2001 PLP 823 (MLD)

3. The case of the prosecution as narrated in the F.I.R. is that during the investigation of case F.I.R. No..148 of 1994, dated 30‑6‑1994 registered, under sections 353/324/148/149/ 152/189/337‑A(ii)/427, P.P.C. read with section 17, Haraba (Enforcement of Hudood) Ordinance, 1979 at Police Station Rukanpur, a ‑raid was conducted on 30‑7‑1997 at the house of the appellant. Since the appellant was not present in the house, a thorough search was made in the presence of the witnesses and during the same, from the residential room of the appellant a rifle .9‑MM (P‑1) and one loaded magzine (P‑2) alongwith 30 live bullets (P3/1‑30) were found lying in an iron box and the same were taken into custody vide recovery memo. Exh.P.B. A complaint, Exh.P.A., in this ,regard was prepared by Muhammad Ramzan, Inspector P/3, and upon the basis of same formal F.I.R., Exh.P.A./1, was registered.

4. During the trial, prosecution produced, six witnesses in order to establish its case against the appellant. Khan Muhammad, H.C./P.W.I, entered, formal F. I. R., Exh.P.A./1, upon the basis of complaint Sent to the police station by Muhammad Ramzan, Inspector P.W.3. Taleh Muhammad, P.W.2, submitted his report Exh.P.D., according to which the rifle (case property) was an automatic weapon and the same was found to be in working condition, Muhammad Ramzan, Inspector/P.W.3. prepared complaint; Exh.P.A., as well as conducted the investigation of this case and after completing all legal formalities submitted the challan before the learned Trial Court. Rasheed Ahmad, P.W:4, was recovery witness who did not support the prosecution case and was declared hostile. Muhammad Aslam, P.W.5, was present at the time of recovery of rifle, P.1, alongwith magzine, P.2., by the police. Abdul Ghafoor, F.C.P.W.6, was deputed for the execution of warrants of arrest of the appellant, Exh.P.E., who pasted the proclamation at the residence of the appellant and their copies at conspicious places. He also made a report, Exh.P.E.I, in this regard.

5. After recording the entire prosecution evidence, learned Trial Court recorded the statement of the appellant under section 342, Cr.P.C. wherein he denied the allegation levelled against him. While answering the question as to why P.Ws. deposed against him and why this case against him, he replied:‑‑ . "The P.Ws. have falsely deposed against me, I was implicated in this case at the instance of one Habib Ullah (Rehri Wala). He was inimical to me and he by joining hands with the police of Rukanpur got me involved in the present case. " , The appellant produced Madad Khan and Amir Bakhsh as D.W.1 and D,.W.2 respectively in his defence. The appellant never made any statement under section 340(2), Cr:P.C.

6. Learned Trial Court after appraisal of the evidence, on record, vide order, dated 31‑10‑1995 convicted and sentenced the appellant as narrated earlier.

7. Learned counsel for the appellant submitted that it was a false case. Rifle, P.1, was, a property of the police department which was planted upon the appellant in order to strengthen the case F.LR. No. 148 of 1994 in which the appellant has already been acquitted. It .was further contended that the recovery witness from the public did not support the prosecution case and that the statement of Investigating Officer, in the circumstances of this case, could not be taken into consideration for upholding the conviction of the appellant. Conversely learned State Counsel vehemently opposed the contention raised by the learned counsel for the appellant.;

8. Arguments heard. Record perused.

9. In order to prove the charge of keeping illicit aims against the appellant, prosecution has mainly relied upon the statement of Muhammad Ramzan, P.W.3/Inspector, Rasheed Ahmad, P.W.4, and Muhammad Aslam P.W.5. As far the recovery witnesses from the public are concerned, their statements are of no value for the prosecution, Rasheed Ahmad' P.W.4 did not support the prosecution case, he was declared hostile and was cross-examined by the learned Deputy District Attorney wherein he had categorically denied about the recovery of illicit arms from the house of the appellant in his presence as well as his signatures on the recovery memo. Exh.P.B. Similarly, Muhammad Aslam P.W.5 was not the resident of the locality, he joined the police party from the police station where he had gone for lodging an F.I.R. about the theft of cow. At the time of recovery this witness remained outside the house of appellant and only the police officials entered into the house of the appellant for the purpose of recovery and after a short while, he saw rifle in the hand of Muhammad Ramzan, Inspector/P.W.3, and thereafter, he was asked to sign the recovery memo., this witness also admitted that nobody from‑the neighbourhood was called by the police to join the proceedings. As far the statement of Muhammad Ramzan, Inspector/P.W.3, is concerned, no doubt he had supported the prosecution case but it would not be safe to rely upon the statement of police officer specially when the witnesses from the public have been disbelieved. Even otherwise, the statement of this witness is clear to the effect that the weapon was not recovered from the exclusive possession of the appellant and admittedly, the recovery was effected in the absence of the appellant from an iron box lying in the house which was locked and the key was provided by the ladies. Similarly, no one from the locality was asked to join the proceedings of recovery and that the number of rifle mentioned in the recovery memo., was different from the number engraved on the rifle produced before the learned Trial Court, thus, no reliance can be placed I upon the statement of this witness as well.

10. The resume of the prosecution witness clearly indicates, that the possibility that this case was fabricated just to strengthen the case F.I.R.I No. 148 of 1994, dated 30‑6‑1994 registered at Police Station Rukanpur, can't be ruled out and the appellant is entitled to get the benefit of doubt in the circumstances. Accordingly, while allowing this appeal the conviction and sentence of the appellant is set aside. The appellant is already on bail, his bail bonds are cancelled and sureties are discharged.

11. With the observation, instant criminal appeal stands allowed and disposed of. N.H.Q./N‑63/L Appeal accepted.