SALAHUDDIN MIRZA, J.--- Both these appeals are directed against the judgment, dated 13th July, 1991, passed by Judge, Special Court No.III (Suppression of Terrorist Activities), Karachi, whereby appellants Muhammad Asif Yousuf anti Muhammad Sadique were convicted under section 399, P.P.C. And sentenced to undergo R.I. For 3 years while other 3 co-accused Tahir Saleem, Rizwan and Shakil Ahmed were given benefit of doubt and acquitted. All these 5 persons were prosecuted on the basis of the F.I.R. Lodged by Inspector Abdul Rasheed Shah of C.I.A. Karachi under sections 399, 402, P.P.C. At Police Station Gulshan-e-Iqbal as Crime No.754/89 on 14-10-1989.
2. The facts, as given in the F.I.R., are that complainant Syed Abdul Rasheed Shah, Inspector was investigating Crime No.367/89 under section 365/34, P.P.C. Of Police Station Shahrah-e-Faisal, when spy information was received by him that some suspicious persons were taking rounds in a Suzuki Car No.236-564 in Block 13-D of Gulshan-e-Iqbal, whereupon the complainant procured witnesses Muhammad Iqbal and Babu and reached the place at 1400 hours and, finding the said car roaming there, gave signal to it to stop but the driver of the car, instead of stopping, accelerated the speed whereupon the complainant gave chase to it and forced it to stop near Gilani Railway Station and searched it. As a result of the search a hand bag containing 3 hand- grenades was recovered from the possession of appellant Muhammad Sadique, a revolver of .32 bore was recovered from the acquitted accused Tahir Salim Qureshi, one T.T. Pistol of .30 bore was recovered from acquitted accused Shakil; one carbine loaded with 3 bullets and an empty cartridge was recovered from the possession of acquitted accused Rizwan and one white cotton rope tied around his waist, was recovered from appellant Muhammad Asif Yousuf. These 5 persons were preparing themselves for committing dacoity. He, therefore, arrested them for offence under sections 399, 402, P.P.C. After necessary investigation all these 5 accused were challaned before the Judge, Special Court No.III (Suppression of Terrorist Activities), Karachi. After recording the evidence for the prosecution as well as for the defence and after recording the statements of all the accused persons under section 342, Cr.P.C. Learned trial Judge convicted the above-noted appellants and acquitted the remaining three. A separate case was registered under the Arms Ordinance for possessing unlicensed arms and ammunition.
3. In support of its case the. Prosecution examined the following witnesses: P.W.1 Muhammad Akram, A.S.I. Had received the 154, Cr.P.C. Statement of Inspector Abdul Rasheed Shah and incorporated it in the F.I.R. And he produced the 154, Cr.P.C. Statement as Exh.2/A and the F.I.R. As Exh.2/B. P.W.2 S.I. Mouladad Khan is the Ballistic Expert of the Police Department and he stated that on 25-1-1990 he received from the C.I.A. One unsealed parcel containing of .30 bore pistol bearing No.74358 alongwith a magazine containing 10 rounds and he found the pistol to be in working order. According to him, it was a semi-automatic weapon. He produced his report as Exh.3/A. P.W.3 Syed Nasirul Hasan is the owner of a `Rent a Car' shop at Tariq Road and he stated that the name of his show-room is Al-Hasan Auto Deal. He deposed that Suzuki Car No.236-564 was his property and he had given it on rent on 7th September to appellant Asif Yousuf and had made an entry to that effect in the Register maintained by him and he produced a copy of the said entry as Exh.4/A and that a photo copy of his identity card was obtained and attached to the relevant entry in the Register. This photostat copy of the Identity Card of Asif Yousuf was produced by him as Exh.4/B. He further stated that he had delivered the car to Asif Yousuf after obtaining his signatures on his Register and he identified Asif Yousuf as the person to whom he had given the car on hire. From his cross-examination, it appears that he had been quite often giving cars on rent to Asif Yousuf, who usually paid rent after about 15 days after return of the car. P.W.4 Babu Khan is a private person who had acted as Mashir. His evidence is that he had gone to Gulshan-e-Iqbal to meet his friend Munir at about 1330 hours or 1400 hours and after seeing the said friend he was returning and was searching a rickshaw when he saw a Suzuki car being chased by a police van and also saw that the police van finally overtook and blocked the passage of the Suzuki car and forced it to stop whereafter the police party got down from their van and surrounded the Suzuki car which had 5 occupants who were all arrested and searched. He identified all the 5 accused persons as those who were riding the Suzuki car. He further stated that the personal search of 4 of them yielded various arms and ammunition whereas a rope, tied around the waist was recovered from the 5th person. He produced the Mashirnama as Exh.5/A. He also gave the details as to which of the weapons was recovered from which of the accused and from whom the rope was recovered.
P.W.5 Abdul Rasheed Shah is the Investigating Officer whose evidence is as per averments made in the F.I.R. This is all the evidence brought on record by the prosecution in support of its case. In their 342, Cr.P.C. Statements the accused persons, including the two appellants, denied in toto the truth of the prosecution story and stated that they were separately arrested by the police and falsely implicated in this case. All the accused persons, including the present appellants, also examined themselves on oath in their defence under section 340(2), Cr.P.C. The case of Muhammad Sadique was that he was the resident of Sawat and had come to Karachi on 1st October, 1989 and took residence in Pathan Colony and one day at about 9 or 10 a.m. He was reading a newspaper while sitting on a cot in front of his house and at that time his pistol was hanging by his shoulder when some police personnel reached there, including Inspector Abdul Rasheed Shah and questioned him about the pistol and this led to a dispute between them. The Police Officer, even though he was shown the licence for the pistol, insisted that it was still not proper for Muhammad Sadique to display the pistol like this and took him in the police mobile van to the police station where he was kept till 13th October, 1989, whereafter he was sent to C.I.A. Lock-up. After that Muhammad Sadique alleged, his pistol was foisted on co-accused Shakil and he was also falsely implicated for being in possession of 3 hand-grenades. In his 340(2), Cr.P.C. Statement appellant Asif Yousuf admitted that the car in question was taken on rent by him, as alleged by the prosecution, but he added that he was, in those days, working with a firm known as Design of Print and which was located on Tariq Road, Karachi and the car was actually rented by his firm although in the record of the owners of the car he was shown as the hirer. According to him, he was arrested on the night of 9th October 1989 at 0200 hours from his house and that when his brother came at the police station in the morning to enquire about him, the car in question, in which his brother had gone to the police station, was detained by the police. He stated that he did not know the other 4 co-accused and had met them for the first time in the C.I.A., lock-up. We need not refer to the statements on oath of the 3 acquitted co-accused. Appellant Muhammad Sadique examined 3 defence witnesses, D.W.1 Rao-e-Dad Khan, D.W.2 Abdul Kabir and D.W.6 Ikram Khan. D.W.G Ikram Khan claimed to have come to Bus Adda for catching the bus for his village. He witnessed the arrest of Muhammad Sadique, who was sitting on a cot reading a newspaper at about 12 yards away. The evidence of all these witnesses is that appellant Muhammad Sadique was arrested by the police on 1-10-1989 between 09110 hours and 1000 hours from the Bus Adda at Pathan Colony where he was reading a newspaper. Rao-e-Dad Khan is a clerk at the Bus Adda and the other witnesses claim to have come there to see off a guest going back to his village. Appellant Asif Yousuf also examined 3 witnesses in his defence and they arc DW.3 Muhammad Zahir Yousuf, his own brother, who deposed as to the arrest of Asif Yousuf in the middle of the night of 9-10-1989, D.W.4 Munawar Khan, a construction contractor, who stated that he was returning to his house at 0200 hours at 9-10- 1989 and found a police mobile van in his street and the policemen were arresting Asif Yousuf. In cross-examination D.W.4 Munawar Khan also stated that Dr. Khalid, Dr. Zahid and Dr. Shahid were all brothers of appellant Asif Yousuf, and the fourth brother, whose name was not given by him, was employed in Airport Security Force and that appellant Asif Yousuf was the son of a retired Colonel of the Pakistan Army who had expired some time ago. Some more witnesses were also examined by the acquitted co-accused and their evidence need not be discussed here.
4. It was argued by learned counsel of the appellants that there were material contradictions in the F.I.R. And the statement of the Investigating Officer, that the Mashir P.W. Babu was proved to be a stock-witness of the police, that there were contradictions in the statements of P.W. Babu and the Investigating Officer P.W.5 Abdul Rasheed Shah and that there was no consistency in the judgment of the learned trial Court and that on the basis of the same evidence 3 co-accused were acquitted.
5. After going through the evidence on record and 'hearing the learned counsel of the appellants, we are of the considered view that the conviction and sentence of the appellants cannot be sustained and to that extent the impugned judgment must be set aside. After discussing .The evidence before him, learned trial Judge stated that he was convinced that the 3 hand-grenades were recovered from Muhammad Sadique appellant and a rope was recovered from Muhammad Asif Yousuf appellant but "as far as the remaining accused are concerned, after perusal of prosecution witnesses, which creates doubt regarding prosecution version, and, keeping in view the statements of accused under section 342, Cr.P.C. As well as on oath and the statements of defence witnesses, I give them benefit of doubt. Consequently, accused Tahir Waseem, Rizwan and Salim Ahmed are given benefit of doubt and they are acquitted..." We have not been able to follow the logic of these observations of the learned trial Judge. If the prosecution evidence creates doubts as to the truth of the case set up by it, the appellants also deserved to be acquitted. On the contrary, if the prosecution evidence was convincing and trustworthy, then all the 5 co-accused deserved to be convicted and sentenced for appropriate terms. We are, however, of the view that the prosecution evidence has failed to establish the case as set up by it. The most important witness on which hinges the case of the prosecution is P.W.4 Babtl Khan, the Mashir of the arrest of the appellants and other co-accused. He stated that he was an employee of a construction contractor and he gave the name of his contractor as Bashir, but stated that he had no office. He then stated that Bashir had shifted to Lahore. Now, if Bashir had shifted to Lahore, the employment of the witness with him must have ceased. The witness further stated that he had also shifted to Lahore but this is evidently incorrect because at the commencement of his evidence he had given his address as that of Khaiber Colony, Orangi Town, Karachi, not of Lahore, and he had also not stated anywhere in his examination-in-chief that he had shifted to Lahore,' He also stated that apart from this case, he had acted as Mashir in one more case investigated by Inspector Rasheed Shah. He was quite emphatic about it. However, Inspector Abdul Rashid Shah (P.W.5) stated that P.W. Babu was cited (by him) as a P.W. In about 10 cases prior to this incident. This would mean that Babu had acted as Mashir in at least 11 cases. This contradiction, besides totally shattering the credibility of P.W.4 Babu Khan, also shows that he is a stock-witness of the police. It may also be noted that while in cross-examination to Mr. Mansab Ali Qureshi, Advocate for accused Asif, P.W.5 Abdul Rasheed Shah stated that P.W. Babu was cited as a P.W. In about 10 cases prior to this incident, in cross-examination to Mr. Kazi Imdad for co-accused Rizwan he stated that P.W. Babu was a witness in one more case apart from this case and he is not Mashir in a many cases. This contradiction in the evidence of the Investigating Officer also shatters his evidence as well.
6. Apart from what is stated above, we also note that ingredients of section 399, P.P.C. Have not been proved. The appellants and the acquitted co---accused may well have been in possession of unlicensed weapons as claimed by prosecution but for that they are liable to be prosecuted under the Arms Ordinance. All the evidence adduced by the prosecution shows that the appellants and co-accused were found to be in possession of unlicensed arms and ammunition when the car they were travelling in was intercepted by the police and searched. There is, however, no evidence that the appellants and acquitted co-accused had made any preparation to commit dacoity.
Otherwise, any person found in possession of unlicensed arms and ammunition would be simultaneously charged and convicted under section 399, P.P.C. As well. In this connection, learned counsel of the appellants have relied upon a judgment reported in Shameer and. Others v. The State 1989 P Cr. L J 1256, which supports the above view.
7. In view of the above position, learned State counsel also does not support the conviction of the appellants and concedes that the prosecution case suffers from lack of reliable evidence and the impugned judgment suffers from inconsistency inasmuch the two appellants have been convicted whereas the other 3 co-accused have been acquitted on the basis of the same evidence. We had, therefore, accepted both these appeals and had set aside their conviction and sentence and had ordered that the appellants may be released forthwith if no required in any other case and had passed a short order to that effect on the conclusion of the hearing. These are the reasons for the short orders.
N.H.Q./M-1663/K