M. NAEEMULLAH KHAN SHERWANI, J.---Ghaus Bakhsh son of Qadir Bakhsh was tried by a learned Special Judge, Suppression of Terrorist Activities (Special Courts) Act, 1975, Dera Ghazi Khan Division Dera Ghazi Khan for retaining in his possession an unlicensed Kalashnikov alongwith three live cartridges. Through his judgment dated 8-6-1999, the said learned Judge found him guilty of the said charge, convicted him under section 13 of the West Pakistan Arms Ordinance No. XX of 1965 and punished him which rigorous imprisonment for three years and a fine of Rs.10,600 or in default thereof to further under S.I. For three months. Benefit of section 382-B, Cr.P.C. Was, however, extended to him.
2. By filing this appeal, the convict has called into question conviction and sentence passed against him.
3. Prosecution version in brief is that on 24-10-1998 at 5-30 p.m., Iftikhar Ahmad, Defedar alongwith Abdul Rashid, N/D, Dost Muhammad Sawar, Malkiman, Jan Muhammad and Said Khan was available in village Dohi near the house of one Murad son of Eisa. He was carrying out investigation of case F.I.R. No. 10 of 1998, under section 380/34, P.P.C. The appellant in presence of the witnesses appeared before him and produced a Kalashnikov alongwith two magazines and three live cartridges, which were taken into possession through a memo. Duly attested by the witnesses. The appellant did not produce a valid licence for retaining in his possession the abovesaid arms and ammunition, Iftikhar Ahmed, Dafedar accordingly drew up complaint (Exh.PB) and despatched the same through Dost Muhammad, Sawar to the police station for registration of formal F.I.R. On receipt of complaint (Exh.PB), Najeebullah, Muharrir Sawar, Police Station B.M.P. Phugla, District Dera Ghazi Khan recorded formal F.I.R. (Exh.PB/1) correctly without any addition or substraction on his part. Kalashnikov rifle is Exh.Pl and live cartridges are Exh.P2/1-3. Recovery memo. Prepared by Iftikhar Ahmed, Defedar is Exh.PA.
4. The Investigating Officer conducted the spot inspection and prepared a site-plan of the place of recovery (Exh.PC). He also recorded statements of all the relevant witnesses, who were duly associated by him with the investigation of this case. After the uptill task of investigation had been completed, the Investigating Officer prepared challan of the case and submitted the same to the Court for trial of the accused in accordance with law.
5. On receipt of the challan, the Trial Court formulated charge against the appellant, who pleaded not guilty to the same and claimed to be tried. Then the prosecution was called upon to adduce evidence to prove charge against the appellant beyond any shadow of doubt.
6. In order to achieve this object, prosecution produced Jan Muhammad (P.W.1) as a recovery witness. In his statement, he narrated the story of recovery of the arms and ammunition.
Thereafter, Iftikhar Ahmad, Defedar, complainant of the instant case, appeared as P.W.2. He whole- -heartedly stated all the facts relating to investigation carried out by him. He also identified the handwriting of Najeebullah, Muharrir, as he had been working with him. He proved the formal F.I.R.
(Exh.PB/1) recorded on the basis of complainant (Exh.PB) by stating that it was Najeebullah, Muharrir, who had recorded it. Learned Prosecutor gave up all the remaining prosecution witnesses being unnecessary and declared the prosecution case close.
7. Now most important job to be accomplished by the Trial Court was to examine the accused according to the relevant provisions of section 342, Cr.P.C. In order to provide him a sufficient opportunity to explain all thus, incriminating circumstances appearing against him on the surface of evidence. He vehemently controverted all the allegations brought against him. In an answer to Question No. 13 in his statement, he stated as under:-- "The Dafedar has falsely involved me in this case on 'the asking of Mulkayman Qaisrani because he had suspicion that 1 had committed theft in his shop. A woman of Qaisrani Tribe had eloped away with my elder brother and the said woman was later on returned. After this occurrence my brother went to Karachi and I was arrested by the police. Nothing was recovered from me. Dafedar P.W.
Also belongs to Qaisrani Tribe."
The appellant did not opt to make a statement on oath under section 340(2), Cr.P.C. In disproof of the allegations levelled against him. He also expressed his desire not to adduce any evidence in his defence.
8. After due consideration of all the facts and circumstances, the learned Trial Judge convicted and sentenced the appellant as aforementioned.
9. Learned counsel for the appellant has raised following points for our consideration.
(i)That both the witnesses had made highly contradictory statements and, as such, no explicit reliance could be placed upon their testimony. Furthermore, there was a flagrant violation of section 103, Cr.P.C., as no independent person of the locality was either joined in the investigation or produced by the prosecution during the trial to prove the factum of recovery of incriminating articles.
(ii)That the recovery was extremely doubtful as the appellant was not in police custody at the time of recovery.
(iii)That a false case had been foisted upon the appellant because of animosity with the people around.
10. Conversely, learned State counsel argued that recovery was genuine and the police had no animosity with the appellant and that he rightly stood convicted and sentenced by the learned Trial Judge.
11. We have exhaustively examined facts and circumstances of this case in their entirety. We have also studied statements of the prosecution witnesses with much care and attention for doing weighment of the evidence. We find that Jan Muhammad (P.W.1) and other recovery witnesses, who have been dropped by the prosecution, do not belong to the locality of recovery. Jan Muhammad P.W. Is always available at the call of Ifikhar Ahmad (P.W.2). It is rather customary with P.W.2 to call Jan Muhammad and associate him in the investigation of cases conducted by him. In this view of the matter, he cannot be designated as an independent disinterested witness. Both the witnesses belonged to the Qaisrani Tribe, with whom the appellant has alleged grudge, malice and spite. It was not virtually impossible for the Investigating Officer to have called the most independent disinterested respectable persons of the locality to remove the impression that these were not the sham proceedings.
The prosecution story, from the face of it, appears to be absurd, ridiculous fantastic, unnatural and improbable one, owing to the fact that no stolen articles could be recovered from possession of the appellant and he himself voluntarily appeared before the Investigating Officer with the arms and ammunition in question. This really does not appeal to the reason and logic. People on coming to know of the arrival of the police generally take out their heals and do their best to cause destruction of the evidence linking them with the crime in questions. The statements of both the eye-witnesses do not coincide with each others as regards time, place of recovery and the place from where the prosecution witnesses joined the Investigating Officer. They have made highly prevaricating statements. This fact constitutes a sufficient ground for en bloc rejection of their evidence. The Investigating Officer is naturally interested in the success of his case. The other witness is his close friend. The prosecution witnesses also do not hail from that locality.
12. The cumulative effect of all these facts and circumstances in that the prosecution story ceases to be trustworthy. The witnesses are wholly unrelaible and it would be highly dangerous to rely upon their voucher in the criminal administration of justice. Hence, their evidence is -discarded.
The prosecution version suffers from serious defects, which strike at the very root of the case.
Accordingly we are not inclined to maintain conviction and sentence of the appellant.
13. By accepting this appeal we order acquittal of the appellant. He be set at liberty forthwith if not required to be detained in any other case.
H.B.T./G-95/L.