1994 P Cr (PLP)

Ali Sibtain Fazli and Bashir Hussain Khokhar for Appellants. Mansoor Alamgir Qazi, A.A: G. for the State. Dates of hearing: 13th, 14th and 20thDecember, 1993. MUHAMMAD AMIR MALIK, J: -- Altaf Hussain appellant was convicted by Special Court (Suppression of Terrorist Activities), Gujranwala Division, Gujranwala vide judgment, dated 20-8-1992 and sentenced to 10 years' R.I. and whole of his property was ordered to be confiscated to the State under section 7 of the Surrender of Illicit Arms Ordinance, 1991 and to a fine of Rs.1,000 under section 13 of the Arms Ordinance, 1965. He has appealed.

2. The appellant in his statement at the close of the trial when asked why this case against you? replied, "In fact sten gun P.1, Magazine P.2 and 8 bullets P.3/1-8 were recovered from the possession of one Muhammad Iqbal who is related inter se with Haji Ikhlaq Sitting M.PA. of the area. Local M.PA. owned grudge against me and due to political differences with him he planted the fake recovery upon me in collusion with the local police. Rana Rashid, S.I./I.O. is also close relative of abovementioned M.PA. This all was done by the M.PA. in collusion with the I.O:"

3. According to the prosecution case and the conclusion of the learned trial Judge a sten gun had been recovered from the appellant. The minimum sentence for keeping an unlicensed sten gun is three years' R.I. So the sentence recorded under section 13 of the Arms Ordinance was illegal. We, therefore, issued a notice to, the appellant as to why if his conviction was maintained, the sentence in accordance with law be not imposed.

4. Learned counsel for the Appellant contended that Surrender of Illicit Arms Ordinance had not been enforced and it was a dormant piece of legislation, no notification having been issued for its enforcement. The learned Advocate-General had to concede on the point. Thus the conviction as well as the sentence recorded under section 7 of the Ordinance of 1991 is set aside being illegal altogether.

5. Learned counsel for the appellant also asserted that on merits no case under section 13 of the Arms a concoction by the police at the instance of the local M.PA. who was inimical to the appellant. After hearing him and going through the record we find substance in the argument.

6. The recovery evidence is provided by Abdul Rasheed and his Constable Muhammad Akhtar (P.Ws.1 and 2). Abdul Rasheed Sub-Inspector (P.W.1) is the star-witness. According to him, on 5-4-1992 while posted as Incharge C.I.A. Shakargarh, he registered the F.I.R. in the present case on secret information. He raided the Dera of the appellant on 8-4-1992, arrested him and he got recovered the sten gun lying in a drum. In cross-examination he admitted that no Lumberdar, Councillor or any public person was associated in the investigation of the case. He volunteered that he conducted raid at the house of the appellant on 5-4-1992 but he was not present. Thus, the reason given by him that he had not associated any public person so that the raid (on 8-4-1992) was not leaked out is just a lame excuse. He admitted in cross-examination that he remained at the place of recovery from 11-30 a.m. to 3-00 p.m., the recovery was effected at 1-00 p.m. as he, was waiting for the Lumberdar and the Councillor. He also admitted that after the recovery Aman Ullah and others reached the place. He also admitted that the appellant pleaded that on 3-1-1983 he had obtained the sten gun from one Muhammad Iqbal of Village Kapoor Dev and returned the same to him in the year 1986-87. He did not join Muhammad Iqbal in the investigation. He further admitted that he did not secure any search-warrant from the Magistrate nor did he test the sten gun whether it was in working order. He also admitted that Haji Ikhlaq Ahmad was 'the M.PA. of the place of recovery and also of Village Kapoor Dev and was relative to him. He showed ignorance whether Muhammad Iqbal mentioned by the Appellant, according to him, was a supporter of Haji Ikhlaq Ahmad or that the Appellant had contested Local Body Election as a candidate for District Council seat and Haji Ikhlaq Ahmad, M.P.A. was opposed by the appellant in previous election. After going through his statement it seems that perhaps he was playing in the hands of his relative Ikhlaq Ahmad, M.P.A.

7. The upshot is that the appellant is granted the benefit of doubt and acquitted of the charge under section 13 of the Arms Ordinance. The appeal is accepted and the conviction and sentence are hereby set aside. He be set at liberty forthwith if not required to be detained in any other case. N.H.Q./A-582/L????????????????????? Appeal accepted.