1994 P Cr (PLP)

SAJJAD AHMED SIPRA, J.

The present criminal appeal calls into question the legality and propriety of the judgment, dated 28-11-1993, whereby the learned Judge Special Court (Suppression of Terrorist Activities), Faisalabad Division, Faisalabad, had convicted the appellant under section 13 of the Arms Ordinance, 1965, and sentenced him to R.I. for 3 years with a fine of Rs.20,000 or in default thereof to further undergo R.I. for 4 months. Benefit of section 382-B, Cr.P.C. was extended to the appellant.

2. The brief facts leading to the present criminal appeal are that the appellant, while in police custody in a case registered vide F.I.R. No.227/93, on 13-9-1993, had led to the recovery of .30 bore automatic pistol from his house, for which he could not produce any licence. The said pistol P.1 was taken into possession vide memo. Exh.PA. by Nazar Hussain, S.I., P.W.1, and on his complaint Exh.P.B., the F.I.R. Exh.P.B./1 i.e. F.I.R. No.238/93 was registered against the appellant. The site plan of the place of recovery Exh.P.C. was prepared by the Investigating Officer, Nazar Hussain, S.I. P.W.L After recording the statements of P.Ws. and completing the investigation, the appellant was challaned to the Court.

3. At the trial the prosecution had examined three witnesses in all to prove its case against the appellant. P.W.1 Nazar Hussain, S.I., being the investigating Officer and complainant of the case in question, had deposed about the recovery of .30 bore automatic pistol P.1, vide memo. Exh.P.A., attested by Shaukat Ali and Khadim P.Ws. He, however, admitted in his cross examination that there is no mention of word "automatic" in his complaint and that in the recovery memo he had added this word above the line afterward. In this respect, further admitted that the said weapon was not sent to any arms expert to determine whether or not it was automatic.

4. P.W.2 Khadim Hussain had attested the recovery memo. Exh.PA. and had deposed to that effect. According to this witness there were shops on both sides of the street, but none from the area had come to the spot at the time of recovery. He had denied his relationship with Shaukat P.W. (not produced) and further denied that he had falsely deposed against the appellant on account of relationship with the said P.W.

5. P.W.3 Muhammad Amin, A.S.I., being the Moharrir at the police station concerned had recorded the . F.I.R. Exh.P.B./1 on the receipt of complaint Exh.P.B. He had also admitted in his cross-examination that word "automatic" was not mentioned in the F.I.R. Exh.P.B./1.

6. The prosecution had given up Shaukat Ali P.W. and gad closed its case.

7. In his statement under section 342, Cr.P.C. the appellant had denied the allegations levelled against him. In his defence, he had also produced Ghulam Farid D.W.1 and Malik Bashir Ahmad D.W.2. Both these defence witnesses claimed themselves to be the resident of the Mohallah of the appellant and deposed that the police had never come to the house of the appellant on 13-9-1993.

8. The learned trial Court, after taking into consideration all the facts and circumstances of the case and having gone through the evidence on the record, had convicted and sentenced the appellant as stated above.

9. The learned counsel for the appellant and the State were heard at length and the record of the case perused with their assistance.

10. As pointed out by the learned counsel for the appellant, P.W.2 Khadim Hussain, was neither resident of the locality from which the alleged recovery was effected nor could he give any plausible reason for his presence at the police station at the time of his association with the recovery in question; and as the said P.W.2 had conceded that, at one stage, he and the appellant, Wasim Aslam, were living in the same house as co-tenants, although he had repelled the suggestion that he had vacated the said house as a result of the compromise arrived at pursuant to the filing of ejectment proceedings against him, which circumstance calls for independent corroboration of his testimony, which is not forthcoming in the instant case. In this respect it may be pointed out, that the prosecution had failed to associate the notables of the locality with the alleged recovery, despite the confirmation by P.W.1 and P.W.2 to the effect that the house from which the alleged recovery was effected had shops on both sides of the street in question, which fact further militates against the case of the prosecution. Furthermore, the omission of word "automatic" in respect of the pistol recovered on the complaint Exh.P.B. and the omission thereof in the recorded statements of Shaukat P.W. (not produced) and Khadim P.W.2, who had been associated with the alleged recovery, as conceded by P.W.1 in his testimony before the Court, and his further admission to the effect that he had written the word "automatic" above the line in the recovery memo. Exh.PA., further weakens the case against the appellant. In addition thereto, the argument advanced on behalf of the appellant to the effect that the recovery of the weapon in question, i.e. P.1. had taken place from the house which was not in the exclusive possession of the appellant, as there were other persons residing in the said house, finds further support from the evidence on the record, as P.W.1 Nazar Hussain S.1., had stated to the effect, during his cross examination, that other members of family also reside therein. Therefore, it cannot be said that the alleged recovery of weapon P.1 had taken place from E the exclusive possession of the appellant.

11. Therefore, pursuant to the above discussion, we hereby hold that the prosecution had failed to prove its case against the appellant as charged beyond reasonable doubt. Resultantly, we allow the present criminal appeal, set aside the impugned judgment dated 28-11-1993 and acquit the appellant of the offence charged. He shall be released forthwith, if not required to be detained in any other case. N.H.Q./W-52/L Appeal allowed.