1995 P Cr (PLP)

ARIF IQBAL HUSSAIN BHATTI, J: -- Jamees Iqbal alias Beecha, appellant, filed this appeal against his conviction, dated 6-7-1993 under section 13 of the Arms Ordinance, whereby he was sentenced to five years' R.I. and a fine of Rs.20,

000. In case of default of payment of fine, he was further directed to undergo 6 months' R.I. by the learned Special Judge, Suppression of Terrorist Activities, Gujranwala Division, Gujranwala. The brief facts of the case are that on 26-10-1992, at 7-30 p.m., M. Saeed Ahmad S.I. P.W.4 was on patrol duty alongwith Muhammad Younas and other police officials near Bus Stand Sialkot. Jamees Iqbal alias Beecha accused/appellant came there. He was holding a shopper bag. P.W.4 checked the same and found a sten gun P.1, magazine P.2 and some quantity of heroin wrapped in a piece of cloth, which was seized by the Police Officer. The accused had no licence for the possession of the arms, therefore, he was arrested and challaned for the offence.

2. The investigation was conducted by M. Saeed Ahmad P.WA Being a scheduled offence, the challan of the case was submitted in the Court of Judge, Special Court, S.T.A., Gujranwala. The prosecution produced four P.W s. in the case. P.W.1 was Sh. Abdur Rashid Fire-arm Expert who declared sten-gun P.1 as an automatic weapon. P.W.2 was Anwar Farooq Moharrir A.S.I. who on 22-10-1992 registered formal F.I.R. Exh.PA./1 P.W.3 was Muhammad Younas H.C. who was a member of the patrolling party, when sten gun P.1 was recovered from the accused, he attested the memo. P.B. at the spot P.W.4 was M. Saeed Ahmad, S.I. who recovered the sten gun from the accused at the spot, prepared recovery memo. sent complaint Exh P.A. to the Police Station for registration of the case. He also conducted the investigation of the case and submitted the challan in Court.

3. The accused in his statement denied the recovery on 22-10-1994 and stated that he was taken into custody by the police on 18-10-1992 and was kept at the police station and the false recovery of sten gun was planted on him. He further stated that he was involved in a murder case and the police in connivance with the complainant party and Sh. Ijaz Ahmad, M.PA roped him in this case. He did not produce defence but produced certified copies of Exhs. DA., D.B., D.C. and D.D. Exh. D.A. was an application by Muhammad Iqbal father of the appellant submitted in the Court of learned Additional Sessions Judge on 20-10-1992. The father had prayed in the application that the appellant was unable to attend the Court on 20-10-1992 as the Cantonment Police had arrested him on 18-10-1992. This application was supported by an affidavit. Exh. D.B. was an order of the learned Additional Judge incorporating the fact that the accused-appellant was arrested on 18-10-1992, therefore, an application by the father was moved and that the case was adjourned. Exh. D.C is an application for the grant of bail in the said case as well as the order passed thereupon and Exh. D.D. is the judgment of the learned Additional Sessions Judge by virtue of which the appellant and other accused were acquitted in the murder case.

4. Learned counsel for the appellant has submitted that the case was extremely doubtful and made up against the appellant in view of the background of enmity of the complainant party due to the murder case and supported by Sh. Ijaz Ahmad, M.P.A. Learned counsel has further submitted that the alleged recovery took place at the bus-stand which was a very busy place and not a single public witness witnessed the recovery nor appeared in Court in support of the case. Learned counsel further submitted that in view of the documentary evidence through Exhs. DA., D.B., D.C. and D.D., the falsehood of the recovery was evident when it was established that the appellant was in fact arrested on 18-10-1992 and was in custody of the Cantonment Police, therefore, the so-called recovery of 22-10-1992 was fake and concocted.

5. We have heard the learned counsel for the appellant, the State and perused the record.

6. The submissions of the learned counsel for the appellant have sufficient force. The application submitted by the father on 20-10-1992 supported by an affidavit and then the order passed on 20-10-1992 by the learned Additional Sessions Judge was a sufficient evidence to establish that the appellant was in custody of the police much before his. arrest on the day of so-called recovery of sten gun.

7. We have noticed that in the cases regarding recovery of narcotics and fire-arms, it has become a practice that the police do not associate the E respectables of the locality or members of the public and frequently violate the spirit of the provisions of section, 103, Cr. RC. This tendency as a practice we deprecate and direct the senior hierarchy of the police to issue instructions for the compliance of the provisions of section 103, Cr.P.C. normally in the cases.

8. In this case M. Saeed Ahmad P.W.4 recovered the arm, arrested the accused and completed the investigation himself. It would have been more appropriate if after the receipt of the complaint and registration of the formal F.I.R. at the police station, the investigation of the case had been entrusted to a C senior Police Officer to at least give a colour of authenticity to the prosecution case. In view of the contentions raised and the points discussed, the case of the prosecution is highly doubtful and we, therefore, set aside the order of conviction and accept this appeal. The appellant shall be released from jail immediately if not required in any other case. N.H.Q./J-88/L Appeal accepted.