1. ' SYED HAIDER ALI PIRZADA, J.--- The appellant was charged and tried under section 13-E of the Arms Ordinance before the learned Presiding Officer, Special Court No,III (Suppression of Terrorist Activities), Karachi who convicted and sentenced him to suffer R.I. For five years vide judgment, dated 12-9-1991.
2. ' The facts giving rise to the prosecution case are that on 6-6-1991 at or about 22-00 hours, the accused/appellant was arrested in a case registered under section 20, Enforcement of Hudood Ordinance of Police Station Brigade by Police Inspector Chowdhri Muhammad Latif. During the course of interrogation and investigation of the said case, accused disclosed that he had stolen one S.M.G., he could recover where the same had been concealed. Thereafter, Inspector Chowdhri Muhammad Latif alongwith police party, after making entry in the station diary, left the police station in Government vehicle alongwith accused and police personnel. Accused pointed the place in Lines Area near Madina Road, Jacob Lines, near the House R-531 of accused. Accused, after digging the ground open plot, got recovered one SMG wrapped in a polythene bag. He prepared the seizure memo. He also prepared sketch of the place of Wardat. The property was handed over to Moharrar and sent to Ballistic Expert for opinion.
3. ' After necessary investigation, the appellant was sent up before the Presiding Officer, Special Court No,III (Suppression of Terrorists Activities) Karachi. A formal charge was framed against the appellant to which he pleaded not guilty.
4. ' At the trial, prosecution examined A.S.I. Muhammad Anwar, Mashir, P.W.1 who had produced Mashirnama of arrest as Exh.4. He has stated that during interrogation, it revealed that one official SMG was in possession of the appellant. On this disclosure, again Ch. Latif formed party. The appellant led the party to House No,R-531, Jacob Lines, near the house. There was an open place.
5. He has further stated that the appellant dug earth and got recovered the SMG lying there alongwith the magazine. The number was 20066566. According to him, Mashirnama was prepared by the police on the spot. He has produced the same as Exh.5. It bears his signature. Inspector Chowdhri Muhammad Latif, complainant, P.W.2, has produced F.I.R. As Exh.6. He has also produced Ballistic Expert's report as Exh.9.
6. ' After the close of the prosecution case, the statement of the appellant was recorded under section 342, Cr.P.C. In which he denied the allegations. He has stated that he had not recovered the said K.K. He has examined Abdul Salam as D.W.1. He has stated that police had not brought any one in his presence. He has also examined Abdul Aziz as D.W.2. He has stated that near his house pedestrians pass through late. He has further stated that he had not seen police coming in the area on the said day (6-6-1991).
7. ' The learned Presiding Officer, Special Court No,III (Suppression of Terrorist Activities), Karachi, after taking into consideration the evidence produced by the prosecution and defence, has convicted the appellant as described above. The present appeal is directed against the above judgment of conviction.
8. ' We have heard Mr. Mairaj Ahmed, learned counsel appearing for the appellant, Mr. Muhammad Zubair Qureshi, learned counsel appearing for the State and have gone through the evidence.
9. ' Mr. Miraj Ahmed, learned counsel appearing for the appellant raised the following contentions:--
(1) The prosecution has not established its case against the appellant.
(2) There was non-compliance of provisions of section 103, Cr.P.C. Inasmuch as the Mashirs of recovery were subordinate to the complainant and no independent Mashir was cited as a witness.
10. ' Mr. Muhammad Zubair Qureshi, learned counsel appearing for the State has not supported the judgment. The prosecution has not proved its case beyond reasonable doubt against the appellant.
11. ' It appears from the record of evidence in the case that the Investigating Officer arrested the person suspected to be involved in the crime at 10-00 p.m. On 6-6-1991, interrogated him, recorded a statement in presence of Mashirs and then proceeded to the open plot near the House No,R-531 of the accused where the accused dug out one SMG wrapped in polythene bag. A Mashirnama was then prepared and then went to the police station.
12. ' It appears, as far as we have been able to gather from the judgment of the learned Presiding Officer, that the statement made by the accused person was at a time when he was in custody of a Police Officer, so the said statement about the theft of SMG is inadmissible in evidence. Learned counsel appearing for the parties have taken us through the evidence of two witnesses namely P.W.1 A.S.I. Muhammad Anwar, a Mashir and P.W.2 Inspector Chowdhri Muhammad Latif, Investigating Officer.
13. ' This leads to the consideration of the evidence of the two witnesses referred to above.
14. Muhammad Anwar has stated that he alongwith Inspector Chowdhri Abdul Latif and police personnel were on patrol duty in the area of the police station. A secret information was supplied to S.H.O. By informer that two persons are available at Madina Road who are suspect of theft and robbery cases. Those two persons were arrested by Ch. Latif and the party. Personal search was made but nothing was recovered from them. Mashirnama was prepared (Exh.4). He has stated that during interrogation it revealed that one official SMG was in possession of Aamir accused. On this disclosure, again Ch. Latif formed party. The accused led the party to House No,R-531, Jacob Lines where near the house, there was an open space. The accused dug earth and got recovered the SMG lying there alongwith the magazine. A Mashirnama of recovery of SMG was prepared and which is produced as Exh.5.
15. ' Then there is evidence of the Investigating Officer (P.W.2), the substance of which has already been stated earlier. The witness, therefore, proves that there was a theft of one SMG from the police station.
16. ' We are, therefore, satisfied that there is sufficient and reliable evidence that there was a theft of SMG from the police station.
17. ' The next question that arises for consideration is whether the appellant is guilty of the offence for which he was charged. In other words, whether there is sufficient reliable evidence against him so as to convict him under section 13(e) of the Arms Ordinance. In the instant case, the accused was not convicted for stealing the SMG from Soldier Bazar Police Station. There was no evidence as to who had kept the SMG at the place from where it was dug out. In our opinion, therefore, it is not possible to hold in this case that there is sufficient and reliable evidence to connect the appellant with the possession of unlicensed SMG. For these reasons, we are not satisfied that the appellant could be found guilty of possessing unlicensed SMG alongwith magazine.
18. ' The other point taken by the learned counsel for the appellant was that it has not been established from whose possession the SMG had been recovered or that the open plot behind House No,531, Jacob Lines, from where the SMG was recovered. There is no evidence to show that the open plot behind House No,531 from where SMG alongwith magazine was recovered, was in exclusive possession of the appellant. Having heard learned counsel for the appellant as well as for the State, we think that the prosecution had failed to bring home the charge under section 9 read with section 13(e) of the Arms Ordinance against the appellant.
19. ' The last point is that there was non-compliance of provisions of section 103, Cr.P.C. This question was considered by a Division Bench of this Court in a case reported in PLD 1990 Kar. At page 275.
20. This decision was followed in a number of cases. Reference can also be made to cases reported in PLD 1992 Kar. 95 and PLD 1990 SC 1083. The Honourable Supreme Court has approved the above decision in an unreported judgment, dated 2-7-1991 in Yar Muhammad and 3 others v. The State 1992 SCMR 96.
21. ' In the light of the above dictum, we will examine the statements of prosecution witnesses to see whether recovery has been proved beyond reasonable doubt P.W.1 was A.S.I. Of Police Station Brigade who stated that he alongwith Inspector Abdul Latif and police personnel was on patrol duty in the area of this police station. A secret information was supplied to S.H.O. By informer that two persons were available at Madina Road who are suspect of theft and robbery cases. They reached Madina Road. They were arrested by Ch. Latif and party. During interrogation, it revealed that one official SMG was in possession of Aamir accused. On this disclosure, again Ch. Latif formed party. The present appellant led the party to House No,R.531, Jacob Lines. Near the house there was an open place. The present appellant dug out earth and got recovered the SMG lying alongwith the magazine. He has admitted that the recovery area is thickly populated.
22. ' P.W. Inspector Ch. Latif has stated that during the course of interrogation and investigation appellant disclosed that he had stolen one SMG from the area of Soldier Bazar Police Station and the same SMG he could recover where the same had been concealed. To a suggestion, he replied that the area of recovery is very sensitive in sense of firing and terrorist activities, therefore, he could not get any public Mashir at this odd time of recovery of arm at 10 p.m.
23. In the instant case, both the persons are in police service. Their testimony is treated with incredibility and cannot be believed because firstly the area is sensitive and secondly there are houses near the open plot. Thirdly the open plot is near dispensary. The recovery of SMG and magazine is doubtful. In the absence of any independent and reliable evidence of recovery, the appellant cannot be convicted.
24. ' For the aforesaid reasons, we are unable to maintain the conviction and the sentence is set aside and the appellant is acquitted of the charge levelled against him.
25. ' The above are' the reasons for the short order dated 19-3-1992 passed on conclusion of arguments and the appellant was directed to be set at liberty forthwith if not required in connection with any other matter.