JEHAN KHAN Versus THE STATE

MUHAMMAD AMIR MALIK, J .--- Jehan Khan appellant (30/32 years) on trial for an offence under section 7 of the Surrender of Illicit Arms Ordinance, 1991 by Special Court for Suppression of Terrorist Activities, Gujranwala Division, Gujranwala, vide judgment, dated 19-5-1992 was sentenced to 10 years' R.I. with the benefit of section 382-B, Cr.P.C. Feeling dissatisfied he has appealed.

2. Nasrullah Khan, S.I. (P.W3) on 22-9-1991 while posted as Incharge Police Post-Charanwala, Police Station Parianwala, District Gujrat at 5-00 p.m. on a secret information raided the house of the appellant in Chak Khawaja where the appellant was present in a room and a sten gun with magazine and cartridges was lying there. The recovery evidence is provided by the Sub- Inspector who is corroborated by Basharat Ali, Constable (P.W.2).

3. The case of the appellant was that Muhammad Ashraf A.S.I. was his co-villager, was inimical to him and on his behalf he had been falsely involved in the case. He also pleaded that the case was investigated by Shahid Farooq, D.S.P. who confirmed his innocence. He produced Shahid Farooq, D.S.P. (D.W.1 in defence.

4. Learned counsel for the appellant contended that the case seems to be a cooked up one. After hearing the learned counsel and going through the record we are inclined to conclude that the case is not free from doubt. Nasrullah Khan, A.S.I. in cross-examination told that he received the secret information at 5-00 p.m. but the informant did not accompany him to the house of the appellant. The village comprised 70/80 houses but none from there was associated. He gave the explanation that the accused had enmity is the village and so due to friction none joined the police party. This fact he did not mention in the case diaries. He also told that he completed the complaint at 6-30 a.m. and 10/15 minutes before that the recovery was effected. He admitted that in the formal F.I.R. the time of occurrence was mentioned as 5-00 p.m. He could not explain the discrepancy. He showed ignorance that D.S.P. Headquarters, Gujrat had declared the appellant innocent or had recommended the case for discharge. He admitted that Muhammad Ashraf, A.S.I. was resident of Chak Khawaja. He also stated that he was informed by the appellant that Ashraf, A.S.I. was inimical to him. He, however, denied that at the instance of said A.S.I. he had falsely involved the appellant. He is contradicted by Basharat Ali, Constable (P.W2) who told that the people were not present when they reached the village and none was called. Later the people collected but none came near the police party. Shahid Farooq, D.S.P. stated that so far as the recovery was concerned it was genuine but the sten gun did not belong to the appellant nor he was wilfully keeping it in his possession. It transpired in his investigation that one Muhammad Ashraf, a police official, who was inimical to the appellant, had managed through two individuals, the placing of the sten gun in the house of the appellant, he wanted to inform the police about the incident but before that the house was raided by the police. To satisfy ourselves we have had a look to the case diaries and the plea was raised by the appellant at the very first instance when apprehended in which he is supported by the D.S.P. in the witness-box

5. The possibility, therefore, that due to the enmity of Muhammad Ashraf, A.S.I. co-villager of the appellant, the sten gun was got placed in his I house and the raid got conducted cannot be entirely ruled out.

6. The appeal is, therefore, accepted, the appellant is granted the benefit I of doubt. He is acquitted of the charge. The conviction and the sentence are hereby set aside. The appellant be released forthwith if not required to be detained in any other case.

N.H.Q./J-65/L Appeal accepted.