1993 P Cr (PLP)

SH. IJAZ NISAR, J.

Shafqat Ali (35/36) was tried by the Presiding Officer, Special Court No.II, Suppression of Terrorist Activities, Sargodha, under section 13 of the Arms Ordinance XX of 1965. By judgment dated the 22nd of July, 1992, the learned trial Court convicted him under the aforementioned section and sentenced him to seven years' R.I. and to pay a fine of Rs.30,000 or in default to undergo one year's R.I. with benefit of section 382-B, Cr.P.C. He has appealed.

2. The prosecution case is that Shafqat Ali was under arrest in the main connected murder case since 28th of September, 1989. During remand period he led to the recovery of an unlicensed Klashnikov (P.1) a spare magazine (P.2) and 45 live bullets (P.3/1-45) from underneath a bush in village Thathi Sahibzada, District Sargodha, on 28th of September, 1989. The recovery memo. (Exh.PA.) was attested by Siddique Ahmad (P.W.1), Nazar Muhammad (given up) and Muhammad Ashiq, Inspector C.I.A. (P.W.2).

3. At the trial, the prosecution examined Siddique Ahmad (P.W.1) and Inspector C.I.A. Muhammad Ashiq (P.W.2) while Nazar Muhammad P.W. was given up.

4. The appellant pleaded not guilty to the charge and disowned the Klashnikov and other articles. He did not adduce any evidence in defence.

5. Relying on the evidence of P.Ws.1 and 2, the learned trial Court convicted and sentenced the appellant as described above.

6. It is tended on behalf of the appellant that the case is based on false allegations and the prosecution evidence was insufficient to bring home guilt to the appellant.

7. An application under section 428, Cr.P.C. was submitted on behalf of the appellant for permitting him to lead additional evidence i.e. to produce certified copy marked as Annexure "A/1" of the statement of Muhammad Siddique son of Ghulam Rasul made by him before the learned Judge, Speedy Trials Court, Gujranwala, on the 8th of August, 1992, in the main murder case and the Judgment, dated the 11th of August, 1992, marked as "A/2" passed in that case. The said application was allowed in the interest of justice and both the above-mentioned documents were ordered to be read in evidence. Learned counsel for the appellant has read out the statement of Muhammad Siddique made by him before the learned Judge, Speedy Trials Court, Gujranwala, on the 8th of August 1992, as P.W.6. It is to the following effect:-- "I do of know anything about this case. I do not know Shafqat accused present in Court. I cannot identify Shafqat accused. It is incorrect that Klashnikov, two magazines and 45 live cartridges were recovered in my presence at the instance of Shafqat accused." Learned counsel for the appellant states that he was declared hostile and was cross-examined by the learned Deputy District Attorney and in reply to the cross-examination; he categorically denied that the appellant while in police custody had made any disclosure or had led to the recovery of the Klashnikov, magazines and live cartridges. It is stated that the other recovery witness Nazar Muhammad had also appeared in the said case and did not support the prosecution and was resultantly declared hostile. In the present case he was not produced and was given up being unnecessary. It is further stated that the statement of Muhammad Siddique which he made before the learned Judge, Speedy Trials Court, Gujranwala, was later in time as it had been made by him on the 8th of August, 1992, and it was incumbent on the prosecution to have confronted him with his earlier statement dated the 8th of January, 1991, made in the present case. It is contended that since Muhammad Siddique (P.W.1) made totally different and contradictory statements before two competent Courts, rule of prudence would require that some independent corroboration should be sought of his statement which is not available as Nazar Muhammad, the other recovery witness, who could corroborate him, was not examined by the prosecution. There remains in the field only the; evidence of Muhammad Ashiq, Inspector C.I.A. (P.W.2) who had arrested the appellant and carried out the investigation of the main case and affected the alleged recovery. His testimony was not accepted even in the marlin case for want of corroboration.

8. In the above circumstances, learned State Counsel submits that the prosecution case does not stand fully established against the appellant.

9. For the foregoing reasons, we accept the appeal set aside the conviction and sentence of the appellant and acquit him of the charge. He shall be set at liberty forthwith, if not required in any other case. N.H.Q./S-218/L Appeal accepted.