1992 P Cc (PLP)

MUHAMMAD MUNIR KHAN; J.‑‑‑ This .Criminal Appeal No.428 of 1990 arises from the judgment of Presiding Officer (Suppression of Terrorist Activities), Lahore, whereby he on 2‑7‑1990, convicted Muhammad Ramzan alias Janon under section 13 of the Arms Ordinance, 1965, and sentenced him to five years' R.I. and a fine of Rs.10,000 or in default thereof one year's R.I.

2. The charge against the appellant was of keeping unlicensed stengun P.1 fitted with magazine containing twenty bullets P.3/1‑20 on 21‑7‑1988. He denied the charge and claimed to be tried.

3. To prove its case, the prosecution produced three witnesses. Muhammad Hussain H.C. (P.W.3) had prepared the formal F.I.R. Malik Muhammad Ashiq P.W.1 and Muhammad Akram Inspector (P.W.2) are the witnesses of recovery. They stated that on 21‑7‑1988 when they raided Chah Jumanwala situated in the area of Village Phyal Kalan, they found Muhammad Ramzan appellant sleeping on a cot with unlicensed stengun P.1 and bullets P.3/1‑20 lying on his right side, which were taken into possession vide memo. Exh.PA. attested by them.

4. When examined under section 342, Cr.P.C., the appellant denied the recovery of unlicensed stengun and bullets from him. He raised the plea of false implication by the police with the connivance of his opposite party. He appeared in defence and made statement under section 340(2), Cr.P.C. He produced certified copies of the reports under section 173, Cr.P.C. Exh.DA. to Exh.D.D. and certified copies of the judgments Exh.D.E. and Exh.D.F. to show that he was acquitted in the other cases registered against him.

5. The learned counsel for the appellant contended that the prosecution has failed to prove its case beyond reasonable doubt inasmuch as the possibility that the stengun and the bullets might have been placed by the side of the appellant while he was sleeping by someone else, cannot be excluded. The learned State counsel is not in a position to controvert him.

6. 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 and the statements made by the appellant under sections 340(2) and 342, Cr.P.C. We feel persuaded to agree with the learned counsel for the appellant. Admittedly, when the police raided Chah Jumanwala, the appellant was sleeping in an open place on a cot and stengun P.1 fitted with magazine containing twenty bullets P.3/1‑20 was lying by his right side. So the possibility that the stengun might have been placed by someone else more particularly by a person belonging to the opposite group, cannot be excluded. No one had seen the petitioner carrying stengun him before the alleged recovery. The onus lies on the prosecution to prove that the appellant was not only keeping the unlicensed fire'‑arms but also that his possession was Wry much conscious. In case of a sleeping person, it is doubtful that the possession of arm lying by his side would be a conscious possession for the purpose of his conviction for holding or keeping unlicensed arm. Needless to say that an accused person being favourite child of law is entitled to the benefit of slightest doubt not as a matter of course or concession but as a matter of right. For these reasons, we feel that the prosecution has not been able to prove its case beyond reasonable doubt.

7. Pursuant to the above discussion, giving him the benefit of doubt as a matter of abundant caution, we accept the appeal, set aside the conviction and sentence of the appellant and he is acquitted of the charge. He is on bail. He stands discharged of his bail bond. H.B.T./M‑3245/L ??????????? Appeal allowed.