MUHAMMAD ASLAM ARAIN; J.--- The appellant was fired by the Special Court (Suppression of Terrorists Activities) II, Karachi, in Special Case No.6 of 1992 under section 13-B of Arms Ordinance, 1965. He is convicted by the said Court by judgment, dated 24-3-1992 and sentenced to suffer R.I.
For 4 years and to pay fine of Rs.1,000 or in default to undergo further R.I. For two months. The conviction and sentence is challenged in this appeal.
2. The facts of the prosecution case, in brief are, that Inspector Syed Jehangir Ali of Police Siation Nazimabad, Karachi, was patrolling with his subordinate staff on 19-1-1992 at 9-50 p.m., when he received information that appellant Kazim Khan was likely to pass by that area in Car No.T-8276.
This Kazim Khan was allegedly notorious narcotics dealer. The car in question when passed by that place, was given signal to stop but the 5 persons in the car opened firing at police party, who also fired in air in their defence. The appellant got down from the car and was arrested while his three companions fled away. The appellant was holding a rifle in his hand and a magazine in the other hand. One T.T. Pistol was found concealed in 'his Shalwar. The rifle i.e. k.k. Was loaded with 30 rounds while the extra magazine in his other hand also contained 30 rounds. The pistol was loaded with 10 rounds while an extra magazine of pistol was found empty. From the search of the car, half kilogram heroin was recovered from its dash-board. Two boys, namely Shahab and Aslam had volunteered to act as witnesses and in their presence Mashirnama of recovery and arrest Exh.4 was prepared. The appellant was then taken to police station, where 3 different F.I.Rs. Were registered, one for encounter with police, second for recovery of unlicensed weapons and the 3rd for recovery of heroin. F.I.R. For offence under section 13-B was registered as Exh.7. The weapons recovered were sent to Forensic Science Laboratory, from where, the report of the Ballistic Expert was received Exh.8. The appellant was then challaned before the Special Court to stand his trial on the above count.
3. The charge under section 13-B, Arms Ordinance was framed and read over to appellant on 14-3- 1992 to which he pleaded not guilty. The prosecution examined P.W.1 Shahab Raza f'xh.3 who produced attested copy of Mashirnama of recovery and arrest Exh.4. P.W.2. Muhammad Aslam Exh.5 was also associated to act as Mashir. It may be stated here that both these witnesses did not support the prosecution and were declared hostile and cross-- examined by the A.P.P. P.W.3 Syed Jehangir Ali Exh.6 was the S.H.O. Nazimabad Police Station on 19-1-1992, who, while patrolling the area at the round-about of Nazimabad No.7, received information that appellant who was a notorious dealer of narcotics would pass, by that side. He stated that the car in question was seen coming and it was signalled to stop but 5 persons in the car opened firing at police, thereafter police also fired in the air. The appellant came down from the car and was arrested. On his search, the weapons stated above were recovered from his possession.
4. The appellant in his statement under section 342, Cr.P.C, denied the allegations against him and further stated that one Habibur Rehman Sub---Inspector of Police had filed a case under Arms Ordinance against Abdul Sattar and a lady co-accused in which appellant had helped his friend Abdul Sattar and lady co-accused, who were acquitted. S.I. Habibur Rehman was dismissed from service. Thereafter S.I. Habibur Rehman had threatened appellant of dire consequences. He further stated that I.O. Syed Jehangir Ali of this case, being a close friend of S.I. Habibur Rehman, falsely implicated him in this case. The appellant also stated that on 17-1-1992, he was at his house where his friends Iqbal and Haroon were also present when Inspector Syed Jehangir Ali with his police staff came and took him forcibly to Nazimabad Police Station and foisted this against him.
The appellant examined D.W.1 Haroon Khan Exh.14 who stated that on 17-1-1992 at 5-00 p.m. While he and Iqbal had gone to the house of appellant to invite him for Aqiqa dinner, a police officer came and took away the appellant saying that he, was required for some interrogation as appellant had helped one Abdus Sattar accused in a case filed by S.I. Habibur Rehman. He also stated that while taking away Kazim Khan, the Police Officials warned them not to make any complaint, else action against them would also be taken.
5. We have gone through the judgment of the trial Court as also the evidence on record.
Admittedly, the recovery and arrest Mashers Shahab Raz;l Exh.3 and Muhammad Aslam Exh.5 were declared hostile and cross-examined by the A.P.P. P.W. Shahab Raza had stated in his evidence that on 19-1-1992 at 10-00 p.m., while he was standing in front of Majestic Hotel in Nazimabad No.7, a police party was holding a person who gave his name as Kazim Khan. He further stated, that since he sew only glimpse of the said person, he was unable to identify. His evidence shows that the police had disclosed to him that the person so held was a notorious narcotics dealer and some weapons were recovered from him. He stated that the Mashirnama Exh.4 bears his signature but it was not legible and he signed it without knowing its contents. He specifically stated that the weapons were not recovered in his presence but were recovered before he reached. Similarly the other Mashir Muhammad Aslam Exh.5 gave the time of incident as 10-30 p.m. On 1.9-1-1992. At that time, while he was going to Lesbela, he saw a crowd of persons at Magestic Hotel at the round- about of Nazimabad No.7. On enquiry, the people gathered informed him that a person by name Kazim Khan, narcotics dealer had been held by police. When police asked the persons gathered there to volunteer to act as Mashir, this witness offered himself for the said purpose. He also stated that he was told that the weapons were recovered from the ward accused. He further stated that his signatures were taken at the police station on some papers. These two witnesses, as stated above, were declared hostile and cross-examined.
The third and the last witness for prosecution is Syed Jehangir Alt, the S.H.O. Police Station Nazimabad. The learned trial Court has taken corroboration to his evidence from a few passages of evidence of the two Mashirs who were declared hostile. It is observed by the trial Court that the two Mashirs named above, had supported the prosecution case inasmuch is, they had seen accused in custody of police and they had admitted having signed the Mashirnama. In this view of the matter the learned advocate for the appellant Mr. Azizullah K. Shaikh, referred to us the judgment of the same learned Judge in Case No.78 of 1991 (State v. Syed Khalid Ali) and Case No.4 of 1991 (State v. Saddruddin). In both these cases, the accused were acquitted. In Case No.78 of 1991 -the learned Judge in paragraph 7 of his judgment, observed:-- "In the absence of the evidence of the public man Shakeel Ahmed, it is difficult to hold that the evidence of the above two police officers is sufficient to find the accused guilty of the offence he has been charged with."
In case No.4 of 1991 the observation of the learned Judge in, paragraph 8 of the judgment is:-- "In view of the above decisions I have no alternative but to hold that the evidence of the two police officials is not sufficient to find the accused guilty of the offence he has been charged with."
6. In the case before us, even though the two independent Mashirs admitted having signed Mashirnama, the evidentiary value of their statements a whole is to be looked into. One of them, namely, Shahab Raza, did not identify the appellant to be the same whom the police was holding at the time of incident. The second one namely Muhammad Aslam stated, `perhaps it was accused Kazim Khan present in Court who had been held by the police'. This sort of shaky and incoherent evidence of the two witnesses cannot corroborate the evidence of the investigation officer.
7. The recovery of unlicensed arms from the appellant therefore, becomes highly doubtful as there is no evidence to that effect except that of S.H.O. Syed Jehangir Ali. In Yar Muhammad and 3 others v. The State 1992 SCMR 96, -the Honourable Supreme Court, while discussing section 103 of Cr.P.C.
Observed, that recovery is an important piece of evidence which has according to the circumstances, a direct as well 'as corroborative value.
8. In the instant case, although the alleged recovery is in presence of two independent witnesses, they have resiled from their statement and are declared hostile. As to the affect of such evidence reliance is placed on Mishal Khan v. The State 1983 P Cr. L J 1628, where the recovery Mashirs bad not supported the prosecution and in appeal accused was acquitted by this Court with following observations in paragraph 12 of the judgment:- "12. There cannot be two opinions that in order to attract section 5 of Act, 1908 the prosecution has to prove two things, namely, (1) that the accused person makes or has in his possession or under .His control any explosive substance, (ii) under such circumstances as to give rise to a reasonable suspicion that he is not making it or does not have it in his possession or under his control for a lawful object. Furthermore, that in order to attract section 8 of Act of 1975 i.e. The Suppression of Terrorist Activities (Special Courts) Act 1975, the prosecution is to prove either (1) that the accused person is found to be in possession of or to have under his control any article or thing which is capable of being used for or in connection with the commission of any of the offences mentioned in the Schedule to the Act or (ii) that the accused person was apprehended in such circumstances, which tend to raise a reasonable suspicion that he had committed such offence.
In the instant case in our view the prosecution has not been able to prove that the appellant Mishal Khan was found in possession or control of the explosive substance in such circumstances as to give rise to reasonable suspicion that he did not have it for a lawful object. It has come on record that appellant Mishal Khan was engaged in the work of extracting stones from quarry and that the other four appellants were his labourers. The quantity of the gunpowder mentioned in the seizure memo. Exh.8/A is only 10 kilos i.e. About 22 pounds. Under Rule 83 of the Explosives Rules, 1940 even a private person for his private use and not for sale can keep gunpowder not exceeding 30 pounds without a licence. In the instant case even if to be held that appellant Mishal Khan was found in possession of about 22 pounds of gunpowder, similarly possession would not attract section 5 of Act of 1908 without further, proof of the fact that he was found in possession in such circumstances as to give rise to a reasonable suspicion that he did not have it in his possession or under his control for a lawful object."
Similarly, in The State through Advocate-General ex officio Public Prosecutor v. Jameel Ahmed and another 1984 P Cr. L J 1011, while dealing with an acquittal appeal, this Court rejected the evidence of recovery in presence of a witness who stated that police had taken his signature as well as of co- witness on blank paper.
9. Mr. K.M. Nadeem, the learned AA.-G.; has supported the conviction. He has contended that no universal rule could be laid down for appreciating evidentiary value of a witness and that each case has to be decided on its merit. In support of his contention he relied on (i) The State v.
Mushtaq Ahmed PLD 1973 SC 418, (ii) Wali Muhammad and another v. The State PLD 1976 SC 287,
(iii) Nazar Muhammad v. The. State and another PLD 1978 SC 236 and (iv) Abdur Rahman (deceased) through his legal representative v. The Professor Ghulam Rasool Tanvir etc. PLD 1987 SC 45.
He next contended that although the two Mashirs were declared hostile, their evidence to the extent that it helped the prosecution, was rightly accepted by the trial Court as corroboration to the evidence of I.O. He also contended that two witnesses were unjustifiably declared hostile and cross-- examined. He referred to Abed Ali Meah v. Ismail Meah PLD 1961 Dacca 85, where it was observed:--- "a witness who is unfavourable is not necessarily hostile, for a hostile witness has been defined at one who from the manner in which he gives his evidence shows that he is not desirous of telling the truth to the Court. Two contentions, namely, a hostile animus and the witness being not desirous of telling the truth should weigh in the matter of allowing the prayer for cross-examinating a witness cited by a particular party. Simply because a part of the deposition of the witness, cited by a particular party goes against that party is not sufficient reason for declaring such a witness hostile and for giving the party calling him a further opportunity for the purpose of cross, examining him."
Similarly in Abdul Qadir and another v. Abdul Mutalik alias Seru and others PLD 1971 Dacca 118 circumstances necessary for allowing prayer for cross-examination of their own witness by a party calling him, have been laid down.
The learned AA.-G. Then referred to Zafar v. The State PLD 1976 Kar. 1007, where a Division Bench of this Court maintained the conviction of an accused against whom the recovery witness had- resiled at the trial and the statement of Sub-Inspector of Police, read with recovery Memoranda was held sufficient to satisfy requirements of section 103, Cr.P.C. The learned AA: G. Contended that even if the evidence of two Mashirs who are declared hostile is rejected, the evidence of the S.H.O.
Syed Jahangir Ali coupled with recovery Mashirnama, was sufficient to warrant the conviction.
10. We have considered the contentions of the learned advocates in the light of case-law referred.
The defence of the appellant is that he was arrested from his house on 17-1-1992 at 5 p.m. In presence of his two friends namely, Iqbal and Haroon, of whom Haroon appeared as a defence witness. The D.W. Corroborated the statement of the appellant. In the case before us, not only that the two Mashirs have resiled, but have not supported the recovery Mashirnama. One of them stated that the Mashirnama was not legible and he. Did not understand its contents while the other Mashir stated that his signatures were taken at police station. The instant case is therefore, distinguishable from the case reported in PLD 1976 Kar. 1007.
11. We are .In respectful agreement with the rule laid down in the judgment of the Dacca High Court referred to above on the point of desirability of declaring a witness hostile and circumstances in which, such witnesses are to be declared hostile and cross-examined. We see no similarity between the facts of the reported judgments and the facts of the case before us. The evidence of the two witnesses clearly indicate that their testimony was not in line with the prosecution case.
Their having been declared hostile and cross-examined by the A.P.P. Was in our view justified.
12. It is correct that no rule of universal application of appreciation of evidence can be laid down.
However, the facts of the case before us leave no room to doubt that the arrest of appellant and recovery of alleged weapons was not proved beyond reasonable doubt.
13. There is another aspect of the case to which we would like to advert and that is the statement of appellant submitted by him alongwith his statement under section 342, Cr.P.C. He has stated that in another case, his friend Abdul Sattar and a lady co-accused were tried on a report riled by S.I.P.
Habibur Rehman and the accused were acquitted but S.I. Habibur Rehman was dismissed from service. The I.O. Of the instant case who was friendly with the dismissed S.I.P. Habibur Rehman had falsely involved him in the instant case to avenge the insult and humiliation to said S.I.P. Habibur Rasheed. The copies of the judgment in that case have been filed by the appellant and the trustworthiness of appellant cannot be outright rejected. We have before us then, the evidence of the S.H.O. Alone tainted with alleged malice, and the same could not have been made basis of conviction of appellant.
14. In these circumstances we are of the clear view that the case against the appellant was not proved beyond all reasonable doubt and the conviction cannot be sustained. We, therefore, allow the appeal, set aside conviction and sentence and acquit the appellant. These are the reasons for our short order dated 14-4-1992.
N.H.Q./K-290/K