1994 P Cr (PLP)

MUHAMMAD AMIR MALIK, J: -- Asim Shehbaz appellant was convicted for an offence under section 13 of the Arms Ordinance for being in possession of an unlicensed Klashnikov, two magazines and 11 bullets, by the Special Court (Suppression of Terrorist) Activities, Gujranwala and vide judgment, dated 12-1-1993 sentenced to five years' R.I. and a fine of Rs.20,000 or in default thereof six months' R.I. He has come up in appeal.

2. Ahmad Din, A.S.I. of Police Station Kotwali, Sialkot was investigating a case under section 382, P.P.C. of his police station on 30-7-1992 and interrogated the appellant in connection therewith. At about 4-00 p.m. he made disclosure and led the police party to a place near Railway Line behind Mohallah Water Works, Sialkot and after removing earth brought out a polythene envelop containing the Klashnikov. He drafted a complaint (Exh.P.B.) and sent it to the police station for registration of the formal F.I.R.

3. The appellant at the close of the trial, stated that he was falsely involved in the theft case, was got discharged and the police to show their efficiency obtained his custody from jail and planted the Klashnikov upon him. He produced his father Sufi Muhammad Shafi (D.W.1) in defence.

4. The recovery of the Klashnikov is stated to by Ahmad Din, A.S.I. (P.W.1) and Muhammad Razzak, A.S.I. (P.W.2). No public witness has been cited or produced the former stated in cross-examination that the person of the appellant was obtained from jail where he was lodged in the case under section 382, P.P.C. However, in the said case he was got discharged from the Magistrate as lie was innocent and had no connection with the case. The date and time of occurrence in the F.I.R. of the present case was not recorded in a straightforward manner as admitted by him. He also admitted that the place of recovery was a thickly populated area and no specific mark w4s affixed on the place of recovery by the accdsed: He accepted the suggestion that the father of the appellant made an application for reinvestigation which was entrusted to D.S.P. Sadar, Sialkot. Father of the appellant asserted in the application that the recovery was bogus and fake. He denied that the Klashnikov in fact was recovered from one Muhammad Ali Shah of Alamgir Bazar, Sialkot and falsely planted upon the appellant Muhammad Razzak, A.S.I., on the other hand gave a different time of recovery i.e. about 2-30 p.m. According to him the place of recovery was 1 furlong from the police station and in a populated place. The accused had dug the earth with the help of a Ramba which was brought by a Constable from the nearby locality and this was not the case of Ahmad Din, A.S.I. He denied the suggestion that the father of the appellant made an offer to the police officials to take oath on the Holy Qur'an about the innocence of the accused or that the Klashnikov was recovered from Muhammad Ali Shah who was let off by the Investigating A.S.I. Sufi Muhammad Shafi (D.W.1) the father of the appellant stated that his son was innocent. He had so pleaded before the D.S.P. and was prepared to take oath on the Holy Qur'an. He also made an application to the Inspector-General of Police, Punjab for inquiry. There being no public person, the recovery being from an open place and in a thickly populated Mohallah, the two Police Officers would require corroboration, particularly when the appellant was found innocent in the main A case and discharged by the Magistrate. No such corroboration is there. The possibility that the Klashnikov was planted and a fake case cooked up, cannot be entirely ruled out.

5. The appeal is, therefore, accepted, the conviction and the sentences le are hereby set aside and the appellant stands acquitted: He be set at liberty forthwith, if not required to be detained in any other case. N.H.Q./A-642/L????????????????????????????????????????????????????????????????????????????????? Appeal accepted.