1. ALLAHDINO MEMON, J.---Appellants Syed Afsar s/o Habib Ahmed and Nafees Ahmed son of Nisar Ahmed were charged and tried under section 9 read with section 13 (E) of the Arms Ordinance 1965 alongwith the Rab Nawaz before the learned Judge, Special Court (Suppression of Terrorist Activities) Karachi, who has convicted appellants Syed Afsar Ahmed and Nafees Ahmed and sentenced them to suffer R.I. For three years, while co--accused Rab Nawaz was acquitted vide judgment, dated 16th July, 1990.
2. The brief facts of the prosecution case are that on 10--3-1990 the two appellants were found in possession of automatic weapons namely a stengun --one each with magazine on each at 8-00 p.m. In a street at Bone Mill, Dawood Churangi, Landhi, for which they had no licence. They were also found in possession of a Motor-Cycle bearing No.KCB-4147. The appellants and the co-- accused were arrested and the arms and ammunition were secured under Mashirnama.
3. Thereafter, S.H.O. Muhammad Suleman Mirza of Qiadabad P.S. Karachi, took them to the P.S. And lodged report on behalf of the State: After necessary investigation the appellants and the co-accused were sent up before the Court.
4. At the trial following charge was framed against the appellants to which they pleaded not guilty.
5. "I, Justice (Retd.) ZA. Chana, Judge, Special Court (Suppression of Terrorist Activities) Karachi, hereby charge you accused.
(1) Syed Afsar son of Habib Ahmed,
(2) Nafis Ahmed son of Nisar Ahmed and
(3) Rab Nawaz son of Kishwar Khan, as follows: That you accused on 10-3-1990 at 2-00 hours, in the Gali at Bone Mill, Dawood Chourangi, Landhi, were found with Motor-Cycle bearing No.KCB-4147, and You accused Syed Afsar were in possession of stengun for which you have no licence; You accused Nafis Ahmed were in possession and control of an automatic weapon, namely a stengun with magazine for which you have no licence; and you accused Rab Nawaz were in possession of two magazines of automatic weapons, for which you have no licence; And you three accused have thereby committed an offence punishable under section 9 read with section 13(3) of the Arms Ordinance, 1965, and within the cognizance of this Court.
6. And I hereby direct that you be tried by this Court on the said charge."
7. At the trial prosecution examined Abdul Azim owner of motor-cycle' secured from .The appellants P.W.1, he has produced the Form-E regarding motor-cycle as Exh.2-A, Mouladad Khan Ballistic Expert P.W.2, he has produced his report as Exh.3-A, Mashir Abdul Jabbar P.W.3, he has produced the Mashirnama regarding recovery of 2 stens alongwith magazines as Exh.4--p. His affidavit sworn before Oath Commissioner on 30-4-1990 as Exh.4-B. Mashir Obaidullah Khan P.W. 4, he had acted as co-Mashir of Mashirnama produced as Exh.4-A, complainant/S.H.O. Muhammad Suleman Mirza P.W.5, he has produced the F.I.R. As Exh.6-A, entry from daily diary as Exh.6-B. Admission Card of appellant Nafees Ahmed Khan as Exh.6-C.
8. After the close of the prosecution case, the statements of the appellants and the co-accused were recorded in which they have denied the allegations. Appellant Syed Afsar Ahmed has produced his Enrolment Card issued by University of Karachi, Character Certificate as Exh.7-A, another 'Character Certificate, B. Com. (Part-1) Marks Certificate issued by University of Karachi. Likewise appellant Nafees Ahmed Khan has produced his Registration Certificate issued by Sindh Board of Technical Education, Karachi, and Certificate issued by Registrar Swedish Pakistan Institute of Technology, Landhi, Karachi-22 showing that appellant Nafees Ahmed Khan is student of 1st year of the above institute and a challan regarding deposit of $s.118 in the National Bank of Pakistan. He has also produced Admit Card as Exh.8-A.
9. Appellants did not examine themselves on oath as envisaged by section 340(2), Cr.P.C. Not they examined any witness in their defence.
10. After taking, into consideration the evidence produced by the prosecution and the appellants, the learned Judge, Special Court has been pleased to convict the appellants as described above, while the co-accused was acquitted. The present appeal is directed against the above judgment of conviction.
11. We have heard Mr. Talmiz Burny, learned counsel appearing for the appellants, Mr. G.R. Warsi learned counsel appearing for the State, and have gone through the R&P of the case very carefully; It was contended by Mr. Talmiz Burny learned counsel appearing for the appellants, that the appellants are students and have been falsely implicated in the present case. He has further contended that the prosecution story that each appellant was found in possession of stengun kept under the folds of their Shalwars is absurd, unnatural and unreliable. He has further contended that them are serious contradictions in the evidence of S.H.O. And two Mashirs, and therefore, the learned Judge, Special Court has erred in convicting the appellants.
12. Mr. G.R. Warsi learned counsel appearing for the State, has conceded that looking to the nature of weapons and their weight it was impossible and unnatural for the appellants to have concealed the same under the folds of their Shalwars, and therefore, he does not support the prosecution.
13. After hearing the learned counsel appearing for the appellants, we sent for the weapons and the- complainant/S.H.O. Muhammad Suleman Mirza, and on a question from Court whether he could keep one of the stengun under the fold of his Shalwar and walk, he stated that the stenguns were not concealed by the appellants under the folds of their Shalwars but the same were found on their person and were visible, although according to the Mashirnama and F.I.R. The stenguns alongwith magazines were found thrusted in the folds of their Shalwars.
14. It was further pointed out by Mr. Talmiz Burny that according to Mashirs Abdul Jabbar P.W.3, and Obaidullah P.W.4, the accused were already with the police from whom 2 stenguns and 2 magazines were secured by the police in their presence Whereas according to S.H.O. Muhammad Suleman Mirza he received spy information that one Pathan was selling unlicenced arms and that even now two boys were with him as they wanted to purchase arms. Thereupon, he called two private persons namely Abdul Jabbar Khan and Obaidullah, and alongwith them proceeded towards Bone Mill, where according to his information the Pathan and two boys would be found. He found the Pathan and two boys standing in a Gali, near tea store in vicinity of the Bone Mill. The two boys were on a Motor-Cycle, they surrounded them and arrested them and recovered two stenguns with magazines.
15. From the above portions of evidence pointed out by Mr. Talmiz Burny, it is clear that there is a serious contradiction in the evidence of complainant as well as Mashirs inasmuch as according to complainant he had picked up the Mashirs on the way before reaching the place from where the, accused were arrested, while according to the Mashirs when they were picked up by police to act as Mashirs the accused were already with the police. It is also an admitted position that the accused/appellants are students and have A been in custody from 10-3-1990.
16. In view of the above discussion, we are of the considered view that the prosecution has failed to prove its case against the appellants beyond reasonable doubt, and therefore, while, extending benefit of doubt to the appellants, we allow this appeal, set aside their conviction and sentence, and they are acquitted of the charge. They shall be released forthwith if not required in any other case.
17. We had decided the above appeal by a short order on 27-2-1991 and these are the reasons for the same.