MUHAMMAD IDREES Versus THE STATE Munir Ahmad Bhatti , Altaf-ur-Rehman for the State.

RIAZ AHMAD, J. ‑‑‑ Appellant in this case was tried by a Court constituted under the Suppression of Terrorists Activities Act, 1975, on the charge under section 13‑B of the Arms Ordinance, 1965 for having kept a klashnikov. Vide judgment, dated 14‑7‑1990, the learned Judge presiding the said Court found the appellant guilty of the said charge and accordingly he was convicted and sentenced to six years' R.I. and to pay a fine of Rs.30,000 or in default thereof to suffer 1‑1/2 years' R.I. Aggrieved by the conviction, the appellant has filed appeal which shall be disposed of through this judgment.

2. The prosecution case, in brief, is that on 28‑1‑1989 at about 6‑00 a.m. a police party consisting of Nazar Ahmad A.S.I. P.W.2, Fazal Din A.S.I. P.W.3 and other police officials were present at the Bus Stop of Bhai Pheru when they received a secret information that the appellant is coming from his village Baghiana Kalan on a Tonga towards Bhai Pheru Bus Stop from where he will board a bus to go to Lahore. The police also received the information that the appellant had a klashnikov with him which had been hidden through a Chaddar and if the police party stands opposite Mauza Sher Pao, the appellant can be apprehended. On receipt of this information, the aforesaid police party went to village Sher Pao and stood on soling opposite village Sher Pao. In the meanwhile, the appellant was seen coming in a Tonga. On receipt of the signal, the appellant was apprehended while sitting on the front seat and from underneath of Chaddar worn by him, klashnikov P.1, three Magazines P.2/1‑3 and 130 live bullets P.3/1‑130 were recovered and the same were taken into possession vide memo. Exh.P.B. attested by Nazir Ahmad A.S.I. P.W.2. Fazal Din, A.S.I. P.W.3 and Muhammad Aslam. Constable. The appellant failed to produce any valid licence to keep said weapon and, therefore, he was arrayed as accused person before the aforesaid Court.

3. At the trial, the prosecution placed reliance upon the testimony of the attesting witnesses of the recovery memo. With the assistance of the learned counsel for the appellant and the State we have carefully perused the record. We have also heard the contentions raised on both the sides. It is strange to note that while apprehending the appellant, the Tonga Driver was not cited as a witness. The prosecution explained this omission by saying that the driver slipped away from the place of occurrence. We are not prepared to believe the assertion of the appellant that in such circumstances, the driver of the Tonga could run away. The police party consisted of 22 officials and, therefore, it is difficult to believe that they would allow the Tonga Driver to run away. Even otherwise, in such circumstances, the Tonga Driver could not dare to have slipped away from the scene of occurrence. We are of the view that best possible evidence has been withheld by the prosecution and, therefore, the A presumption against it has to be drawn. Although, there is no legal requirement to produce such a witness but if a witness other than the police officials is present, he ought to have been produced. This circumstance, also costs doubt upon the prosecution case.

4. The appellant in his examination under section 342, Cr.P.C. stated that he had been involved on account of enmity at the instance of one Nisar who was involved in a murder case. It was also submitted by the appellant that in fact the klashnikov was recovered from said Nisar which had been planted upon him. To substantiate his plea, the appellant also led defence evidence by producing Mansoor Khan D.W.1 and Sana Ullah D.W.2. The tenor of the evidence of both the defence witnesses is that the appellant was arrested from his Dera and at that time he had no klashnikov with him. The defence witnesses further deposed that they had gone to the police station to enquire about the cause of arrest of the appellant but they were threatened by the police not to interfere. Not only the defence witnesses, but Nazir Ahmad A.S.I. P.W.2 stated that the appellant was also involved in a murder case and on his pointation the dead body was also recovered. All these circumstances and failure of the prosecution to produce an independent witness does not inspire confidence in the truth of the prosecution version. Apart from the Tonga Driver, it is not possible for us to believe that no other villager was present in F3 the nearby fields who could have been made to attest the recovery. Although the police officials are competent witnesses but the question is can we close our eyes towards their failure to bring investigation up to the mark so as to inspire confidence. Answer to this question is in the negative. On such flimsy evidence, we cannot play with the liberty of a citizen. Time and again it has been observed by us and it is also high time for the police to consider its r methods of investigation. Consequently, we accept the appeal, set aside the C conviction and sentence of the appellant and acquit him. He shall be released forthwith provided of course he is not required in any other case.

N.H.Q./M‑87/L ?????????????????????????????????????????????????????????????????????????????????? Appeal accepted.