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Criminal Appeal No. 436 of 1972, decided on 18th February 1974.
-----Witness‑Reliability‑One prosecution witness a stock witness having participated in large number of police investigations‑Other witness living at a distance of 18 miles from place of occurrence and not giving satisfactory explanation of his presence ‑Investigating Officer unable to provide any satisfactory explanation regarding arrangement of naka‑bandi party‑Such evidence, held, unreli able‑Conviction and sentence set aside in circumstances of case West Pakistan Arms Ordinance (XX of 1965), S. 13.
Syed Ahmad Saeed Kirmani for Appellant.
Khawaja Muhammad Yousaf for A.‑G. for the State.
Dates of hearing : 1st and 4th February 1974.
The appellant, Ashiq Hussain has been convicted by the Sessions Judge at Mianwali for an offence under section 13 of the West Pakistan Arms Ordinance and has been sentenced to rigorous imprisonment for a period of two years. The appellant has filed this appeal against his conviction and sentence.
2. The appellant was involved in a murder case. On the night between 31st of July and 1st of August, 1970 a naka‑bandi party arrested the appellant from R. D. 82000. At that time he was in possession of a gun (12 bore) and two live cartridges. Since he did not have any licence for keeping the same a case under section 13 of the West Pakistan Arms Ordinance was registered against him.
3. The appellant pleaded not guilty to the charge against him and denied that the gun or the cartridges were recovered from his possession. He disowned the gun and the cartridges.
4. In support of its case the prosecution has relied upon the testimony of Falik Sher (P. W. 1), Niaz Hussain (P. W. 2) and Muhammad Iqbal (P. W 3.). All these witnesses have deposed that they were members of the naka‑bandi party which arrested the appellant while in possession of the gun and the cartridges.
5. It appears from the evidence of Falik Sher that he is a stock witness of the police. Not only he has participated in a large number of police investigations but is also wont to attend the police station for offering Salam. For obvious reasons, he cannot be considered as a reliable witness. Niaz Hussain lives at a distance of 18 miles from the place where the appellant was arrested and he was unable to give any satisfactory explanation as to how he happened to be present with the naka bandi party. The Investigating Officer was also unable to provided any satisfactory explanation how be arranged A the naka bandi at the place where the appellant was arrested, He merely stated that he had organized a general naka bandi party.
6. For the reasons stated above we do not think that the story with regard to the organising of the naka‑bandi party is supported by reliable evidence. Accordingly we set aside the conviction and sentence of the appellant and direct that he shall be acquitted. He shall be set at liberty forthwith if not required in any other case.
Appeal accepted,
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