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Criminal Appeal No. 221 of 1986, decided on 6th May, 1987.
---S.13--Evidence, appreciation of--Accused allegedly intercepted near a petrol pump while riding a motor-cycle and an unlicensed sten-gun alongwith some cartridges recovered from his possession, yet neither motor-cycle taken into possession nor any employee of petrol pump made to join recovery proceedings--Complaint and recovery memo also prepared by a Sub-Inspector of Police and not by the Raid/ Inspector--Solitary police, witness of occurrence also not examined during trial--Possibility that accused was falsely involved in the case at the behest of his enemies, not ruled out--Conviction and sentence set aside, in circumstances.
Mansoor-ur-Rehman Afridi for Appellant.
Zafar Yasin for the State.
Date of hearing: 6th May, 1987.
Briefly stated the prosecution case is that at about 12-10 a.m. (mid-night) on 29-1-1985, Inspector Asmat Ullah of C.I.A. Staff, Sargodha alongwith other police officials and Muhammad Sharif was present near Sharif Petrol Pump, Khushab Road, Sargodha. In the meanwhile, one person on motor-cycle No.STA/9761 came from Khushab side. He was asked to stop. He disclosed his name as Asjid Javaid. His person was searched. He was found in possession of sten-gun P.1, a hand bag (Jhola) P.2, magzines P.3 and P.4, 20 live cartridges P.5/1-20. These were concealed under a woollen Chaddar P.6. All these were taken in possession vide memo Exh. P. B. by Inspector Asmat Ullah P.W.3 in presence of A.S.I. Abdul Habib P.W.2 and Muhammad Sharif P.W., not examined. The accused Asjid Javaid did not have licence for the weapons. Inspector Asmat Ullah, therefore, drafted complaint Exh. P.A. at 12-45 a. m. on 29-1-1985 and sent the same to Police Station City Sargodha, about 2 furlongs away, where formal F.I.R. Exh. P.A./1 was recorded by Inspector Aman Ullah P.W.1 at about 1-00 a.m. on the same morning. The accused was challaned after completion of investigation.
2. The accused was charged under section 13, Arms Ordinance. He denied the charge and pleaded innocence. He examined Safdar Ali D.W.1 and Zafar Ullah Khan D.W. 2 to show that he has been implicated falsely in this case by the police at the instance of his enemies. The learned Additional Sessions Judge, Sargodha vide impugned judgment dated 19-3-1986 sentenced Asjid Javaid accused aged about 28 years to suffer five years' R.I. plus fine of Rs.3,000 or in default six months' R.I. under section 13, Arms Ordinance 1965. He was allowed benefit of section 382-B, Cr.P.C. Hence this appeal.
3. I have gone through the record of this case and have heard the learned counsel for the parties.
The record indicates that the complaint Exh. P.A. and the recovery memo. Exh. P.B. were written by Inspector Asmat Ullah P.W.3. However, in cross-examination it was stated by S.I. Abdul Habib P.W.2 that in fact the complaint Exh. P.A. and the recovery memo. Exh. P.B. were written by him on the dictation of Inspector Asmat Ullah who in cross-examination explained that his hand at that time was injured and as such, he dictated these documents to S.I. Abdul Habib. If the hand of Inspector Asmat Ullah was injured, he should have made a mention of this injury in the police diary or in the complaint Exh. P.A.. There is no evidence on record that the hand of Inspector Asmat Ullah P.W.3 was injured at the time of present recovery. In my view, the fact that all the documents were prepared by S.I. Abdul Habib P.W.2 makes the case against the appellant doubtful. Secondly, Muhammad Sharif P.W. who had witnessed the occurrence was not examined during the trial. It was admitted by S.I. Abdul Habib P.W.2 that Muhammad Sharif P.W. was helper of the police though not a stock witness. He further admitted that Muhammad Sharif joined investigation in several other cases. It, therefore, does not appeal to reason that such a person would join hands with the accused. He was the only public witness. The recovery was effected from a place near a petrol pump. No one employee of the said petrol pump was made to join the recovery proceedings in the instant case. Thirdly, it is in evidence that Asjid Javaid accused had reached the place of recovery on a motor-cycle. The said motor cycle was not taken in possession. There is no evidence to show as to who took away the motor-cycle of the accused after he was arrested by the police. This means that the police has withheld material evidence in this case which makes the recovery of incriminating articles from accused doubtful. Fourthly, a perusal of the evidence of Safdar Ali D.W.1 and Zafar Ullah Khan D.W.2 would show enmity between Asjid Javaid accused and Anwar Cheema Chairman, District Council and one Tariq Javaid. The possibility therefore, cannot be ruled out that the appellant was involved in this case on account of said enmity.
4. In view of the above discussion, I am of the view that the prosecution has failed to prove its case against the appellant. This appeal is accepted. The conviction and sentence of Asjid Javaid accused is set aside. He is acquitted. He shall be released from prison forthwith, if not required in any other case.
S.G.D./A-81/L Appeal allowed.
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