MUHAMMAD AKRAM Versus STATE

SH. MUHAMMAD ZUBAIR, J.-- -Muhammad Akram was tried under section 13 of the Arms Ordinance, 1965 (XX of 1965), by the learned Judge, Special Court (Suppression of Terrorist Activities), Gujranwala Division, Gujranwala. He was convicted thereunder and vides judgment-dated 6-6-1990, was sentenced to five years' R.I. The convict has filed the present appeal.

2. The prosecution case, in brief, is that police party consisting of Muhammad Amin H.C. (P.W.2), Khalid Mahmood A.S.I. (P.W.3) and some constables were present on Ganda Nallah Bridge Garjakh Road on 28-8-1988 at 1-00 a.m. in connection with patrol duty. They saw three persons coming on Motorcycle No.GAD 3878 from the side of village Maddu Khalil. Seeing the police party, they tried to run tack, but they were apprehended by the police party. At the time of apprehension, the appellant was found in possession of sten gun. The appellant could not produce any licence for the weapon, he was, therefore, arrested and the sten gun was secured vide memo. Exh.PC. Khalid Mahmood then drafted a complaint Exh.PA and sent the same to the police station for formal registration of the case, where formal F.I.R. Exh.PB was recorded by Abid Hussain A.S.I. (P.W.1). After usual investigation the challan was put in the Court.

3. The appellant when examined under section 342, Cr.P.C. denied the prosecution allegations, pleaded innocence and made the following statement in answer to question No.4, `why the witnesses have deposed against you and why the case registered':---

"The niece of Muhammad Saghir son of Gulzar was abducted. I was suspected by aforesaid Saghir for the abduction of his niece. Due to this grudge Muhammad Saghir aforesaid in connivance with the police managed to get the case registered against me."

No evidence was produced in defence.

4. The prosecution in support of its case examined three witnesses. Abid Hussain A.S.I. (P.W.1) recorded the formal F.I.R. Exh.PB. Muhammad Amin A.S.I. (P..W.2) and Khalid Mahmood S.I. (P.W.3) deposed about the alleged recovery of illicit sten gun P.1 from the possession of the appellant.

5. Learned counsel for the appellant vehemently contended that no public witness was associated while making the recovery of sten gun P.1 from the possession of the appellant, as it has been conceded in cross-examination by both the witnesses that there were scattered houses at a distance of about 150 yards on both sides of Gandah Nullah and that they searched and detained about 15/20 persons before arresting the appellant. He also pointed out certain discrepancies between the evidence of these two witnesses regarding the number of persons arrested and what recovery was affected from them.

In the end, learned counsel submitted that the defence plea taken by the appellant is plausible, because due to the friendship of Muhammad Saghir with the police officer he has been involved falsely in this case.

6. Learned Law Officer assisted by the learned counsel for the State has supported the impugned judgment.

7. We have considered the respective submissions of the learned counsel for the parties and have perused the record with their able assistance. Admittedly no public witness was associated while making recovery from the appellant though public witnesses were available, as per the evidence o A Muhammad Amin P.W.2 and Khalid Mahmood P.W.3, yet they were not asked to join the recovery. The contention of the learned Law Officer that as the recovery was not affected from the house, so the police people were as good witnesses as any other public witness is devoid of force in the circumstances of this case, because the object of associating public witnesses is to obviate the possibility of false implication of accused persons. In the present case, no B implicit reliance can be placed on the evidence of the police officers, because there is evidence on the record to show that the police officer, namely, Khalid Mahmood S.I. had some connection with Muhammad Saghir, who was instrumental in the involvement of the appellant in this false case. The C possibility cannot be ruled out that the plea taken by the appellant might be true; hence the prosecution has failed to prove its case against the appellant beyond reasonable doubt and he richly deserves the concession of benefit of doubt.

8. The upshot of the above discussion is that while accepting the appeal, we set aside the conviction and sentence of the appellant and acquit him. He shall be set at liberty forthwith, if not required to be detained in any other case.

N.H.Q./M-674/L I Appeal accepted.