AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR Versus MUHAMMAD ASLAM KHAN

SH.RIAZ AHMAD, J: -- The appellant, Inayat Ali son of Rehmat Ali, caste Bhatti, was tried on a charge under section 13 of the Arms Ordinance by a Special Court constituted under the suppression of Terrorists Activities Act, 1975. Vide judgment, dated 13-6-1993, the learned trial Judge found the appellant guilty on the aforesaid charge and thus he was convicted and sentenced to suffer R.I. for a term of four years and to pay fine of Rs.20,000 or in default thereof to suffer R.I. for a term of six months. Aggrieved by his conviction, the appellant has preferred this appeal before this Court.

2. The prosecution case, in brief, is that a police party was present at Multan Road to check the guards posted at the Banks. Accordiig to Javed Akhtar S.I. P.W.3, the police party noticed the appellant, clad in a Chaddar coming from the side of Waris Colony. Javed Akhtar S.I. P.W.3 checked him and found underneath the Chaddar, a Klashnikov P.1, a magazine P.2 and bullets P.3/1-6. These were taken into possession by the Police Officer vide memo. Exh.P.3, attested by Sabad Ali and Muhammad Akram F.Cs. besides Javed Akhtar, S.I. He prepared a complaint Exh.PA. at about 2-00 p.m. and sent it to the police station for registration of a case where formal F.I.R. Exh.PA./1 was recorded by Siraj Din A.S.I. P.W.1.

3. With the assistance of learned counsel for the appellant and the State we have carefully gone through the entire.record. The occurrence took place at 2-00 p.m. Multan Road is a busy road. The police party had gone to check guards posted at the Banks. It is strange that none from the public was made to join the investigation of the case and to attest the recovery. In answer to a question in cross-examination, Javed Akhtar, S.I. P.W.3 stated that since the Banks were closed, therefore, he could not ask any Bank guard or any bank official to join the investigation for attesting the recovery. This statement cannot be believed because the occurrence took place at 2-00 p.m. and the Banks do not close at 2-00 p.m. Even if they cease to work, the staff is there m the Banks. Further, admittedly, the passersby and many other persons were present and hence failure on the part of prosecution to ask any witness from the public to attest the recovery casts doubt upon the entire prosecution case. Even any resident of Waris Road was not made to join the investigation. The explanation offered by the prosecution that none was willing to come forward seems to be flimsy. It cannot be believed in the peculiar circumstances of the case. In this view of the matter, we are of the view that the prosecution has not been able to prove guilt of the appellant beyond reasonable doubt. Hence, the appeal is allowed and conviction and sentence of the appellant is set aside. He shall be released forthwith provided of course he is not needed in some other, criminal case.

N.H.Q./1-105/L Appeal allowed.