1992 P Cr (PLP)

MUHAMMAD MUNIR KHAN, J.‑‑‑ This Criminal Appeal No.415 of 1990 arises from the judgment of Presiding Officer, Special Court, (Suppression of Terrorist Activities), Lahore, whereby he, on 25‑6‑1990 convicted Muhammad Farooq, appellant, and sentenced him to five years' R.I. and a fine of Rs.10,000 or in default thereof four months' R.I.

2. The charge against the appellant was of keeping unlicensed Klashnikov PA and 10 bullets P.2/1‑1.0 on 19‑4‑1990. He denied the charge and claimed to be tried.

3. To prove its case, the prosecution produced three witnesses. Muhammad Yusuf, Head Constable, P.W.1, had drafted the formal F.I.R. Ghulam Abid, A.S.'. P.W.2, and Sh. Bashir Ahmad, P.W.3, are the recovery witnesses. Ghulam Abid, P.W.2, stated that on the night between 18/19‑4‑1990, he alongwith Bashir Ahmad, Inspector, were present at Dubai Chowk, at about 11‑15 p.m. a car No.LHW‑437 came there. He stopped the car. Muhammad Farooq was found sitting in the car carrying Klashnikov P.1 fitted with magazine P.2 containing 10 bullets P.3/1 to 10 which were taken into possession vide memo Exh.P.C. attested by him and Nazar Anees (not produced). The appellant had no licence of keeping Klashnikov and bullets with him. Sh. Bashir Ahmad, Inspector, P.WA has supported the statement of Ghulam Abid, A. L, P.W.2.

4. When examined under section 342, Cr.P.C. the appellant explained that the gun recovered from him was licensed gun of Mian Farzand Ali who had placed the same in the diggi of the car, and that the licence in the name of Mian Farzand Ali was lying in the dash board of the car. He appeared as D.W.3 and gave evidence on oath in disproof of the charge. He produced Mian Farzand Ali D.W.1 and Muhammad Rafiq D.W.2 in defence. Mian Farzand Ali stated that Klashnikov P.1 belongs to him. He had valid licence of keeping the same. He had placed the Klashnikov in the diggi of his car and its licence in the dash‑board of the car. Muhammad Farooq was driver of his friend Haji Gulzar; and that Muhammad Farooq has asked D.W. to drop the appellant at Multan Road. He stated that the appellant did not know of the presence of Klashnikov in the car. Muhammad Rafiq D.W.2, has supported the statement of Mian Farzand Ali, D.W.1.

5. Believing the prosecution evidence and disbelieving the defence plea, the trial Court has convicted and sentenced the appellant as stated above.

6. Learned counsel for the appellant contended that the prosecution has failed to prove its conscious presence of unlicensed Klashnikov P.1 by the appellant that Sheikh Muhammad Bashir, Inspector, has admitted that the licence of Klashnikov was, lying in the dash‑board of the car; that ‑the appellant had produced licence at the time of recovery; and that Mian Farzand has supported the plea of the appellant that he did not know the presence of Klashnikov in the car. Learned counsel for the State has supported the judgment of the trial Court.

7. We have carefully attended to the arguments addressed by the learned counsel for the parties and have reviewed the entire evidence produced by the prosecution, statements made by the appellant under sections 342, Cr.P.C. and 340(2), Cr.P.C. and the defence evidence. We feel persuaded to agree with the learned counsel for the appellant. We find that the car wherefrom Klashnikov P.1 was recovered was of Shaukat Ali brother of Mian Farzand Ali, D.W.1. The licence of this Klashnikov was in the name of Mian Farzand Ali D.W.1. Sh. Bashir Ahmad, Inspector, D.W.3, has stated that at the time of recovery of arm the licence of Klashnikov in the name of Mian Farzand Ali was lying in the dash‑board of the car and was produced by the appellant at that time; that Mian Farzand Ali, D.W.1, who is quite independent person has stated that the appellant did not know the presence of the Klashnikov in the car. We do not see any reason to disbelieve the plea raised by the appellant. For these reasons, we feel that prosecution has not been able to bring home the guilt to the appellant.

8. Pursuant to the above discussion the appeal is accepted and while giving him the benefit of doubt the appellant is acquitted of the charge. He is on bail and stands discharged of bonds. SA./M‑3188/L Appeal accepted.