' DR. QAMMARUDDIN BOHRA, J.-This appeal is directed against the judgment dated 11-11-2004 in Sessions Case No,936 of 2001 passed by 1st Additional District & Sessions Judge, Karachi (South) whereby the appellant was convicted under section 13-D of Arms Ordinance, 1965, to undergo R.I.
For seven years with no benefit of section 382-B, Cr.P.C.
2. Prosecution case as emerges from two F.I.Rs, one bearing No,225/1 under sections 13-D and 7- C(1) of Arms Ordinance, 1965 and the other bearing No,226/01 under section 9C of Control of Narcotic Substances Act 1997 registered at P.S. Kalakot, Karachi, South, is that the complainant Sub-Inspector, Muhammad Yousuf Tanoli along with his party comprising A.S-I: Ijaz Ahmed, HC Nisar Ahmed 361, HC Ibrar Hussain 1072, HC Jamal Ahmed 5265, HC Ajmal Khan 878, PC Liaquat Ali 2684 and PC Saleh Muhammad 5363 was on patrol duty on 28-10-2001 when at about 0105 hours he reached Faqir Muhammad Durra Khan Road, Near Degree College and saw a person going towards Kishti Chowk on his motorcycle bearing No, LOD-5229, in a suspicious condition who was signaled to stop but the appellant accelerated the speed of his motorcycle and as such the motorcycle dashed with the mobile Van of the said police party and the accused was thus apprehended. The appellant disclosed his name as Younus Khaskheli son of Muhammad Umar. On personal search of the appellant, A.S.-I. Ijaz Ahmed in presence of one passer by namely Shafiq ur Rehman recovered one Kalashnikov bearing No, 19057025 along with loaded magazine containing 30 bullets, which was hanging on the right shoulder of the appellant and another magazine of K.K.
Loaded with 30 live bullets without valid arms licence from the right side pocket of his Qameez apart from seizing one plastic bag (theli) containing 150 rods of charas weighing 1-1/2 K.g. Lying on the petrol tank of the motorcycle of the appellant. The said A.S-I. Then sealed the recovered arms and ammunition and charas separately under a Mashirnama of arrest and recovery and brought the arrested accused at Kalakot police station where one F.I.R. Was registered under section 7-C (1) of Surrender of Illicit Arms and the other under section 9(c) of Control of Narcotic Substances Act 1997.
3. After completing the investigation police submitted challan in the Court.
4. Learned counsel for the appellant has contended that the Mashirnama of arrest and recovery does not disclose the time and entry when the police party left the police station for patrolling and even the Complainant has failed to produce a copy of the Roznamcha in support of his version given in Cross examination that the time was 8-00 p.m. Despite and opportunity being extended to him by the trial Court and he only has produced Photostat copy of Roznamcha entry dated 28-10- 2001 showing the departure time from the said police station at 12-00 hours instead of 8-00 p.m., which has vitiated the whole case of the prosecution.
5. It is next urged that the private mashir of arrest and recovery, namely, Maqbool ur Rehman son of Abdul Rahman was not even examined without any plausible reason by the prosecution as envisaged under Article 129 (g) of Qanoone-Shahadat, 1984. It is further urged that neither in the mashirnama of arrest and recovery nor in the charge sheet the prosecution has mentioned the address of the private mashir whereas Complainant, S-I. P. Muhammad Yousuf in his cross- examination in reply to a question put by the defence counsel that the name and address of the mashir is a fictitious one the said complainant has admitted that the address of the private mashir was written with different pen thus making the prosecution case more doubtful and as such the benefit of doubt must go in favour of the accused/appellant.
6. It is further contended that the two F.I.Rs, were registered under the same mashirnama of arrest and recovery and the case being Spl. Case No,1479/2001 was tried by the learned Judge of Special Court (C.N.S.) Karachi Division. Arising out of the F.I.R. Under section 9C of the Control of Narcotic Substances Act, 1997, wherein the appellant pleaded not guilty and denied the allegations levelled against him in his statement made under section 340, Cr.P.C. And the prosecution has failed to prove its case against him and giving the benefit of doubt the appellant was thus acquitted of the charge framed against him.
7. It is the case of the appellant that the appellant was not arrested on 28-10-2001 as claimed but was Picked up from Ali Bhai Welfare Trust. Syed Muhammad Bukhari Road by Kalakot police on 24- 10-2001 and kept in the lock up of Artillery Maidan Police Station, which according to the learned counsel is apparent from the admission made in his cross examination by S-I.P. Naseer Ahmed, Exh.11, that "the accused Younus remained in the look up of police station Artillery Maidan but I do not remember the date".
8. Learned counsel for the appellant further submitted that there are many material contradictions in the statement made by the prosecution witnesses and even the same are not in consistence with the statements recorded under section 161, Cr.P.C. And as such their evidence has become shaky and wavering creating dents and doubts in the prosecution case. He submitted that the learned trial Judge has failed to consider the fact the prosecution case is fraught with material infirmities and that the learned trial Judge has not appreciated the facts of the case in its legal and true perspective for the case under appeal and the special case tried by the learned Special Judge (C.N.S.) Karachi Division were the outcome of one and the same incident and circumstances.
Witnesses, mashirs and the complainant were same and the evidence led in the special case was not credible enough so as to make up the mind of the Special Judge to convict the appellant in the special case whereas the all the material on record of the special case has been placed in the instant case before the learned trial Judge and the learned trial Judge has erred in law and convicted the appellant.
9. Learned counsel for the appellant went on to say that the learned trial Judge has failed to consider the fact that the judgment in the special case was passed on 24-7-2003 and the State has never preferred any appeal against that judgment till date. Moreover, the, prosecution has examined only four official witnesses and dropped the most important and independent natural witness, Maqbool ur Rehman, who was a private person and mashir of arrest and recovery as claimed by the prosecution without any plausible reason or explanation moreso in the peculiar circumstances when the defence claims the alleged incident as doubtful and full of material contradictions in the statements of P.Ws. Under section 161, Cr.P.C. Learned counsel further submitted that the learned trial Judge has failed to take into consideration the evidence of independent two respectable witnesses produced in support of the appellant and has merely relied upon the evidence of the prosecution witnesses, which is full of contradictions. Learned counsel has further pointed out the failure of the learned trial Judge in considering the fact that according to PW.1 and P.W.2 Mashirnama was prepared by S.-I. Muhammad Yousuf Tanoli whereas P.W.3 says the Mashirnama was prepared at the police station by one PC Liaquat Ali who happened to be Munshi of S.H.O. And not even a witness to the incident.
10. Learned counsel for the appellant has also disputed the prosecution version of the incident that the appellant could have saved himself from his arrest by the police by changing his way while carrying arms and ammunition and charas after seeing the mobile van ahead of him and would not have preferred going behind the police mobile van and would not have overtook the mobile van on their signal to stop as he was more familiar with his residential area from where the prosecution alleges to have arrested the appellant.
11. Learned counsel has further attacked the judgment passed by the learned Ist A.D.J. Under section 13-D, Arms Ordinance, 1965 on the premises that the same is coram non judice as it was triable only by the learned Judicial Magistrate having jurisdiction in the matter under the law and the learned Ist A.D.J. Has not been fair enough in not extending the benefit of section 382-B, Cr.P.C.
Merely for the reason that the crime rate in the city has gone high for which the appellant cannot be held reasonable, that the learned trial Judge has not properly appreciated the evidence produced by the appellant in its true perspective, which has caused serious prejudice to the case of the appellant rather the learned trial Judge has given much credence and placed reliance upon the uncorroborated testimony of police officials, hence the conviction and sentence of the appellant is liable to be set aside and appellant be released forthwith.
12. In support of his submission, learned counsel for the appellant has placed reliance on the following authorities.
(1) 2002 PCr.LJ 51, (2) 2001 PCr.LJ 1762, (3) 2001 PCr.LJ 1736, (4) 1996 SCM R 308, (5) 1996 SCM R 167, (6)
NLR 1996 G234, (sic) (7) NLR 1996 G-120, (sic) (8) 1995 SCM R 1345, and (9) 2002 PCr.LJ 264.
13. On behalf of the State, learned counsel did not support the prosecution case nor the conviction awarded by the trial Court and conceded for acquittal of accused.
14. I have gone through the entire record of the case produced before me including the depositions of the witnesses and considered the submission made by the respective counsel.
15. At the very outset, it may be observed that the very story given in the F.I.R. Is on the face to it unbelievable that a person doing/carrying narcotic substances, keeping the same on the petrol tank of motor bike and also unlicensed arms i.e, Kalashnikov having on his shoulder and following the police van which is going ahead of him.
16. It is well-settled principle of law that it is the bounden duty of the prosecution to prove the offence by producing convincing and trustworthy evidence.
17. According to the prosecution the appellant was apprehended by the police party headed by S- I.P. Muhammad Yousuf Tanoli of P.S. Kalakot on 28-10-2001 at 8-00 p.m. And after securing one unlicensed Kalashnikov and one plastic theli containing 1-1/2 Kgs. Charas from the possession of the appellant/accused therefore two separate F.I.R.'s being No,225/2001 under section 13-D of Arms Ordinance and another F.I.R. No,226/2001 under 9-C of C.N.S. Act, 1997 were registered against him and both the cases were challaned in separate Courts and in both the cases same witnesses were examined.
18. Learned State Counsel while confronted with the submissions made by the learned counsel for the appellant has not been able to controvert the same and candidly admitted that the prosecution has failed to prove its case by producing convincing and trustworthy evidence on record.
19. Admittedly I.O./Complainant has not been able to produce documentary proof of leaving the Kalakot police station at 8-00 p.m. Which creates doubts about the veracity of the prosecution case as has been held in number of reported cases.
20. Admittedly there are material contradictions in the evidence of the witnesses produced on behalf of the prosecution, which is sufficient on the face B of it to say that appellant was not guilty of any offence and he was falsely and mala fidely implicated in the case and that the appellant was innocent.
21. It is admitted fact that the witnesses in two F.I.Rs, examined were same and their evidence was also same with little variation and the appellant was acquitted not believing prosecution story/evidence in F.I.R No,226/2001 tried by the learned C Special Judge (CNS) Karachi Division for which no appeal is preferred, while in the case under appeal the appellant was convicted and sentenced to suffer R.I. For seven years.
22. In light of above this Court is satisfied and of the considered opinion that the prosecution has miserably failed to prove its case against the appellant beyond any reasonable doubt, and also of the view that it is a fit case, which requires interference by this Court and it is a case for acquittal of the appellant, as such the appeal is allowed and the conviction and sentence vide judgment impugned in this appeal is set aside, appellant is acquitted of the offence charged. The accused/appellant present on bail and his bail bond stands cancelled and surety discharged.
23. Before parting with this judgment, I would like to observe that the observation of learned trial Court in respect of not extending benefit of section 382-B, Cr.P.C. Is completely devoid of the spirit of section. The very section is reproduced as under.
"382-B. Period of detention to be considered while awarding sentence of imprisonment.---Where a Court decides to pass a sentence of imprisonment on an accused for an offence, it shall take into consideration the period, if any, during which such accused was detained in custody for such offence."
A bare reading of above section clearly shows no discretion is available with the Court as word "shall" is used, which indicates it is mandatory.
24. Above are the reasons for the short order dated 6-10-2008 whereby the appeal was allowed, impugned judgment set aside and the accused / appellant acquitted of the offence charged.