1. MUHAMMAD ASLAM ARAIN, J. -- This appeal is directed against judgment, dated 5-6-1991 passed by the Special Court-II (Suppression of Terrorist Activities) Karachi, whereby the appellant has been convicted for offence under section 13-B read with section 9 of the Arms Ordinance, 1965 and sentenced to undergo R.I. For 4 years and further to pay a fine of Rs.50,000 and in default to undergo R.I. For six months more. He is given the benefit of section 382-B of Cr.P.C.
2. The facts of the case in brief are that on 14-9-1990 while appellant was in custody in Crime No.279/1990 of Police Station Baghdadi under sections 307, 336 and 504/34, P.P.C., and Crime No. 306/1990 of Police Station Baghdadi under section 13-D of Arms Ordinance, he voluntarily led the police to his house in Gali No.9, near Nagman Masjid, Shah Baig Lane and produced a stengun with five live cartridges from the said house.
3. He was sent up for trial before Special Court II Suppression of Terrorist Activities, Karachi for his trial on the said charge.
4. Charge was framed under section 14-E of Arms Ordinance, on 28-10-1990 to which the appellant pleaded not guilty.
5. The prosecution examined P.W.1 Manzoor Hussain Exh.5 who acted as a Mashir. Hestated that on 14- 9-1990 at 4-30 p.m. While he was passing by Bughdadi Police Station, a police party consisting of S.H.O., A.S.I., and others were standing and asked him to accompany them to act as a Mashir. The appellant was in custody of police. He stated that the appellant agreed to produce stengun from his house and led the police to his house which was at a distance of about 3 or 4 furlongs in Mohallah Shah Baig Lane. The appellant brought one stengun from his house with 5 live cartridges wrapped in mat. The police secured the same under a Mashirnama and arrested accused in this case. He produced the Mashirnama as Exh.4.
6. P.W.2 Hakim Khan Exh.5 was S.H.O., on 14-9-1990. He stated that the appellant who was already in custody in Crime Nos.279 and 306/90 of Bughdadi Police Station and during interrogation, voluntarily agreed to produce unlicensed weapon from his house and agreed to take the police to his house for production of unlicensed weapon. He picked Manzoor Hussain and Naeem to act as Mashirs. Other police officials were with him. Accused led the police party to his house in Gali No.9 near Mosque Nagman, opened the door and took the party and Mashirs in a room of the said house and pointed out the stengun wrapped in a mat lying in the corner of the room. He secured and seized the stengun loaded with live cartridges in presence of the Mashirs and prepared Mashirnama as Exh.4. He then lodged F.I.R., and produced the same as Eah.6. He sent the weapon and cartridges for test and received the report which he produced as Exh.7.
7. Statement of accused under section 342, Cr.P.C. Was recorded as Exh.12. He denied allegations against him. He stated that he was falsely involved by the police in this case as well as in other cases due to enmity. When asked if he wanted to examine himself on oath, the appellant answered in affirmative. He also gave the names of his mother Mst. Khadija and Akbar whom he wanted to examine in defence. Neither the statement of appellant on oath was recorded under section 340 of Cr.P.C, nor the two witnesses mentioned were examined in defence but on 29-4-1991 there is a typed statement of appellant which is thumb-marked by him in the following words:-- "I do hereby close my defence side."
8. The learned Advocate for the appellant has contended before us that according to prosecution the appellant produced a stengun from his house, while in Court, the Mashir was shown a klashnikov and P.W. Manzoor Hussain stated that `Klashnikov in Court is same'. He next contended that the Mashirnama Exh.4 shows that both the Mashirs were not residents of the locality and thus there is violation of section 103 of CrY.C. He has referred to Yamin Kumhar v. The State PLD 1990 Kar. 275, Muhammad Yamin v. The State 1990 P Cr. L J 84 and contended that in such circumstances the raid as welt as the alleged recovery loses its evidentiary value.
9. The learned Advocate next contended that admittedly the house from where the appellant allegedly took out a stengun with live cartridges and produced before police was an unattended house and was accessible to all and the recovery in these circumstances would be of no avail to the prosecution. In support of this contention he placed reliance on Mst. Sardaran and another V.
10. The State 1971 P Cr. L J 1137, Nazir and another v. The State 1982 P Cr. L J 318 and Mushtaq Ahmed v.
11. The State 1977 P Cr. L J 874.
12. The learned Advocate lastly contended that the Mashir P.W.1 Manzoor Hussain is not reliable witness for the reasons that in his, evidence, while giving his occupation, he stated that he was a labourer while in cross--examination, he admitted that he was owner of two Shops Nos.4 and 55 in Madina Cloth Market and he runs a hotel as well. This witness avoided to produce his Identity Card.
13. He is, therefore, not reliable witness. The other Mashir was not examined by the prosecution.
14. Mr. Syed Sarfraz Ahmed, the learned Additional Advocate-General supported the conviction and contended that there might be some discrepancy regarding the weapon and since the P.W.
15. Manzoor Hussain was a labourer by occupation, he could not distinguish between a stengun and klashnikov. He contended that benefit of such minor discrepancy could not be given to accused.
16. He also contended that there was no reason for the police to falsely involve the appellant in this case and evidence on record was sufficient to justify his conviction.
17. We have heard the learned counsel at length and perused the evidence. P.W.1 Manzoor Hussain who was called to act as a Mashir, in our view, is not a reliable witness for the simple reason that he being the owner of the two shops and a hotel could not be a labourer. He has purposely tried to conceal his identity and he cannot, therefore, be termed as a respectable, independent or reliable witness.
18. The weapon recovered by the police at the instance of the appellant was stengun while in Court the weapon shown to the Mashir P.W.1 Manzoor Hussain was a klashnikov. This anomaly has gone unresolved, and no explanation has come from prosecution. The Mashir Manzoor Hussain is also not a witness of locality where house of appellant was situated. He was taken by police from by Bughdadi Police Station to house of accused which area is thickly populated and police could associate independent witness of locality to attest the recovery and production of weapon by accused. There is violation of provisions of section 103, Cr.P.C. And we are, therefore, not inclined to attach A any credence to the recovery of the alleged weapon at the pointation of appellant.
19. There is another contradiction which is very material. P.W. Manzoor Hussain in his evidence stated that `accused took us to his house and brought in my presence one stengun from his house alongwith live cartridges'. P.W.2 Hakim Khan who was S.H.O., stated that accused took us to his house in Gall No.9 near Mosque Nagman. It was one room house, double storey. Accused opened the door and took us including the Mashirs in the room and pointed out a stengun in presence of above Mashirs. It was loaded with 5 live cartridges. According to Mashir Manzoor Hussain it was one room house while according to P.W.2 Hakim Khan it was one room double storey house. These contradictions clearly indicate that neither the Mashirs Manzoor Hussain nor P.W. Hakim Khan had seen the house where accused allegedly took them to produce the unlicensed arms.
20. We have seen the report of Ghulam Abbas Jaffery the Ballistic Expert. It shows that the parcel received by him was unsealed. Thus the report of the Ballistic Expert also goes against the prosecution and does not lend any support to its case. The appellant in his statement desired to be examined on oath but there is no reason shown why he was not examined. Even the witnesses cited by him in his defence were not summoned or examined and only statement of accused which is typed but thumb-marked is available on record that he closed his defence. This clearly shows that no effort was made by the trial Court to summon or examine the defence witnesses or at least to examine appellant on oath. This in our view caused serious prejudice to accused. We are not able to agree with the learned Additional Advocate---General that the minor discrepancies m prosecution would not disprove the prosecution case as a whole. Such contradictory, unreliable and shaky evidence could not have been made basis of conviction. We are satisfied that the prosecution had failed to prove its case against the accused and the conviction in these circumstances cannot be sustained. We, therefore, allow this appeal, set aside the conviction and acquit the appellant. He shall be released forthwith unless required in some other cases.