MUHAMMAD FIRDOUS Versus THE STATE

RASHID AZIZ KHAN, J: -- Muhammad Firdous was sent up for trial by Police Station Model Town, Lahore for an offence under section 13 of the Arms Ordinance, 1965. Special Court for Suppression of Terrorist Activities, Lahore vide judgment, dated 22-11-1992 convicted and sentenced him to five years' R.I. with a fine of Rs.50,000, or in default further R.I. for six months. The convict has appealed. This judgment shall dispose of the same.

2. The prosecution story in brief, as given in complaint Exh.PA. lodged by Makhan Khan, S.I., Anti-Dacoity Staff on 23-12-1989, was to the effect that during investigation of a case Muhammad Firdous was personally searched and stengun P.1 containing 10 live bullets was found in his possession. He could not produce any licence for the same, therefore, the present case.

3. The prosecution in support of its case produced three witnesses in all. The recovery effected at the instance of the appellant was proved by Abdul Majid and Makhan Khan, A.S.I. and Inspector, respectively, P.Ws.2 and 3. According to Abdul Majid, A.S.I., P.W.2 on 23-12-1989 at 4 p.m., he accompanied Makhan Khan, Inspector, P.W.3, and raided a house in Liaqatabad, where the appellant was found carrying stengun in his hand. He signed the recovery memo. Exh.P.C. In cross-examination he stated that the place from where the stengun was recovered, was a Bethak. Makhan Khan, Inspector, P.W.3 stated that he received information that 'some accused, including Firdous and one Tariq were preparing to commit dacoity. Therefore, he alongwith a police party raided the area of Kot Lakhpat and arrested the appellant who at that time was holding stengun P.1. The appellant at the conclusion of prosecution evidence was examined without oath, wherein he refuted the prosecution allegations and pleaded innocence.

3-A. We have gone through the evidence with the assistance of the learned counsel for the appellant and have heard him at length. In order to establish its case the prosecution had produced Abdul Majid, A.S.I. and Makhan Khan, Inspector, P.Ws.2 and 3, respectively. In their presence the alleged recovery of stengun was effected. We have noticed that statements of the witnesses are at variance. Both of them in their statements have given different place of recovery. P.W.2 Abdul Majid, A.S.I. stated that the recovery was effected from the house in Liaqatabad, whereas Makhan Khan, Inspector, P.W.3 stated that it was recovered from Kot Lakhpat, Nadim Park. He had also stated that he received secret information about the preparation of some of the accused regarding commission of dacoity. The same was mentioned in the F.I.R. Since the prosecution itself is not clear about the place from where the recovery of gun was effected, therefore, the recovery also becomes doubtful. There is no other evidence which could establish the charge against the appellant.

For what has been discussed above, we hold the prosecution has not been able to establish its case beyond reasonable doubt. We accept the appeal, set aside the conviction and sentence of the appellant and direct that he be released forthwith if not required in any other case.

N.H.Q./M-1547/L

Appeal accepted,