1998 P Cr (PLP)

RAJA MUHAMMAD KHURSHID, J.

The appellant was convicted under section 13 of the Arms Ordinance, 1965 by Mian Muhammad Sikandar Hayat, Judge Special Court No.III Suppression of Terrorist Activities, Lahore Division, Lahore, vide his judgment, dated 2-5-1996 and sentenced to four years' R.I. and fine of Rs.20,000 or in default to undergo further R.I. for six months.

2. Brief facts are that on 1-11-1995, the appellant was occupying a pillion seat of a motor-cycle driven by one Muhammad Sarwar at about 4-00 p.m. The aforesaid motor-cycle was stopped by a police party headed by Munir Ahmad, A.S.-I., who found the appellant in possession of 8 m.m. rifle alongwith a Khaki bag containing 30 live bullets and three chargers. Since the appellant could not produce licence for the aforesaid rifle and ammunition, therefore, he was booked under section 13 of the Arms Ordinance, 1965 vide F.I.R. Exh.P.B./1 drafted on the basis of a complaint Exh.P.B. made by the aforesaid A.S.-I. The offence was later on converted from sections 13 to 13-B vide daily diary dated 31-12-1995.

3. The appellant was sent up for trial to the Special Court where he was charged under section 13 of the Arms Ordinance, 1965.

4. The prosecution examined five witnesses, out of which Munir Ahmad, A.S.-I. (P.W.2) and Muhammad Arif Head-constable (P.W.3) were the most material witnesses having seen the recovery of the illicit arm and ammunition. The remaining three witnesses were of formal nature as they had dealt with the case property while it was placed in Malkhana and was sent to the fire-arms expert for its examination.

5. After conclusion of the prosecution evidence, the appellant/accused was examined under section 342, Cr.P.C., in which he claimed to be innocent and put up aversion that although he alongwith Muhammad Sarwar and Akram was riding a motor-cycle but the alleged illicit rifle belonged to Muhammad Akram who was its licence holder and had produced the same before the police whereupon Muhammad Akram and Muhammad Sarwar aforesaid were let off by the police having received bribe from them but he was falsely challaned to face trial.

6. The learned trial Judge after considering the prosecution evidence discarded the defence version and recorded the conviction and sentence against the-appellant, as aforesaid.

7. Learned counsel for the appellant has assailed the impugned judgment on the ground that the rifle and the ammunition were licensed weapons, as would be clear from the licence Exh.D.A. produced before the police and as such, no offence was committed; that the evidence of Munir Ahmad,. A.S.-I. was worthless, as he had drafted the complaint and had also started the investigation which was against all the fair canons of justice and equity. In this respect, it was contended that since the aforesaid A.S.-I. had become a complainant in the case, therefore, he should have refrained to investigate the same, so as to make way for disinterested and independent investigation. Since it was not done, therefor, the investigation conducted by the aforesaid A.S.-I: was highly prejudicial qua the appellant; that even if the evidence of the prosecution was taken on its face value, it would be clear that the Investigating Officer while appearing as P.W.2, had admitted that Muhammad Ashraf appellant was accompanied by his companions, which would lend support to the defence version; that Muhammad Akram and Muhammad Sarwar were with the appellant at the relevant time and as such, the prosecution story was concocted; and finally that there was a legal flaw, as the charge was framed under section 13 of the Arms Ordinance, 1965, whereas the jurisdiction of the Special Court could only be invoked if the offence fell within section 13-B of the Arms Ordinance, 1965. In view of the above submissions, it was contended that the conviction and sentence passed upon the appellant were bad in the eye of law.

8. However, the learned counsel for the State supported the impugned judgment on the ground that there was no motive with the police to implicate the appellant/accused falsely in this case; that though the rifle was licensed in the name of Muhammad Akram, but since it was recovered from the appellant, therefore, his possession would be considered as illegal qua that arm and that the conviction and sentence passed by the learned trial Judge did not suffer from any material irregularity calling for an interference.

9. We have considered the foregoing points reaised at the Bar from both the sides. First of all it is clear from Exh.D.A. that the, rifle allegedly recovered from the appellant was a licensed weapon in the name of Muhammad- Akram, who according to the appellant, accompanied him alongwith one Muhammad Sarwar. Both the aforesaid persons have appeared in defence to state that they were accompanying the appellant at the relevant, time and that three of them were taken to police station where two of them, namely, Muhammad Akram and Muhammad Sarwar, were let off after the licence of the rifle was shown to the police. However, Muhammad Ashraf appellant was arrested by the police on the ground that he was carrying the unlicensed weapon i.e. the rifle. The appellant has taken a plea in his defence that he was falsely implicated as he had refused to oblige the A.S.-I. to supply chickens to him without any payment. This allegedly annoyed the A.S. -I. who falsely implicated him in the case.

10. In the light of the foregoing facts and the evidence brought on record, it becomes clear that the appellant was not alone but was accompanied by his companions, as deposed by the Investigating Officer while appearing as P.W.2. In that situation, it is not easy to discard the defence version, because in fact the rifle belonged to Muhammad Akram who was later on let off by the police after he had produced the licence. The recovery was effected from a place which was located on a road side and according to the recovery memo. Exh.P.D. there were Havlis on both sides of the road and Abadi Deh was also near about. The time of occurrence was 4-00 p.m. and as such, it was not difficult for the Investigating Officer to associate some independent and respectable persons of the locality to see the recovery. In the circumstances, absence of respectables of the locality to witness the recovery has made the cases reasonably doubtful, particularly when 'the appellant was not alone according to the statement of the Investigating Officer when he was confronted by the police party. Under such situation; the recovery in the instant case is not creditable nor evidence to prove it is trustworthy, so as to come to a conclusion that the case of the prosecution was beyond any reasonable doubt. Though the challan was submitted under section 13-B of the Arms Ordinance, ' 1965 but the charge was framed under section 13 of the said Ordinance followed by the impugned conviction. This too creates an anomaly vis-a-vis the jurisdiction of the Special Judge to try such case under the Suppression of Terrorist Activities Act, 1975. In view of our above discussion, we come to an irresistible conclusion that the- prosecution has not been successful to prove its case beyond any reasonable doubt. We accordingly extend benefit of doubt to the appellant and while accepting this appeal, set aside the conviction and sentence passed upon him by the learned trial Judge. He shall be set at liberty forthwith if no more required in any other case. N.H.Q./M-448/L???????????????????????????????????????????????????????????????????????????????? appeal accepted.