Zafar Iqbal alias Azhar appellant was sent up to face trial in case F.I.R. No. 166 registered at Police Station Chak Baidi, District Pakpattan Sharif on 8-7-2001 for an offence under section 7 of the Surrender of Illicit Arms Act, 1991. The learned trial Court vide judgment, dated 2-4-2002 convicted the appellant under section 7(c) of the afore-referred Act and sentenced the appellant to rigorous imprisonment for seven years. Benefit of section 382-B, Cr.P.C. Was extended to the appellant.
Feeling aggrieved, through the instant appeal the appellant Zafar Iqbal has challenged his sentence and conviction.
2. The relevant facts are that on 8-7-2001 at about 7-45 p.m. Imdad Ali, S.-I./S.H.O., Police Station Chak Baidi, District Pakpattan Sharif was present alongwith other police officials at Chowk Sikandar, when he saw the appellant coming from the Depalpur Road who tried to slip away after seeing the police party but was apprehended and on his search a pistol .30 bore Exh. P.1 was recovered from the fold of the trouser worn by the appellant. The same was taken into possession vide memo.
Exh.P.A. Thereafter Imdad Ali , S.-I./ S.H.O., P.W.1 drafted the complaint Exh. P.B. Which led to the registration of formal F.I.R. No. 161/01 Exh. P.B./1.
3. During the trial the prosecution produced four witnesses in support of its case. Imdad Ali, S.-I., P.W.1 stated about complaint as well as recovery and investigation. P.W.3, Muhammad Aslam Khan, A.S.-I. And P.W.4 Constable Mehmood Ahmad appeared as recovery witnesses while P.W.2 stated about formal registration of case.
4. In his statement under section 342, Cr.P.C. The appellant denied the recovery and produced D.W.1 Muhammad Yasin and D.W.2 Muhammad Aslam as defence witnesses and closed his case. The appellant, however, did not testify as envisaged by section 340(2), Cr.P.C.
5. The learned counsel for the appellant has submitted that only the police officials have been produced to support the recovery, that their statements were at variance, that in fact the petitioner was roped in this case due to enmity and no recovery was effected from him. On the other hand, the learned counsel for the State has supported the conviction on the grounds that the police witnesses were also competent witnesses and their evidence could not be brushed aside on the basis of their being police officials, that the P.Ws, had no enmity to involve the appellant in the case falsely.
6. I have heard the learned counsel for the parties and have gone through the entire evidence including the judgment with due care. A perusal of site plan Exh. P.C. Shows that the place of recovery was a Chowk and was a very well populated area. The P.Ws. Admitted that there were number of shops around the place of recovery. Despite this fact none from the public was associated with the recovery proceedings in clear violation of section 103, Cr.P.C. According to P.W.1 who is author of the complaint when he apprehended the appellant the shopkeepers from all around assembled but he did not cite any one as a witness. On the contrary, P.W.3, Muhammad Aslam, A.S.-I. On this point stated that all the shops were closed and, therefore, no one from the locality was called. P.W.4, admitted that they apprehended the appellant in the evening. All these circumstances make it clear that at the relevant time although pubic witnesses were available yet they were not made witnesses deliberately. One Muhammad Yasin resident' of Chak No. 67-D was mentioned in the recovery memo. As a witness but this witness appeared as D.W. And did not support the prosecution case. Even otherwise, according to P.W.3 he had spent the day in Chak No.67-D and according to P.W.1 the same was at a distance of 3 to 4 miles from the place of occurrence. In these circumstances it cannot be said that D.W. 1 who was mentioned as P.W. Was a witness from the locality.
7. The recovered pistol was never sealed and no parcel was made. The same was never sent to any arms expert to prove that the pistol was in working condition or not. There is another peculiar circumstance in the case that neither the recovered pistol was loaded nor any bullets were recovered. It is hard to believe that a person would carry unloaded pistol to invite trouble. The target date for deposit of illicit arms was 30-6-2001. There is nothing on record to show that the pistol recovered was it possession of the appellant prior to 30-6-2001. Therefore, the provisions o section 7 of the afore-referred Act were no attracted in the circumstances of the case.
8. For what has been discussed above I am of the considered opinion that the prosecution has failed to prove its case beyond doubt. Therefore, I allow this appeal, set aside the judgment, dated 2-4-2002. The appellant is acquitted of the charge and would be released from jail forthwith if not required in any other case.