranks are respectable persons. However, the law has to take its course. To exemplify the confession of an accused person before any Police Officer of any rank about a case triable by the trial Court or by the Court of general jurisdiction is inadmissible in evidence in view of Article 38 of the Qanoon-e- Shahadat Order, 1984. In view of the availability of the independent persons at the spot at the alleged time of the alleged recovery of the illicit arms and in the absence of any explanation about their non-joining or non-participation, the alleged recovery' of the illicit arms can safely be held to be violative of law and section 8 of the Suppression of Terrorist Activities (Special Courts) Act, 1975 shall not play the legal role against Gul Nawaz. At this stage I have to express that the Registrar, Supreme Court of Pakistan, Rawalpindi addressed a letter dated 20.8.1990 to the respective Inspector/General of Police, Punjab, Sindh, N.W.F.P., and Baluchistan, a copy of which was sent to all the District and Sessions Judges in the Province of the Punjab by the Registrar, Lahore High Court, Lahore. Yhe aforesaid letters are reproduced in toto as under:--