WALAYAT HUSSAIN Versus THE STATE

SH. RIAZ AHMAD, J.--- - The appellant was tried on the charge under section 13 of the Arms Ordinance by a Special Court constituted under the Suppression of Terrorist Activities Act, 1975, at Lahore for having kept in his possession without licence, a Kilashnikov, . P.1 alongwith magazine containing 17 bullets.

2. Vide judgment dated 28-7-1990, the learned trial Judge found the appellant guilty on the said charge and thus, he was convicted and sentenced to undergo rigorous imprisonment for a term of seven years and to pay a fine of Rs.30,000 or in default thereof to suffer further-rigorous imprisonment for a term of 1-1/2 years.

3. The appellant assails his conviction through this appeal which shall be disposed of by this judgment.

4. The prosecution case in brief is that on 9-2-1989, Mujahid Abbas, Inspector/S.H.O. alongwith Mukhtar Ahmad, S.I., nine police officials and Asif Ali was present in front of Millat Tractors Factory at Lahore-Sheikhupura Road. At about 2 p.m.; he stopped Suzuki Car No.194/LHR coming from Lahore side which was being driven by the appellant. During the search of the Suzuki Car, Klashnikov P.1 containing 17 bullets P.2/1-17 lying on the seat by his side was taken into possession vide memo. Exh.P.B. attested by Asif Ali (given up) and Mukhtar Ahmad, S.I. besides the Investigating Officer. Since the appellant failed to produce licence for keeping the Ylashnikov, therefore, he was arrested and sent up to face the trial.

5. The appellant allegedly was a Distribution Manager in Z.M.H. Textile Mills and there was a dispute between the management of Mills and the labour union and the appellant was representing the union and in course of this tussle, number of cases were registered. Without going into the details and the defence evidence, we will straightaway examine the prosecution case because it is the bounden duty of the prosecution to prove its case. The circumstances in which it is alleged that the recovery took place is suspicious, inasmuch as, Lahore-Sheikhupura Road is a busy road but none from the public was made to join the investigation; only Asif Ali attested the recovery but subsequently, he did not enter the witness-box and was given up. Besides ~1 that, there were four or five other persons also present in the Suzuki car but none of them was examined. According to the appellant, he was arrested in the premises of Ferozewala Courts and was taken into custody and then after tampering with the record showing different dates of arrest, appellant was involved in this case and the arms recovered had been supplied by the mills management.

6. The circumstances of the case are suspicious and we cannot rely merely on the basis of the statements of police witnesses to sustain the conviction. Hence we allow this appeal, set aside the conviction and sentences of the appellant. Her shell be realised forthwith if not required in any other case.

N.H.Q./W-46/L Appeal allowed