The accused has been challaned by C.
1. A. Police of Offence under sections 415 of Explosive Substances Act, 1908. The case against him is that on 20-12-1978 Mr. Muhammad Amin Malik S. I. C.
I. A. Karachi arrested the present accused in connection with F. I. R. No. 237 of 1978 under section 13- D, Arms Ordinance. On interrogation the accused is alleged to have admitted possession of hand- grenade with detonators in his house. It is alleged that the accused on the same date led Mr. Muhammad Amin and two mashirs namely, Muhammad Rafiq and Muhammad Abdullah to his house and produced a live band-grenade before him. Mr. Muhammad Amin secured the band- grenade, prepared the memo of recovery and lodged such F. I. R. With Garden Police Station within whose jurisdiction the house of the accused was situated. The S. 1. Wrote a letter to S. P. For obtaining necessary permission from the Home Department under section 7 of the above Act for prosecution of the accused. Such sanction was issued by the Home Department by their letter dated 2-1-1979. Thereafter, challan was submitted in this Court as the offence was a Scheduled Offence under section 2(b) of Suppression of Terrorist Activities (Special Court) Act, 1975.
2. The accused has pleaded not guilty to the charge and has stated that the hand-grenade has been foisted upon him by the C. I. A. Police.
3. The only question for determination in this case is whether the accused was found in possession of a hand-grenade with a detonator under circumstances which gave rise to a reasonable suspicion that he possessed the same without any lawful object ?
The answer to the above question is in the negative for the following reasons
4. In support of the above case P. W. Muhammad Rafiq (Exh. 4) Muhammad Abdullah (Exh. 5) and Muhammad Amin Malik (Exh. 7) have been examined. The independent witnesses Muhammad Rafiq and Muhammad Abdullah have not supported the prosecution case. They have clearly stated that nothing was produced by the accused in their presence and that they saw the hand- grenade only at the police station. Both these witnesses were declared hostile by the Special Public Prosecutor. Hence the evidence of these two witnesses is to be ignored so far as the question of recovery of the incriminating article from the accused is concerned. Thus the only evidence against the accused is solitary word of Mr. Muhammad Amin Malik that the accused had produced a hand-grenade with detonator which he had brought from his house. He has also admitted that the house did not belong to the accused and that the owner of the house was also present who bad stated that the room from where the accused had brought the hand-grenade, was in possession of the accused who lived there. This owner, whose name transpires from the Police papers, as Muhammad Bashir, was examined by the Police during investigation. He would have been the most important witness being a witness of the spot. But he has not been examined at the trial. On the contrary two mashirs who did not live in the locality where the house in question was situated, have been examined. Non-examination of the owner of the house, would justify an adverse inference against the prosecution to the effect that had he been examined he would not have supported the prosecution case.
5. The case of the accused is that he was in fact arrested on 17-12-1978, kept in custody for three days by the C. I. A. Police and that on 20-12-197$ the hand-grenade was foisted upon. The case of the prosecution is that the accused was. Arrested on 20-12-1978 and not on 17-12-1978. However, the F. I. R. Exh. 6-B produced by Mr. Muhammad Khan S. H. O. Of the Garden Police Station shows that Mr. Muhammad Amin had left the Police Station on 17-12-1978. This date is specifically mentioned in column No. 1 of the F. I. R. Mr. Amin Malik was cross-examined about this entry in column No. 1 of the F. I. R. But he stated that this date has been wrongly inserted by Mr. Muhammad Khan in the F. I. R. However, the F. I. R. Exh. 6-B was recorded after the accused was arrested and he was arrested on the same date when Mr. Muhammad Amin Malik had left his office for patrol duty on this date. He has given this date in his deposition as 20-12-1978. But the entry in Exh. 6-B falsifies the statement of Muhammad Amin and it on the contrary supports the plea of the accused that he was arrested on 17-12-1978 and was kept in illegal custody for three days and that on 20-12-1978 this case was fabricated against him. Mr. Muhammad Ibrahim Memon frankly stated that the solitary word of Mr. Muhammad Amin Malik was not sufficient to establish the factum of recovery of the hand-grenade from possession of the accused and that the case against the accused is doubtful.
6. The question as to what evidentiary value should be attached to the evidence of a solitary witness in the case where the only other witnesses, namely, two mashirs have turned hostile, came up for the consideration in the case of Suffer and others v. The State (1982 P Cr. L J 826), decided by a D. B. Of this Court. The relevant observations, which are fully attracted to the present case, made by the D. B. Are as under :- "It is an admitted position that both the private mashirs to the two recoveries in question have not supported the prosecution. The solitary evidence to the recovery is of P. W. 7 Abdul Majid, the Investigating Officer. In our view, the discrepancy in the statement between the private mashirs and the Investigating Officer particularly in view of the fact that P. W. Ghulam Ali who was a Nekmard of both the complainant and the appellant's parties has not supported the prosecu--tion, has created doubt as to the recovery itself and, therefore, cannot be relied upon as a piece of independent sufficient corroborative evidence to lend support to the testimony of the interested and hostile witnesses, as to sustain the conviction."
In view of the above observations, I am fortified in the view that the solitary word of Muhammad Amin Malik cannot be relied upon for convicting the accused, particularly when his evidence is in conflict with the entries in the regarding the date of arrest of the accused.
7. The state of evidence described above does not bring home to the accused the offence with which he has been charged, beyond a reasonable doubt. The solitary statement of Muhammad Amin Malik in the absence of the other evidence which was available, that is, the owner of the house Muhammad Bashir, cannot be deemed to have proved the factum of recovery of the incriminating article from the possession of the accused. As the case against the accused is doubtful, hence I give benefit of doubt to the accused and acquit him of the offence with which he has been charged. He is on bail his bail bond stand discharged.