1994 P Cr (PLP)

Nazir Ahmad Bhatti for the State. Date of hearing: 12th December, 1993. MIAN ABDUL KHALIQ, J

Shahbaz Ahmad son of Abbas Ali was tried by the learned Judge, Special Court (Suppression of Terrorist Activities), Bahawalpur Division, Bahawalpur, who vide his impugned judgment, dated 8-5-1993 convicted and sentenced the appellant under sections 8, 9 and 13 of the West Pakistan Arms Ordinance (XX of 1965) to undergo 7 years' R.I. and a fine of Rs.30,000, or in default to suffer further R.I. for one year. He was extended the benefit of section 382-B, Cr.P.C. He has come up in appeal to assail his conviction and sentence.

2. The prosecution case is that on 2-3-1993 P.W.4 Ch. Zafarullah Inspector/S.H.O. alongwith P.W.3 Nabi Bakhsh, S.I. and other police officials was patrolling in a State vehicle when the appellant was found proceeding towards Bahawalpur on a motor-cycle, who was suspected and stopped. Crime property Klashnikov P.1 with a magazine P.2 containing 25 live bullets P.3/1 25, 7 chargers P.4/1-7 containing 10 bullets each P.5/1-70 and 36 spare bullets P.6/1-36 alongwith a .12 bore pistol/carbine Exh.P.7 loaded with one cartridge P.8 and 2 spare cartridges P.9/1-2 were recovered from him for which he could not produce any licence, and the same were secured by P.W.5 vide memo. Exh.P.C. attested by P.W.3 Nabi Bakhsh, S.I. In addition to the above, on the personal search of the appellant, a photo copy of his National Identity Card P.10, Purse P.11 containing 2 notes of Rs.5 P.12/1-2, five photos P.13/1-5, 2 fire arm licences P.14 and P.15, Tube Chap Stick P.16, Registration Book of motor-cycle Yamaha 100 CC No.VRC/6267 red colour, engine and chasis No.3AH2-044418k Exh.P.17 were secured vide memo. Exh.P.D. attested by P.W.3. Jacket P.18 was also secured.

3. To prove the recovery of crime property the prosecution examined P.W.3 Nabi Bakhsh, S.I. and P.W.4 Ch. Zafarullah, Inspector/S.H.O. The appellant denied the prosecution allegation and disowned the crime property and stated that Klashnikov P.1 and other crime property was planted against him at the instance of Muhammad Anwar Sahi and Ch. Abid Hussain while sitting at the police station. In his statement under section 340(2), Cr.P.C. he stated that he was innocent and he did not want to add anything else to his statement recorded under section 342, Cr.P.C. and the same may be read as part of his statement. The appellant also produced D.W.1 Muhammad Yousuf, who had stated that on the day of 2-3-1993 P.W.4 Ch. Zafarullah, Inspector/S.H.O. had neither visited his hotel nor left his motor-cycle with him. D.W.2 Ghulam Mujtaba Khan, an employee of the Municipal Corporation, Bahawalpur was working as Naib-Qasid, Octroi Post and his duty hours in the first week of March was from 8-00 a.m. to 4-00 p.m. D.W.3 Mouivi Zafar Hussain was Imam Masjid of a mosque near Octroi Post who stated that during the entire month of Ramazan-ul-Mubarik, no Police Officer in uniform had offered Maghrab prayer in his presence in the aforesaid Mosque. There were about 25 houses adjacent to the Mosque and Octroi Post was at a distance of one acre from the Mosque and there were about 3/4 shops near the Octroi Post. D.W.4 Malik Abdul Hamid stated that on 2-3-1993 he remained in his lands and irrigated the same through the tube-well and he did not know whether Shahbaz appellant was arrested by the police on that date. Relying on the statements of P.Ws. and disbelieving those of D.Ws.l to 4 the trial Court sentenced the appellant as stated above.

4. It is contended that the recovery of crime property has been planted on the appellant. No person from the Octroi Post, nearby shops or houses was associated in the recovery proceedings and only police officials were produced to prove the recovery.

5. We have heard the learned counsel appearing for the parties and have perused the record. P.W.3 Nabi Bakhsh, S.I. and P.W.4 Ch. Zafarullah_ S.H.O. are police officials. P.W.3 was working under P.W.4. P.W.4 is the complainant, investigator as well as recovery witness in this case. No public witness was associated in the recovery proceedings, although there were houses, shops and Octroi Post near the place of occurrence. The appellant was coming on a motor-cycle when he was apprehended. He neither tried to slip away nor threw the crime propeFty. He could easily accelerate the speed of the motor-cycle and could at least try to run away or throw away the crime property. P.Ws. 3 and 4 have stated that the recovery was effected near the Octroi Post. P.W.3 further stated during cross-examination that there were 2/3 employees at the Octroi Post, but he did not know their names and there were shops and Mosque nearby, whereas P.W.4 has stated that on Octroi Post 4/5 persons including one Moharrir was found present and there were about 15/16 houses in the nearby Basti. P.W.4 did not call any of the public witnesses to associate in the recovery proceedings. The place of recovery is a thoroughfare.

6. We are of the view that the prosecution has failed to prove its case beyond doubt against the appellant and giving him benefit of doubt we acquit him of the charge. The appellant is in jail, he shall be released forthwith if not required in any other case. N.H.Q./S-398/L Appeal accepted.