SYED ABDUR RAHMAN, J.-Appellant, Akhtar Hussain, has challenged his conviction under Section 9 read with Section 13 (e) of the Arms Ordinance, 1965, and sentence of six years imposed upon him by the Special Court-I, (Suppression of Terrorist Activities) Karachi, by its judgment dated 15-4- 1990. The appellant was extended benefit of Section 382-B Cr.P.C, and the period of 222 days during which he remained as under trial prisoner, was deducted from the above sentence.
2. The prosecution story in brief is that on 5-9-1989 at about 1.00 p.m, a police party, headed by Inspector Muhammad Lateef of CIA, was on patrol. It was also joined by SIP Muhammad Nusrat. On spy information that some persons were sitting in a car near Bhingoria Village and were making preparation to comit a dacoity, the police party after picking up Mushtaque Ahmed, Mashir, who was standing near railway crossing reached the scene of offence at about 3.00 p.m. They noticed a car near Al-Mecca Masjid and surrounded it. The present appellant and four other persons were found sitting in the car, who were arrested. From the possession of the present appellant, one kalashinkove with a magazine containing four rounds, was recovered for which he had no licence.
The mashirnama of arrest and recovery was prepared. A report was drawn up by Inspector Muhammad Lateef at the spot which was forwarded to Jauharabad Police Station and was lodged in 154 Cr.P.C, book as Crime No. 463/1989. After usual investigation the appellant was challaned before the Special Court- His four companions were also sent up separately with challans before the same Court. The trial against the appellant as well as his companions proceeded separately.
The appellant pleaded not guilty to the charge and claimed to be tried. At the trial the prosecution examined Moula Dad Ballistic Expert, Mushtaque Ahmed mashir, Muhammad Nusrat SIP, Muhammad Lateef Inspector, Bakhtawar Ali SIP, Muhammad Ibrahim mashir and Asghar Ansari the nephew of the owner of the car in question.
3. Ir his statement under Section 342 Cr.P.C, the appellant denied the prosecution allegations and alleged that he arrested from his house on 1-8-1989 at 2.0 a.m. And not from Bhingoria Village,, near Al-Macca Masjid or from the disputed car. He has alleged that the kalashnikov rifle and the ammunition have been foisted upon him. He has imputed motive against Inspector Muhammad Lateef that he was pressing him to give whereabouts of one Murad who was involved in a 307 PPC case with him in 1987 and on his inability to do so, he was involved in this false case. The appellant neither examined himself on Oath under Section 340 sub-section (2) Cr.P.C, nor he has chosen to lead any defence. The learned trial Court after assessment of the evidence on record believed the evidence of the prosecution witnesses and disbelieved the version of the appellant and convicted and sentenced him as shown aboves.
4. Mr. Mansoob Ali Qureshi, advocate for the appellant contended that the evidence of mashirs Mushtaque Ahmed and Muhammad Ibrahim, whose testimony seems to have been considered weighty by the trial Court against the appellant are stock witnesses of the police having appeared in as much as 20 cases investigated by Inspector Muhammad Lateef and should not have been believed at all. There is good deal of force in this contention. PW Mushtaque Ahmed appears to be a liar. The following abstract from his cross-examination would confirm this fact.
"Prior to this I have not been made witness in any case of Inspector Muhammad Lateef. I may have been a witness in about 20 cases investigated by Inspector Muhammad Lateef but I have not so far given evidence in any of these cases."
Mushtaque Ahmed, mashir, has also denied his previous acquaintance with Muhammad Ibrahim, the co-mashir, but under the force of cross-examination he had to admit that both of them had acted as mashirs in number of cases investigated by Inspector Muhammad Lateef. The testimony of Mushtaque Ahmed and Muhammad Ibrahim in the Cross-examination has not only discredited their evidence but has revealed that they were touts of Muhammad Lateef Inspector and their evidence was not worthy of any value whatsoever. Similar argument was also advanced before the learned trial Judge who dismissed the same with the following observations:- " There is another aspect of the matter which the Courts must take into consideration in regard to the status, respectability and residence of witnesses to the search, and that is the total apathy, may active objection by respectable persons being made as mashirs. Their apathy and objection is founded on two valid grounds. The first is the length of the trial of the case in which they have been made mashirs and the number of times that they have to attend the Courts to have their evidence recorded, due to non production or absence of accused, requests by one or the other side for adjournment, case not being reached due to heavy cause list and several other canses which need not be mentioned here. The second and more potent ground is the fear of the accused, particularly where they have been involved in very serious crim| or they are of dangerous and desperate character, and of their friends and supporters. The problem has been compounded by the unfortune ethnic violence which seems to have unfortunately engulfed the Province of Sindh. In these circumstances the securing by the police of respectable witnesses of the locality would often pose a herculean task, In these circumstances, in my respectful view, perhaps a realistic approach would be that, except in those cases where there is requirement of law that mashirs should be respectable persons of the locality, there should not be insistance in other cases of search for or the presence of mashirs of locality, or, if present, their fulfilling the strict requirements of law, though still requiring strict and satisfactory proof of recovery, dopetiding upon the circumstances of each case."
The observations of the learned trial Judge are not convincing. We are not in agreement with the reasoning given by the learned trial Judge. It appears to be sentimental rather than legal. The assessm ent of the evidence by the learned trial Judge can hardly be called as rational or balanced.
5. The evidence of the above witnesses, who were also examined in the cases against the companions of the appellant, were subject of assessment in two criminal appeals by Division Bench of this Court, i.e., Criminal Appeal No.73/1990 filed by Muhammad Khalil and Cr. Appeal No.76/1990 filed by Mazhar Hussain, who were arrested alongwilh the appellant in the same transaction. In Cr. Appeal No.76/1 WO the Division Bench while discarding their evidence observed as under:- "We have taken into consideration all these judgments. So far as the two mashirs are concerned, it is evident that both of them have acted as mashir in numerous cases in which Inspector Abdul Lateef was the Investigating Officer. PW-2 Mushtaque Ahmed could not deny a suggestion that he had acted as mashir in as many as 20 such cases. It may be that independent persons are not available at any given time to act as mashir and police officials may employ their acquaintances to act as mashirs and such mashirs may still be believed if their authenticity is not otherwise shown to be suspect, but when such mashirs try to hide their relations with the police and pose as totally independent persons who were asked to act as mashir at the super of the moment, but are forced to admit the falsity of their claim in this regard, they can obviously not be believed and, therefore, we would not attach any value to their testimony, Learned trial Court erred in relying on the testimony of these two witnesses.
Even otherwise, the evidence of the police officials does not inspire confidence. Take, for example, the investigating officer, Inspector Latif of CIA. He stales that he picked up another mashir Mushtaque from near the railway level crossing. Now, Mushtaque is known to him for at least six months per his own admission and has acted as mashir in about 20 of his cases and it is difficult to believe that he found Mushtaque by chance at the level crossing. There was no harm if he had slated plainly that he knew one Mushtaque and had earlier arranged with him to act as mashir and he had come to CIA office at the appointed time and had accompanied him from there. He, however, tried to give an impression that Mushtaque was a total stranger to him and was picked up at the spur of the moment. Secondly PW-T SI Nusrat does not speak of getting any spy information while patrolling. According to him, the police party from the very beginning had set out for the spot near the mosque in Blungoria village because the police party had information that "accused- in a dacoity case were to be found there." However, Inspector Lateef (PW4) states that they had no such information when the police parly embarked on patrolling duly at 1.00 P.m. On 5- 9-1989 arid that they had simply set out "for the purposes of prevention of crime" and that it was at 2.00 p.m. When they were at Gharibabad Chowrangi that spy information was received about the appellant and four others being present near a mosque in Bhingoria village. This is serious contradiction as regards a material fact and learned Stale counsel could not explain it to our satisfaction. It is also highly improbable that no one would have gathered around the police party and the car of the appellant after the appellant and his four accompoliees were apprehended, as stated by PW 4 Inspector Latif in his cross-examination. This is contrary to human nature and judicial notice can be taken of the fact that on such occasions a hudge crowd gathers our of curiosity and the lime of the apprehension of appellant being mid-day and the place of wardat being a crowded locality of the city, it is mere likely then not that a sizeable crowd would have gathered. This also throws doubt on the veracity of PW Inspector Latif and PW 5 Bakhtawar Ali Sub- Inspector."
6. The Division Bench which heard Criminal Appeal No.73/1990 agreed with the above observations made in Criminal Appeal No.76/1990, and we also do not find any reason to take a different view of the evidence in this matter.
7. Mr. K.M. Nadeem, learned A.A.G, has hesitantly attempted to support the prosecution case but we find that the arguments raised by him, were already dismissed in those two appeals, and he had nothing new to add to those arguments. We also find that, the reasoning advanced in the impugned judgment are not new and were the same rather prototype to those Which were advanced in the judgment against the other companions of the appellants.
We are of the clear view that the prosecution has failed to bring home the charge against the appellant. In this view of matter we set aside the impugned judgment and allow the appeal. The appellant, who is in custody is ordered to be released forthwith, if he is not required in any other case.