MUHAMMAD YOUSAF vs THE STATE

' ASIF SAEED KHAN KHOSA, J.--- Muhammad Yousuf appellant was convicted for an offence under section 13 of the Pakistan Arms Ordinance, 1965 vide judgment, dated 16-11-2000 passed by the learned Special Judge, Suppression of Terrorist Activities Court, Multan and was sentenced to rigorous imprisonment for three years and a fine of Rs,5,000 or in default of payment thereof to undergo simple imprisonment for six months.

2. The allegation levelled by the prosecution against the appellant was that on 16-12-1998 he was apprehended by Muhammad Ashraf, A.S.-I. (P.W.3) and the other members of the police raiding party and a stengun like Kalashnikov as well as 23 live bullets were recovered from his possession for which he did not possess any valid licence. In support of its case the prosecution had produced Muhammad Afzal, F.C. (P.W.2) and Muhammad Ashraf, A.S.-I (P.W.3) so as to prove the alleged recovery from the appellant. As against that Javed Ali Mirza, D.S.P. (D.W.1) had been produced by the appellant in his defence who had categorically maintained that on the basis of his investigation it had been established that the weapon in question had been planted by Muhammad Ashraf, A.S.-I. (P.W.3) upon the appellant and that the entire prosecution's case regarding the alleged recovery was nothing but concoction incarnate. In this context, utilizing the power under subsection (2) of section 172, Cr.P.C. We have also gone through the police file and the case diaries and have noticed that the case in question had also been investigated by Kifayat Hussain, D.S.P., C.I.A. Who had, on the basis of the statements of many witnesses, arrived at a conclusion that the prosecution's story built up in the F.I.R. Was a figment of imagination of Muhammad Ashraf, A.S.-I. (P.W.3) as the same had no nexus with the truth. Although the case diaries mentioned above cannot be utilized by us as a piece of evidence but they can certainly throw light on this case so as to aid and assist us in arriving at the truth. It has, thus, been taken note of by us that the evidence led by the prosecution through the mouths of Muhammad Afzal, F.C. (P.W.2) and Muhammad Ashraf, A.S.-I. (P.W.3) was contradicted and given a lie to by two of their superior officers of the rank of D.S.P., one of whom had made a statement before the learned trial Court on oath as D.W.1.

3. It has also been noticed by us that the prosecution was never sure of as to what kind of weapon had actually been recovered from the appellant's custody at the relevant time. In this context it has been noticed by us that according to the F 1 R. And the recovery memo. (Exh.P.B.) a stengun like Kalashnikov had been recovered from the appellant's possession whereas P.W.1, who was an expert had described the weapon in question as a rifle and P.Ws.2 and 3 had maintained before the learned trial Court that the weapon recovered from the appellant's possession was a Kalashnikov.

The recovery memo. (Exh.P.B.) as well as the F.I.R. (Exh.P.C.) show that the weapon in question was a locally manufactured contrivance. In these circumstances the doubt as to real nature of the weapon allegedly recovered from the appellant further deepens the doubt cast upon the veracity of the statements of the abovementioned two prosecution witnesses.

4. For what has been discussed above the doubts in this case stand compounded manifold and, thus, the benefit of the same must necessarily go to the appellant. This appeal is, therefore, accepted, the conviction and sentence of the appellant recorded by the learned trial Court are set aside and the appellant is acquitted of the charge. He shall be released from jail forthwith if not required in any other case.