1. SYED HAIDER ALI PIRZADA, J.--Appellant Muhammad Idrees soil of Nasiruddin was charged under section 9 read with section 13-E of Arms Ordinance, 1965 and tried by the learned Presiding Officer, Special Court (Suppression of Terrorist Activities), Hyderabad, who has convicted and sentenced him to suffer R.I. For three years vide judgment, dated 27th February 1991.
2. The facts giving rise to the present appeal are that the appellant was arrested on 17-11-1990 at about 10-00 p.m. Near the gate of Effendi Garden on Tando Yousif Road, Hyderabad. The case of the prosecution as per F.I.R. Is that on 17-11-1990 S.H.O. Malik Gul Muhammad of Phuleli Police Station alongwith his subordinate staff, A.S.I. Khurshid Khokhar, H.C: Ghulam Hyder, P.C. Karim Bux, Police Constables Ali Muhammad, Ismail, Rashid and others left at 8-30 p.m. For patrolling, in the police van. When they passed by Effendi Garden, they spotted one man who was trying to conceal himself, as such the S.H.O. Suspected him, followed him and caught hold of him. On his personal search a Kalashnikov was recovered which was without any magazine for which he had no licence.
3. He disclosed his name as Muhammad Idrees. From his personal search a cash of Rs.101 a wrist watch and one golden chain were recovered. The .S.H.O. Prepared such Mashirnama in presence of A.S.I. Khurshid Khokhar and H.C. Ghulam Hyder. They all came back to the Police Station where the S.H.O. Filed F.I.R. On behalf of the State. On completion of the investigation, the accused appellant was challaned before the Court.
4. A formal charge was framed against the accused to which he pleaded not guilty.
5. At the trial, prosecution examined S.I.P. Khurshid Khokhar P.W. No.1 (Exh.3) who was posted as S.I.P.
6. Phuleli Police Station. He has stated that on 17-11-1990 Malik Gul Muhammad was S.H.O. They both alongwith Ghulam Hyder, P.Cs. Abdul Karim, Ali Muhammad, Ismail, Abdul Rashid went for patrol in the police van. At 10-00 a.m. They reached Effendi Garden Gali, when they found one man going inside the garden. They suspected him and ran after him and caught him. He was wrapping a Shawl inside which they noticed one thing in his hand. It was Kalashnikov SMG without magazine.
7. On inquiry he disclosed his name Muhammad Idrees. He had no licence. The S.H.O. Searched his person and got his identity card, a golden chain and cash of Rs.101 and one wrist watch. He prepared Mashirnama. He and Ghulam Hyder were Mashirs. He produced Mashirnama as Exh.5. It bears his signature. The accused/appellant and the property were brought to the Police Station where F.I.R. Was lodged. To a question in cross-examination, he replied that Mashirnama (Exh.5) was not written by S.H.O. But it was written by H.C. Ghulam Mustafa. He denied the suggestion that Mashirnama was written in Police Station. To another question, he replied that Ghulam Mustafa was called by S.H.O. Malik Gul Muhammad Inspector Police, P.W.2 has stated that on 17-11-1990 he was S.H.O. Phuleli Police Station. On that day at 8-30 p.m. a alongwith his subordinates viz. A.S.I.
8. Khurshid Khokhar, H.C. Ghulam Hyder, P.Cs. Karim Bux, Ali Muhammad, Muhammad Ismail and Rashid left for patrolling in police van at various points. When they passed by Effendi Garden, they saw one person who ran away in the garden. They suspected him. They got down from the van and ran after him and surrounded him and caught him. He was wrapped with a shawl inside which he was carrying a Kalashnikov No.16251392. He had no licence. He disclosed his name as Idrees. He prepared such Mashirnama and made A.S.I. Khurshid and H.C. Ghulam Hyder as Mashirs. It bears his signature and those of Mashirs. They came back to the Thana where he filed F.I.R. He has produced F.I.R. As Exh.
7. It is same, correct and' bears his signature. Then he recorded the statements of those who were with him at that time. He challaned the accused/appellant. He admitted in his cross-examination that Ghulam Mustafa was writer H.C. And he was not in their party while patrolling.
9. After close of the prosecution case, the statement of accused/appellant was recorded under section 342, Cr.P.C. In which he denied the allegations made against him. He has further stated that he was arrested by military personnel and was kept for 20 days and thereafter he was produced before police. He suggested that police diary for 17-11-1990 be called and he wanted to summon Col. Rafique, FIU Army Headquarters, Hyderabad to produce record of his arrest.
10. Bashir Ahmed, S.H.O. Phulcli Police Station, Hyderabad D.W. No.1 :.Educed Daily Diary No.28 (Exh.11), dated 17-11-1990 which shows movement of S.H.O. He also produced Entry No.31, dated 17-11-1990 as Exh.
12. He also produced entry No.35, dated 17-I1-1990. According to this entry, Ghulam Mustafa was writer Head Constable who left police station at 11-30 p.m. He produced entry No.35 as Exh.13. He stated that WHC was on duty between entry No.28 and 30.
11. After taking into consideration, the evidence produced by the prosecution and accused/appellant, the learned Presiding Officer, Special Court has been pleased to convict the accused/appellant as described above and the present appeal has been filed against the above Judgment of conviction Mr. M.M. Aqil, learned counsel appearing for the appellant raised the following contentions:---
(1) There is a direct conflict between Mashir and S.H.O. On the point when the Mashirnama was prepared and it was prepared by whom?
(2) The expert witness was not-examined at all in the instant case to prove as to whether the weapon in question is automatic or not and whether it was in working order.
12. Mr. Shoukat M. Zubedi, learned Assistant Advocate General has not supported the conviction. He fairly conceded that there is a direct conflict between the Mashir and the S.H.O. The prosecution has not established the case.
13. Reverting to the first contention of Mr. Aqil that there is a direct conflict between the Mashir and S.H.O. About preparation of Mashirnama and the place of preparation of the Mashirnama. In the instant case, the prosecution has examined only two witnesses in support of their case. The first prosecution witness is P.W:1 Khurshid Khokhar who was S.I.P. Phuleli on 17-11-1990. He has staled that the accused/appellant was going inside Effendi Garden. They suspected him and ran after him and caught him. He was wrapping a shawl inside which they noticed one thing in his hand. It was a Kalashnikov S.M.G. Without magazine. He has stated in his exammation-in--chief that S.H.O.
14. Prepared Mashirnama (Exh.5). He has stated in his cross--examination that Mashirnama was not prepared by S.H.O., but it was written by W.H.C. Mustafa. He denied the suggestion that Mashirnama was written at the Thana. He admitted that W.H.C. Mustafa was called by the S.H.O. A perusal of Mashirnama (Exh.5) would show that I was prepared at 10-00 p.m. (22-00 hours).
15. P.W.2 Gul Muhammad has stated in his examination that a prepared the Mashirnama and made A.S.I, Khurshid and H.C. Mustafa as Mashirs. He admitted in his cross-examination that during these days Ghulam Mustafa was Writer Head Constable. He further admitted that W.H.C. Ghulam Mustafa was not in that party while patrolling.
16. We have perused daily diary, dated 17-11-1990 which was produced as Exh.12. Entry No.35 of Exh. 12 would show that W.H.C. Ghulam Mustafa left police station at about (2300 hours) that is 11-30 p.m.
17. In a case reported in 1972 P Cr. L J 478, a Division Bench of Erstwhile High Court of Sindh and Baluchistan, Karachi Bench held that "this cannot be called, therefore, a recovery in the eye of law particularly when Mashirnamas are prepared at police station and the articles are sealed and packed not at the: spot at the time of recovery but later on at the police station, we do not give any credence to the allegation of the prosecution that the recoveries have been properly made of the incriminating articles". We are in agreement with this observation. In the instant case, P.W.1 Khurshid Khokhar who acted as Mashi! Stated that Mashirnama was prepared by W.H.C. Ghulam Mustafa.
18. Whereas S.H.O. Gul Muhammad stated that he prepared the Mashirnama. This statement was contradicted by Mashir Khurshid. A perusal of Mashirnam, would show that it was prepared at 10- 00 p.m. The perusal of Daily Diary of 7 -1990 shows that W.H.C. Ghulam Mustafa was in Police Station till 1-30 p.m. According to P.W. Khurshid Khokhar, W.H.C. Ghulam Mustafa we called by S.H.O.
19. In these circumstances, the Mashirnama was not prepared 10-00 p.m. This cannot be called a recovery of weapon in question particular who preared the Mashirnama and the place where it was prepared. We < Before us the learned Assistant Advocate-General has stressed that a fire-arm even if it is not in working order remains a fire-arm within the meaning of section 3(1)(b) of the Arms Ordinance. He relied upon the decision reported as Abdul Wahid v. The State PLD 1990 Quetta 63.
20. In this decision learned Judge of High Court of Baluchistan at Quetta observed that if any fire-arm or a part thereof is rendered unserviceable-for the time being, but does not lose its real character and possibility for repairing it exists. We are in agreement with the view expressed above but we do not find that this helps the State counsel in this case.
21. It is true that a weapon does not cease to be a fire-arm if it has not lost its specific character but the onus of proving that a weapon has not lost its 8 character is upon the prosecution. Where doubts are entertained about it, it is necessary for the prosecution to satisfy the Court that the weapon still possesses its specific character.
22. There is another difficulty m the instant case. According to the prosecution, they recovered one Kalashnikov without a magazine. It has come on record that that weapon was not sent to Ballistic Expert for examination. Even the'' prosecution has not examined any Ballistic Expert in this behalf.
23. There is no material on the record to show that it is in working order. There is nothing on record to show as to whether the weapon in question is automatic or semi-automatic or not. The conviction would not be sustainable in the absence of any material on the record about its working or not and also it is automatic or semi-automatic. It is for the prosecution to establish their case, which cannot be said to have been done.
24. On the evidence before us, we are not in a position to determine whether slight repairs or changes could turn this weapon into a serviceable weapon or not. On the evidence before us, we are not in a position to determine whether this weapon is automatic/semi-automatic or not. The prosecution has, therefore filed to discharge the onus.
25. For the foregoing reasons, we are of the view that the case against the appellant is not free from doubt. Consequently, we accept this appeal, set aside the conviction and sentence of the appellant and acquit him of the charge against him.
26. We had decided the above appeal on 1-7-1991 and the above are the reasons for the short order