MUHAMMAD ASGHAR Versus THE STATE Malik Abdul Wahid , Safdar Javed Cheema for the State.
The appellant was tried by a Judge Special Court constituted under the Suppression of Terrorist Activities Act (XV), 1975 Gujranwala Division on the charge under section 4/5 of the Explosive Substances Act, 1908. Vide judgment dated 15th of August, 1990, the appellant was found guilty under section 5 of the aforesaid Act, and was thus convicted and sentenced to undergo rigorous imprisonment for seven years, and confiscation of his property was also ordered. Benefit under section 382(B), Cr.P.C. was also given to the appellant.
2. Aggrieved by his conviction and sentence, the appellant has preferred this appeal, which shall be disposed of through this judgment.
3. The prosecution case as mentioned in the F.I.R. was that on 23rd of June, 1987, Shaukat Hayat Inspector Police received an information that at the Dera of Inam Ullah Khan in the area of Daburji Allian, some absconders variously armed were sitting with a view to commit some offence, and hence on the receipt of this information, on a roadside, the aforesaid Inspector formed a raiding party consisting of some Police Officials and also some witnesses from the public; then they conducted the raid at the Dera of Inam Ullah, where the appellant was also apprehended, and on his search, a hand-grenade P.1 was recovered alongwith its fuse P.2. The same was taken into possession, vide Memo Exh. P.C. attested by Muhammad Iqbal A.S.1. P.W.2 and Muhammad Anwar A.S.I. (not produced) besides Inspector Ahmad Hussain P.W.3.
4. At the trial, the prosecution placed reliance upon the statement of Muhammad Iqbal A.S.I. P.W.2 and Ahmad Hussain P.W.3, whereas, Shaukat Hayat Inspector Police was not produced. The learned trial Judge after recording the statements of both the witnesses, referred to above, summoned Shaukat Hayat, Inspector Police as C.W.
5. With the assistance of the learned counsel for the appellant and the State, we have carefully gone through the entire record, and the statements of both the witnesses. The most startling feature of the case is that although witnesses from public were made to join the raiding party, yet they were not made to sign the recovery memos, and were not produced in Court to support the recovery. In addition thereto, we have also noticed discrepancy in the statements of Muhammad Iqbal and Ahmad Hussain P.Ws.2 and 3 respectively inasmuch as, P.W.2 Muhammad Iqbal A.S.I. stated that the hand-grenade was recovered from the Jhola of the appellant, while P.W.3 Ahmed Hussain Inspector stated that the hand-grenade alongwith its fuse P.2 was recovered from the shirt's pocket of the appellant.
6. We are not satisfied with the statements of the Police Officials because even if they had not obtained the requisite search-warrant, as some absconders were to be arrested, then it was incumbent upon the prosecution to produce witnesses from public. The manner to conduct the raid was that the raiding party had parked their vehicles at Pacca road, and had then proceeded towards the Dera of Inam Ullah, which is situated at a distance of 200 yards from the Pacca road. Although, allegedly notorious absconders were present in the aforesaid Dera, yet strangely enough, no exchange of fire had taken place despite the fact that the absconders were variously armed. The evidence further reveals that one of the persons had escaped from the scene of occurrence. There is no evidence to prove the abscondence of appellant or others who were arrested. The entire story does not inspire confidence therefore, we are not convinced with the truth of the prosecution case. Accordingly, we allow this appeal by setting aside the conviction and sentence of the appellant. He shall be released forthwith if not required to be detained in any other case.
N.H.Q./M-2760/L Appeal allowed.