1. ' MUHAMMAD MOOSA K. LEGHARI, J.--- These appeals are directed against the judgment dated 30th April. 2002, passed by the learned Judge, Anti-Terrorism Court III, Sukkar and Larkana Divisions at Sukkur, whereby the appellants were convicted and sentenced as under: --
(i) Under section 295-A, P.P.C. Read with section 34, P.P.C. All the accused were convicted and sentenced to suffer five years' R.I. Each and to pay fine of Rs,50,000 each. In case of default in payment of fine accused shall suffer R.I. For 10 months more.
(ii) Under section 353,. P.P.C. Read with section 34, P.P.C. All of them were convicted and sentenced to R.I. For two years.
(iii) Under section 13(d), Arms Ordinance, accused Alam and Zahid were convicted and sentenced to suffer R.I. For five-years each.
(iv) Under section 13(e), Arms Ordinance, accused Alam and Zahid were convicted and sentenced to suffer R.I. For five years each.
(v) All three accused were also convicted and sentenced under section 7(b) of Anti-Terrorism Act, 1997 to suffer R.I. For five years and to pay fine of Rs,50,000 each, in case of default of payment of fine, accused were to suffer R.I. For 10 months more.
2. ' All the sentences were to run concurrently. Accused were however, granted benefit of section 382- B, Cr.P.C.
3. ' Precisely the facts disclosed by the prosecution are that on 8-2-2002 the complainant/S.H.O. Ali Gohar Qureshi received spy information that some persons armed with lethal weapons were coming to Nawabshah for creating sectarian bloodshed. Accordingly the S.H.O along with police personnel held Nakabandi at 3 watercourses Deh Nusrat. A Toyota Corolla car boarded by three accused persons was intercepted by the police. The accused were arrested, one pistol and one K.K.
4. Were recovered from accused Alam, a pistol and K.K. Were recovered from accused Zahid.
5. However, nothing was secured from the possession of accused Raza. Two rifles were, however, recovered from the dickey of the car. Accordingly F.I.R. Of Crime No,8 of 2001 was registered by S.H.O. Ali Gohar Qureshi on behalf of State.
6. ' The charge in the case was framed to which the appellants pleaded not guilty and claimed to be tried.
7. ' In order to prove their case the prosecution examined only 3 witnesses; namely, A.S.-I. Khan Muhammad Jamali, P.C. Khan Muhammad Soomro and complainant Ali Gohar Qureshi, who are all police officials.
8. ' On conclusion of the prosecution evidence the appellants/ accused were examined under section 342, Cr.P.C. They claimed to be innocent and stated that they were falsely implicated by the police.
9. Accused Raza Malik further stated that police snatched from his cloth worth Rs,25,000 and cash of Rs,5,000.
10. ' We have heard Mr. Allah Bachayo Soomro, learned counsel for the appellants, and Mr. Muhammad Azeem Panhwar, learned counsel for the State.
11. ' At the outset Mr. Muhammad Azeem Panhwar, learned counsel for the State submitted that the conviction recorded under sections 353, 295-A, P.P.C. Section 7 of the Anti-Terrorism Act and 13(e), Arms Ordinance was not supported by the evidence. According to the State Counsel the same was not sustainable in law and that he could not support the judgment to that extent. He however, faint-heartedly argued that conviction recorded under section 13(d), Arms Ordinance could be maintained.
12. ' Mr. Allah Bachayo Soomro, learned counsel appearing for the appellants argued that the conviction under section 13-D, Arms Ordinance, could not be maintained in view of the fact that the weapons so recovered were neither sealed on the spot nor those were sent to Ballistic Expert to arrive at a conclusion as to whether those were functional and that whether the weapons so recovered fell within the ambit of Anti-Terrorism Act. Apart from that no private person was associated to witness the recovery. Learned counsel further contended that there was interpolation in the Roznamcha entry produced by the S.H.O. Which was doubtful. It was urged that the accused while recording their statements under section 342, Cr.P.C. Had produced license of certain weapons, which were foisted upon them.
13. ' We have considered the arguments advanced at the Bar, examined the judgment and perused the R&Ps.
14. ' A bare perusal of the impugned judgment will reveal that the discussion does not contain a single sentence with regard to evidence on record to arrive at a conclusion that the appellants were guilty of the offence punishable under section 353, P.P.C. The F.I.R. Does not contain any allegation with regard to assault or use of criminal force by the accused to deter the police from discharging their duty. P. W.1 A.S.-I. Khan Muhammad merely says that the accused offered resistance against conducting the search. P.W.2 P.C. Khan Muhammad says that the accused refused to come down.
15. P.W.3 complainant in his deposition did not say as to how the police party was deterred from discharging their duty. On the contrary, in his examination-in-chief the complainant has deposed that on his directions the driver opened the dickey of the car. This evidence is enough to show that instead of deterring the police, the accused obeyed their orders. There is absolutely no allegation regarding assault or use of criminal force by the accused/appellants against police.
16. ' It was quite dismaying to note that despite the charge being devoid of evidence; learned trial Judge proceeded to convict the accused C under section 353. P.P.C. Without discussing it in the judgment. Such conviction is patently illegal.
17. ' So far as the conviction recorded under section 295-A, P.P.C. Is concerned, it was recorded on the sole statement of complainant, who made such allegation on the basis of spy information. No evidence whatsoever was produced by the prosecution to substantiate the charge that the appellants attempted to insult the religion or religious beliefs of any class/sect. Nonetheless, the complainant deposed before the Court that the appellants admitted before him that they were carrying the illicit arms for selling the same to the sectarian group. Even if such version of the complainant is accepted to be gospel truth, how the selling of the illicit arms to a undisclosed sectarian group could tantamount to outraging the religious feelings of any class of citizens of the country or an attempt to insult the religion or the religious beliefs, is beyond comprehension. This is nothing more than a mere conjecture, not warranting conviction.
18. ' From the above it is evidently clear that either the learned Judge was completely ignorant of law, or he was nursing malice against the appellants, and the conviction was recorded for extraneous reasons. This conduct on the part of a senior Judicial Officer was shocking.
19. 'Similarly the conviction awarded under section 13(e). Arms Ordinance and section 7 of the Anti- Terrorism Act was illegal. It was neither substantiated by the evidence on record, nor it was based on legal foundation. In the circumstances of the case, the above penalties were absolutely not attracted.
20. ' In view of the fact that the aforesaid convictions recorded against the appellants were patently illegal. We are persuaded to concur with the contention of learned State Counsel. We are of the considered view that the learned State Counsel has rightly stated that the conviction recorded under sections 353, 295-A, P.P.C. Section 7 of Anti-Terrorism Act and 13(e), Arms Ordinance was without evidence, violative of law and illegal.
21. ' As far as the conviction awarded to accused Alam and Zahid under section 13(d), Arms Ordinance is concerned, it may be observed that the weapons so recovered from the appellants were neither sealed on the spot nor those were sent to the Ballistic Expert for soliciting his opinion to arrive at a conclusion whether the weapons so recovered were in operational and functional condition and further that those did fall, within the category of weapons exclusively triable by the Anti-Terrorism Court. Besides that quite surprisingly the weapons allegedly recovered were neither produced in Court nor were exhibited. Those were not even confronted to the appellants while recording their statements under section 342, Cr.P.C. Though the Roznamcha entry was produced but an interpolation was noticed in the said entry which was visible with the naked eye. Noticeable interpolation in the Roznamcha entry had rendered it to be dubious and inconsequential. Having come across such circumstances we find it impossible to maintain the conviction recorded under section 13(d), Arms Ordinance.
22. ' On the basis of above discussion we have arrived at an irresistible conclusion that the judgment of conviction and sentence is perverse, capricious and absolutely illegal which could not be sustained. Accordingly we allow this appeal. The judgment of conviction and sentence passed by the learned trial Court is hereby set aside and the appellants are acquitted. The appellants have been produced in custody and are remanded. They shall be released forthwith if not required to be detained in any other case.
23. ' As observed in the preceding paragraphs the facts lead to an irresistible conclusion that likelihood of lodging of a concocted F.I.R. Against the appellants cannot be ruled out, which calls for an action against the complainant S.H.O. Let the copy of this judgment be sent to the Inspector-General of Police, Sindh for taking appropriate disciplinary/legal action against the complainant/S.H.O. Ali Gohar Qureshi. The outcome of the proceedings so initiated against the Police Officer shall be communicated to the Additional Registrar of this Court within a period of six months.
24. ' As is evident from the above discussion, learned trial Judge instead of deciding the case in a judicious manner, obliged the complainant S.H.O. By putting the stamp of approval on a dubious case.
25. ' We are of the firm view that the learned Judge while recording the judgment of conviction acted in a perverse manner. He needs a note of caution. Let a copy of the judgment be sent to the learned Judge as well as to the learned Registrar for record.