QAISER AHMED HAMIDI, J.--- Appellant Sikandar was tried by Mr. Shamsuddin Siddiqui, Judge,-- Special Court Suppression of Terrorist Activities, Hyderabad, for the offence under section 13-D of the Arms Ordinance, 1965, who found him guilty and ride judgment, dated 1-10-1991 sentenced him to suffer R.I. For six years and to pay a fine of Rs.10,000 or in default to suffer R.I. For one year more..
By this appeal filed under section 7 of the Suppression of Terrorist Activities (Special Courts) Act, 1975, the appellant has challenged his conviction and sentence.
2. The case of the prosecution is that on 23-6-1990 Allahdino Additional S.H.O. City Police Station, Hyderabad left for patrolling alongwith his subordinate staff in an official van. The members of law enforcing agency had also accompanied them in a separate van. At about 3-30 p.m. The police party reached near Yaqub Kasai Pir, Station Road, Hyderabad, when they found the present appellant with a bag (Thela) in his hand. On seeing the police party the appellant tried to slip away. A cordon was put around him and he was captured. On interrogation he gave evasive replies, but ultimately disclosed his identity. The Police Officer searched the bag which the appellant was carrying and recovered two sten guns with magazine, three pistols of .32 bore, two T.T. Pistols of .30 bore, magazines, bullets and other articles. Since the appellant had no valid licence for the arms and ammunition which he was carrying, he was taken into custody and such Mashirnama was prepared in presence of Mashirs Nusrat Ali H.C. And Muhammad Morial P.C. The appellant was brought to City Police Station, Hyderabad, where Allahdino S.I.P. Lodged F.I.R. On behalf of State. After usual investigation the appellant was sent up to stand trial for the said offence.
3. Charge under section 13-D of the Arms Ordinance 1965, was framed against the appellant and he was asked whether he pleads guilty or has any defence to make, to which he pleaded not guilty and claimed a trial. At the trial the prosecution examined Nusrat Ali H.C. (P.W.1), and Allahdino S.I.P.
(P.W.2).
4. In his statement recorded under section 342, Cr.P.C. The appellant has dispute the case of the prosecution by alleging enmity with the prosecution witnesses. His defence in his own words is as follows:-- "My father is truck driver. Mr. Aziz Jahanzeb had threatened us with severe consequences as my father had refused to pay him `monthly and because he had showered abuses. I had hot exchange of words with him. I was arrested on 6th June, 1990 by S.H.O. Aziz Jehanzeb from my house and nothing was secured from me. At that time Mustaqeem and one Shafique were there:"
5. The appellant did not step into the witness-box. He, however examined Major Muzammil Shahzad, Specialist C.M.H., Hyderabad (D.W.1), Hameedullah Nursing Assistant (D.W.2), and Mustaqeem Ahmed Khan (D.W.3) in his defence.
6. On the assessm ent of evidence available on record .The learned Judge found the appellant guilty and. Convicted him accordingly, hence the present appeal.
7. Mr. Qurban Ali Chohan Learned counsel for the appellant has with great energy put before us reasons for disbelieving the two witnesses and has endeavoured to show that their evidence as to the patrolling and recovery of huge quantity of arms and ammunition from the possession of appellant is unreliable. He has further suggested that the circumstances are not inconsistent with a plot having been formed to fasten the guilt upon the appellant who was in fact arrested on 6-6- 1990 and was tortured by Army officials with the result that he was referred to Combined Military Hospital Hyderabad twice for the purpose of treatment He has criticised the evidence of two police officials namely Nusrat Ali H.C (P. W. 1) and Allahdino S.I.P (P.W.2) who according to him are liars.
8. The evidence of police officials cannot be discarded simply because they belong to police force the court should not start with any presumption against them In Qasim and others the state reported in PLD 1967 KAR 233 A Single judge of this court held :- ---A Police Officer is as good a witness as any other personThe standard of Judging his evidence is the same on which the evidence of any other witness is judged.---
9. This view was reiterated in Javed Ahmad V. The state reported in 1984 PCrLJ 965 and Muhammad and others the State reported in PLD 1981Sc635 We may usefully borrow the terse observation of Aslam Riaz Hussain J. Made in the last cited case in the following words:- ---Even if the testimony of Mehnga P.W.9 one of the recovery witnesses is discarded the evidence of Asghar Ali SIP.PW11 is sufficient to prove the recoveries because as held in a number of case10.
However, in a case of this nature where the fate of an accused person hinges upon the testimony of police officials alone, it is necessary to find out if there was any possibility of securing independent persons at the time of recovery. The conviction or acquittal of an accused person depends upon the credibility of witnesses as assessed by the Court, but where the independent witnesses were available but were not picked up to act as Mashirs the Court has to be very careful in weighing such evidence. Judicial approach has to be cautious in dealing with such evidence.
11. We are also conscious of the fact that the provisions of section 103, Cr.P.C. Are not attracted to a case of personal search. However, in the circumstances of the present case where the place, where the alleged recoveries were made from the appellant is situated in a thickly populated area, the omission to take independent Mashirs from the locality is significant and cannot be brushed aside lightly specially when the recoveries were made during day time. After all the preparation of Mashirnama or Panchnama is not an empty formality and its object is to prevent unfair dealings.
Any departure from this established practice affects the weight of the evidence.
12. Allahdino S.I.P. (P.W.2) is the star witness of the prosecution. The evidence of this witness shows that the appellant was caught at the Pir of Yaqub Kasai. Nusrat Ali H.C. (P.W.1) who has acted as Mashir has, however, stated that the appellant was apprehended at the incline of Buchalo Shah, which is at a distance of 2/3 furlongs from the Pir of Yaqub Kasai. He has, however, changed his earlier version by stating that the incline of Buchalo Shah was 2/3 paces away from the Pir of Yaqub Kasai.
13. It is the case of the appellant that he was arrested on 6-6-1990 and was detained wrongfully by the Army officials who tortured him to the extent that he was admitted in C.M.H. Hyderabad on two occasions. He has examined Mustaqeem Ahmed Khan (D.W.3), a neighbour, who has testified to this effect. Hameedullah (D.W.2) who is Nursing Assistant in C.M.H. Hyderabad, has deposed that one Sikandar was admitted in hospital on 6th June, 1990. He was discharged but was readmitted on 10th June and he remained in hospital till 18th June, 1990. His evidence further shows that during this period the said Sikandar was in custody under a Military Guard. Major Muzammil Shahzad (D.W.1) who is Specialist in C.M.H., Hyderabad, has also supported the plea taken by the appellant.
He has even identified the appellant when shown to him in Court. A copy of Daily Aftab, a newspaper published from Hyderabad, dated 8-6-1990 is also placed on the file of this Court which shows that the appellant, a terrorist was arrested on 7-6-1990, while transferring weapons to some place. This strong defence evidence was rejected by the learned Judge for no obvious reason, who dealt with this evidence in a very casual manner. The proper mode of appraisal of evidence in a case of this kind was to consider the reliability of each witness separately and then to examine the case as a whole -and also to examine the credibility of the witnesses in juxtaposition with each other- and in relation to the general circumstances of the case and it is only when it is found that the evidence as a whole leaves no reasonable doubt that the appellant is guilty that a conviction can safely be recorded.
14. Mr. Muhammad Zubair Quraishy, learned counsel representing the State finding himself on the horns of dilemma, conceded and we think rightly, that in view of strong independent defence evidence, he could not support the prosecution evidence.
15. As a result, therefore, of this unsatisfactory state of evidence in this case we find ourselves unable to uphold the conviction of the appellant and giving him benefit of a reasonable doubt, we set aside his conviction and sentence, and would direct that he be set at liberty, if not wanted in any other case.
16. By a short order, dated 18-9-1991 we had accepted this appeal and these are reasons for the said order.