' SALAHUDDIN MIRZA, J.--- The F.I.R. Of this case was lodged under section 13-B of Arms Ordinance at 'B' Section Police Station, Latifabad, Hyderabad, by S.H.O. Of the said police station, at 23-00 hours on 14-1-1989. The facts as per F.I.R. Are that S.H.O. Khan Nawaz alongwith a police party consisting of L.N.C. Saeed Ahmad, Constable Ahmad Pasha, H.C. Muhammad Qadeer (Incharge of Police Post Manadhori), Constable Altaf Hussain and Driver Muhammad Yousuf left for patrolling in Government vehicle (number of vehicle not given) at 20-30 hours on 14-1-1989 vide entry No, 34 of Roznamcha. When the police party reached Tonay Panch Chowk' at 21-30 hours, the S.H.O.
Received spy information that Niaz Muhammad a boy of Aamir Colony Hyderabad, was carrying a Klashnikov rifle, wrapped in cloth and concealed under his jacket, with a cloth-sheet wrapped around him, from Hyderabad to Unit No,4 Latifabad, Hyderabad, for delivery to a friend, and was travelling in a Suzuki Pick-up and was scheduled to get down at Tonay Panch Chowk'. On receiving this information the S.H.O. Established Nakabandi at the said Chowk. At 22-00 hours a boy, with a cloth-sheet wrapped round him, got down from a Suzuki Pick-up and started going towards Unit No,4. On the signal given by the spy, the boy was apprehended and a Klashnikov rifle was found concealed upon his person in the manner earlier given by the spy. The boy gave his name as Niaz Muhammad. Mashirnama of his arrest and recovery of the Klashnikov rifle was prepared. H.C.
Muhammad Qadeer and L.N.C. Saeed Ahmad acted as Mashirs. The said boy was taken to police station where S.H.O. Lodged F.I.R. Under section 13-B, Arms Ordinance and after necessary investigation the challan was put up in the Special Court (Terrorist Activities), Hyderabad.
2. In support of its case the prosecution examined Khan Nawaz S.H.O. And H.C. Muhammad Qadeer as P.W.1 and P.W.2 respectively. Mashirnama of arrest and recovery was produced as Exh.4 and F.I.R.
As Exh.5. The appellant was examined under section 342, Cr.P.C. And he denied the charge.
According to him, he was an electrician and had gone to a shop in Hirabad to purchase some electric articles when at about 20-30 hours S.I.P. Khan Nawaz came there in a Suzuki, alongwith three or four persons in plain clothes, apprehended him and three other persons and took them to police station. Later, relatives of other three persons came to the police station and managed to free the said three persons. None approached the police station for the release of appellant whereupon he was beaten, Klashnikov rifle was foisted upon him and he was challaned under section 13-B of Arms Ordinance.
3. In defence the appellant examined two witnesses. D.W.1 Baboodin stated that his son Abid has a shop of electric goods near Roop Mahal, Hirabad, Hyderabad, that at about 20-00 hours he was taking tea (at a hotel) in front of the said shop when Sub-Inspector of Police Khan Nawaz came there in a Suzuki alongwith four persons and apprehended four persons--his two sons Sabir and Shahabuddin, appellant Niaz Muhammad and one Israr--and took them to police station. The witness asked the S.I.P. As to why the arrests were being made but the latter did not give any reply except saying that the witness could come to police station. The witness further stated that he took along five or six persons and went to Police Station Latifabad and got his two sons released and that Israr was also likewise got released by his relatives. D.W.2 Maqbool Ahmad says he was also taking tea at the hotel alongwith D.W.1 Baboodin and supports his version.
4. After assessing the above evidence, learned Judge of Special Court, vide impugned judgment, dated 16-4-1989, believed the prosecution version, discarded the defence evidence, found the appellant guilty under section 13-B of Arms Ordinance and sentenced him to suffer R.I. For three years and to pay a fine of Rs,1,000 or to undergo further R.I. For three months in default of payment of fine. The appellant has now come in appeal. Learned counsel of the appellant and learned A.A.- G. Have been heard and record perused.
5. The first point raised by learned counsel of the appellant is that there is no independent witness and the prosecution case is based merely on the statements of an S.I.P. And a Head Constable. We find force in the contention of learned counsel. We do not agree with learned trial Judge that Sub- Inspector of Police Khan Nawaz had satisfactorily explained the absence of independent evidence by saying that no private person was available at Toney Panch Chowk' at the relevant time as it was winter season and hotels and medical stores were closed at that late hour and that no enquiry could be made from Suzuki driver as he had gone immediately after dropping the appellant.
Learned Judge forgot to note that it was not a chance encounter with the appellant. The police party was duly organised for patrolling and had left police station at 20-30 hours. They should have arranged for an independent witness before leaving the police station and 20-30 hours is not an odd hour when no independent witness/Mashir could be found. Secondly, there was still time with the police party to find out independent witnesses/Mashirs after spy information was received but the S.I.P. Did not make any effort to procure independent and private witnesses/Mashirs. Thirdly, what prevented the S.I.P. From stopping the Suzuki and procuring independent witnesses/Mashirs from amongst its passengers and crew. They claim to have established Nakabandi at the Chowk and the Suzuki could not speed away after dropping the appellant. Even if it did try to do so, it could have been followed and overtaken by the Sub-Inspector of Police who had a Government vehicle at his disposal. The fact that the S.I.P. Made no such attempt, and contended himself with the evidence of himself and his head-constable, makes the prosecution case highly doubtful. The explanation of S.I.P. Khan Nawaz, far from being satisfactory, is absolutely unconvincing. Learned trial Judge has erred in believing the explanation of Sub-Inspector of Police for not having an independent Mashir or witness.
6. There are some contradictions in the prosecution evidence and learned trial Judge, after referring to one contradiction, observed that it was minor and could be ignored. Learned trial Judge, however, ignored other contradictions. We are of the view that in the special circumstances of this case in which there is no independent evidence and the entire prosecution case depends upon the deposition of Sub-Inspector of Police and his Head Constable, these contradictions become very material and shake the prosecution case to its very core. First, we would refer to the examination-in-chief of Sub-Inspector of Police Khan Nawaz in which he states that 'I prepared such Mashirnama in the light of street bulb in the presence of Mashirs Head Constable Muhammad Oadeer and Police Constable Saeed Ahmad'. In cross-examination he contradicts himself by saying that the Mashirnama was written (i,e, 'prepared') by Head Constable Qadeer. There is no explanation for this contradiction. Second, Sub-Inspector of Police Khan Nawaz says in cross- examination that he had called H.C. Qadeer from Mandahori Police Post under orders of D.S.P., Latifabad. However, H.C. Qadeer (P.W.2) does not support this version and states in his cross- examination that he was given oral order by the D.S.P. To go to 'B' Section Police Station of Latifabad. Thus, while according to H.C. Muhammad Qadeer he was directly ordered by D.S.P. To leave his police post and report at 'B' Section Police Station of Latifabad, the version of S.I.P. Khan Nawaz is that he had called H.C. Qadeer under orders of D.S.P. Third, while S.I.P. Khan Nawaz says that Mashirnama was written (i,e, prepared) by H.C. Qadeer, the latter states that 'then S.H.O.
Prepared Mashirnama of recovery in our presence'. Thus, both the prosecution witnesses disown writing of Mashirnama and attribute its writing to each other. Fourth, S.I.P. Khan Nawaz refers to the receipt of spy information but spy himself does not figure in his deposition according to which as soon as the Suzuki stopped and appellant alighted from it, he was surrounded and caught. On the other hand, according to H.C. Muhammad Qadeer, when the appellant alighted from the Suzuki, the spy told the police party that the appellant was the person concerned, whereupon he was surrounded and caught. All these contradictions may be minor in themselves, as observed by learned trial Judge, but taken cumulatively and seen in the background of the absence of any independent witness, these contradictions assume greater significance than learned trial Judge was inclined to give them. In our view these contradictions vitiate the authenticity of the prosecution evidence.
7. The story of spy information also appears to be doubtful. P.W2 H.C. Qadeer says that on reaching Poney Panch Chowk `S.H.O. Received spy information that one boy was coming from Aamir Colony alongwith Klashnikov rifle towards Latifabad in a Suzuki'. P.W.1 S.I.P. Khan Nawaz says that on reaching the said Chowk 'I received spy information that one boy coming from Aamir Colony in Suzuki was carrying one Klashnikov rifle wrapped in a piece of cloth towards Latifabad'. The says that 'I received spy information that in a Suzuki a boy of Aamir Colony Hyderabad namely Niaz Muhammad was carrying a Klashnikov rifle wrapped in a cloth and concealed under his wearing jacket over which he was wearing cloth sheet and that he was carrying the Klashnikov rifle from Hyderabad city to give it to a friend in Unit No,4,Latifabad and that he was to get down from Suzuki in Unit No, Toney Panch Chowk'. Now, what type of spy was he? If this story were to be believed, it would follow that the spy was no other than a friend and collaborator of the appellant. He helped the appellant in wrapping the Klashnikov rifle in a piece of cloth and in concealing it under his jacket, then helped him in putting a sheet of cloth around him, then accompanied the appellant upto the Suzuki Adda and saw to it that he boarded a Suzuki an then, after inquiring from the appellant as to where he would get down vad getting an answer that he would get down at Toney Panch Chowk', he himself boarded a still faster vehicle (may be his own car or motor-cycle) and rushed straight to the said Chowk (going nowhere else) and to his good luck found police party there and informed the S.I.P. Nothing can be more absurd than this presumption. How on earth could anyone get all these details--from the wrapping of the Klashnikov rifle in a piece of cloth and its concealment under the jacket to the boarding of a Suzuki and the knowing of the name of point of disembarkation, even knowing precisely in which particular Suzuki the appellant was travelling (since it is not the case of prosecution that the police party watched several Suzukis and from one, eventually, the appellant emerged). If this story were to be believed, we would have to concede that, if the spy was not a friend or collaborator of appellant, he must either be a Jeni or an angel as no one else can have such precise and complete information about somebody. After considering all aspects of this spy-myth, we are of the view that it is nothing more than a cock C and bull story.
The S.I.P. Has evidently been too enterprising in putting forth such a story.
8. It is also interesting to note that the spy knew (as per F.I.R.) that the appellant was carrying the Klashnikov rifle for giving it to a friend but the name of the said friend was neither given by the spy nor it was ascertained from the appellant during investigation. The said friend must be a terrorist if he required an unlicensed Klashnikov rifle but the S.I.P. Does not appear to have taken any action to apprehend him. This further discredits the spy-story.
9. We have already narrated the deposition of the two defence witnesses in the earlier part of this judgment. Learned trial Judge after observing that both the defence witnesses admitted that they did not complain to the Councillor and did not make any complaint against police and that the facts deposed by them were not suggested to S.I.P. Khan Nawaz, held that the defence version appeared to be false and unbelievable. Both the D.Ws. Claim to be eye-witnesses of the event.
According to D.W.1 Baboodin, his two sons, Sabir and Shahabuddin, and one Israr, were also picked up by S.I.P. Khan Nawaz alongwith the appellant at 8-00 p.m. From the shop of Abid, another son of the witness and he later got his sons released from the police station and that Israr was also got released by his relatives. No doubt, these facts were not put to S.I.P. Khan Nawaz in cross- examination and for that reason may not be believed but the further observation of learned trial Judge that both the defence witnesses admitted that they did not complain to the Councillor and did not make any complaint against police is going rather too far. There was no occasion for the D.Ws. To complain to the Councillor. Moreover, to whom, and with what prospects, should they have complained against police? They were humble persons and D.W.1 Baboodin felt satisfied by getting his sons released (may be, on payment of some 'ransom') and we would not expect them to make complaints against police to Councillor or to anyone else. As a matter of fact, D.W.1 Baboodin is an employee of Hyderabad Municipal Corporation and, notwithstanding the fact that the facts deposed by him were not put to S.I.P. Khan Nawaz in cross-examination, his deposition carries conviction.
10. After taking into consideration all the above-noted facts, we are of the view that the prosecution story is unbelievable, that learned trial Judge has misinterpreted evidence and grossly erred in relying on prosecution story, unsupported as it is by any independent evidence and even if the defence version is totally ignored, the prosecution story can still not stand on its own legs. We would, therefore, accept the appeal, set aside the impugned judgment and conviction and order that the appellant, if not wanted in any other case, should be released forthwith.