MUHAMMAD IJAZ Versus THE STATE
1. SH. RIAZ AHMAD, J.-- - The appellant Muhammad Ijaz alias Qulfi was tried by a Special Court constituted under the Suppression of Terrorist Activities Act, 1975 on the charge under section 7 of the Illicit Arms Ordinance, 1991 for having kept a Klashnikov in his possession without a licence. Vide judgment, dated 28th of March, 1993, the appellant was found guilty on the said charge and was thus, convicted and sentenced to undergo rigorous imprisonment for a term of three years. Aggrieved by his conviction, the appellant has preferred this appeal which shall be disposed of through this judgment.
2. The prosecution case in brief is that on 10th of November, 1991, the appellant was in police custody and had been arrested in a criminal case and during its investigation, he disclosed that he had kept a Klashnikov in his residential house and he could get the same recovered. Accordingly, Ishtiaq Ahmad, S.I. P.W.4 formed a party consisting of Mumtaz Hussain, A.S.I. (P.W.3) and Farooq Ahmad P.W.2 and thus the party proceeded to the house of the appellant. The prosecution case is that from the roof of the house, the appellant brought out a Klashnikov P.1 from the box of pigeons alongwith magazine P.2 which were taken into possession vide memo. Exh.P.C. attested by P.W.2 Farooq Ahmad, A.S.I. Mumtaz Hussain, P.W.3 and the S.I. Ishtiaq Hussain. It may be stated here that on the receipt of the complaint Exh.P.A. by Ishtiaq Ahmad, S.I., A.S.I. Mumtaz Hussain registered formal F.I.R. Exh.P.B.
3. To prove its case at the trial, the prosecution placed reliance upon the statement of three recovery witnesses referred to above. Farooq Ahmad who was a public witness and was made to join the investigation and attested the recover was declared hostile as he did not support the prosecution case. Thus fate of the prosecution case hinges upon the testimony of Mumtaz Hussain. A.S.I. and Ishtiaq Hussain, S.I.
4. When examined under section 342, Cr.P.C. the appellant denied the charge and placed on record Exh.DA. to Exh.D.C. The most important document in this case is Exh.D.B. This application, dated 30-10-1991 was moved by the appellant and his co-accused before the Cantonment Magistrate, Lahore, wherein, it was alleged that they could not appear on the said date because the police had arrested them. Exh.DA. is the order of the Magistrate passed on that application. Exh.D.C. is an order passed in a writ petition filed by Allah Rakha, the father of the appellant and his other family members against S.S.P., Lahore wherein it was complained that the family of the appellant was being harassed and brother of the appellant Muhammad Ilyas had been detained illegally. This habeas corpus petition was disposed of by our learned brother Mr. Justice M. Munir Khan vide order, dated 2-2-1991. It may be stated here that the said writ petition became infructuous because Muhammad Ilyas brother of the appellant had been released by the police. On Exh.DA. the Magistrate had passed order that the counsel for the appellant has stated that his client had been arrested by the police and thus, the case was adjourned.
5. With the assistance of the learned counsel for the appellant, we have carefully perused the evidence on the record. The learned counsel for the appellant has vehemently contended that the defence evidence is cogent and should have been believed but unfortunately, the learned trial Judge did not advert to it nor discussed it in the impugned judgment.
6. We have gone through the judgment impugned and we find that the learned trial Judge has not at all applied his mind to the defence version and that public witness Farooq Ahmad. P.W.2 was declared hostile and the defence evidence seems to be true and it reflects upon the prosecution case if juxtaposed with it, we find that the appellant was not arrested on 10 th of November, 1991 as alleged by the police. He was in police custody since 13th of October, 1991 and, therefore, possibility cannot be ruled out that a Klashnikov in this case was planted upon the appellant.
7. For the foregoing reasons, we are of the view that the prosecution case is doubtful and thus the benefit of doubt should be given to the appellant. Consequently, we allow this appeal, the conviction and sentence of the appellant is set aside. He shall be released forthwith if not required in any other case.
8. N.H.Q./M-1446/L ??????
9. Appeal allowed.