' MUHAMMAD NASIM CHAUDHRY, J.--- This appeal is directed against the judgment, dated 16-10- 1996 passed by the Judge, Special Court, Suppression of Terrorist Activities, Faislabad-Sargodha Divisions at Faisalabad whereby Abdul Aziz alias Banarsi appellant son of Pir Hassan Caste Kata resident of Village Kata Abad, Tehsil and District Mianwali was convicted and sentenced to R.I. For seven years and to pay a fine of Rs,50,000 and in default of payment of fine to further undergo R.I.
For six months under section 13 of the Arms Ordinance, 1965.
2. The facts giving rise to this appeal are that on 25-12-1995 Dil Muhammad, Inspector/S.H.O., Police Station Daudkhel (P.W.3) is said to be present in the area in connection with the service of summons when he received a secret information that a person was present in his area while armed with Kalashnikovs. He organized the raiding party and went to that place where that person was present at that time. The police party as well as Muhammad Jan (P.W.4), from the public, accompanied him. He surprised that person (appellant) and apprehended him. The Kalashnikov P.1 along with loaded magazine P.2 from which 16 live cartridges P.3/1-16 were recovered after unloading, were taken into possession vide memo. Exh.P.B. Attested by Muhammad Jan (P.W.4) and Tariq Javed, A.S.-I. P.W. (not produced). The appellant could not produce the license to keep the fire-arms with him. The same were sealed in a parcel. S.H.O. (P.W.3) drafted complaint Exh.P.A. And sent the same to Moharrir at Police Station Daudkhel where formal F.I.R. Exh.P.A./1 was prepared by Darvesh Khan Moharrir Head Constable (P.W.1) containing his notes Exh.P.A./2. The site plan Exh.P.C.
Of the place of recovery was also prepared by the S.H.O. The sealed parcel was handed over to Darvesh Khan, M.H.C. (P.W.1) who delivered the same to Zarif Khan, Constable (P.W.2) which he delivered in the Office of Forensic Science Laboratory, Lahore from where report Exh.P.D. Was received to the effect that the Kalashnikov recovered from the appellant was an automatic weapon. After completing the investigation the challah was submitted.
3. The appellant was charged under section 13 of the Arms Ordinance, 1965 who pleaded not guilty thereto. At the trial the aforesaid P.Ws. Stood in the witness-box and supported the prosecution case. When examined under section 342 of the Code of Criminal Procedure the appellant claimed to be innocent and termed the aforesaid recovery of aforesaid illicit arms as false. He did not claim the ownership of illicit arms. He adduced in his defense documents Exhs.D.A. To D.D./1 as well as Mark 1 to Mark 5. Mumtaz Ahmad, Inspector (D.W.2) and Mr. Abdullah Khalid, S.P. Range Crimes, Sargodha (D.W.1) were produced in defense by the appellant who after investigation had declared the appellant as innocent and recommended for the discharge of the appellant after cancellation of the case.
4. However, after giving weight to the statements of S.H.O. P.W.3 and the recovery witness Jan Muhammad P.W.4, the learned trial Court convicted the 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 State Counsel and gone through the record before us.
6. There is no need to reproduce the arguments addressed by them. We hold the view that the impugned judgment is simply a laboured judgment and the same cannot be sustained for our following reasons:--
(i) The alleged recovery is held to be false and fictitious on the simple ground that Muhammad Jan P.W.4 has admitted in his cross-examination that a case under section 364, P.P.C. And under Article 10/18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was registered against him at Police Station Daudkhel which means that he was under the influence and pressure of the Police i.e. The S.H.O., Police Station Daudkhel (P.W.3). Even otherwise, an accused of a case, in normal routine, is not associated as a recovery witness in such-like recovery proceedings by the Police.
Further, in his cross-examination Muhammad Jan P.W.4 has specifically stated that he signed the recovery memo. Exh.P.B. In the Police Station and that his signatures were obtained by Tariq Javed, A.S.-I. It can safely be deduced that the recovery memo. Was not prepared at the alleged place of recovery. This aspect of the matter has stolen the eminence to go to the very root of the alleged recovery proceedings. It is simply surprising that the appellant has been convicted on the basis of the aforesaid material.
(ii) The statements of Mumtaz Ahmad, Inspector D.W.2 and Mr. Khalid Abdullah, S.P. D.W.1, who also investigated the ease at the directions of the D.I.-G., Sargodha Range Sargodha, cannot be ignored who had declared Abdul Aziz alias Banarsi as innocent and had recommended for the cancellation of the F.I.R. As well as the discharge of the appellant. The aforesaid aspect of the matter has also made out the falsehood of the prosecution case.
(iii) Our view is that in the ordinary course of working an Inspector does not go in the area of the purpose of service of the proclaimed offenders and at the best up to the rank of A.S.-I. This type of duty is performed. It shows that the Inspector/S.H.O. Police Station, Daudkhel (P.W.3) has proceeded in the matter with mala fides. Mr. Khalid Abdullah, S.P. D.W.1 had recommended for the initiation of departmental inquiry agianst Dil Muhammad, Inspector/S.H.O., Daudkhel (P.W.3).
7. For what has been said above, we hold that the prosecution case is false and Abdul Aziz alias Banarsi appellant is innocent. We, therefore, accept this appeal, set aside the impugned judgment and acquit Abdul Aziz alias Banarsi appellant who shall be released forthwith, if not required to be detained in any other case.