' MUHAMMAD ASLAM ARAIN, J.--- Appellant Maqbool Ahmad was tried on charge under section 13-D of Arms Ordinance, by the Special Judge, Suppression of Terrorist Activities Court No,1, Karachi in Special Case No,472 of 1991, for having been found carrying a sten gun, loaded with magazine and 12 live rounds in his hand. At the conclusion of trial, by judgment, dated 29-1-1992, appellant is convicted and sentenced to R.I. For six years and fine of Rs,10,000 and in default of payment of fine to undergo further R.I. For one year. He is given benefit of section 382-B of Cr.P.C. The appellant has challenged his conviction and sentence.
2. The brief facts of the case are that on 18-8-1991, at 20-45 hours, Inspector All Yar Khan, S.H.O.
Police Station Model Colony, Karachi registered F.I.R. No,105/1991 under section 13-D, Arms Ordinance against the appellant. It was stated in the F.I.R. That at 7-15 hours, information was received through Central Police, that Bandits have gone in House No,C-7 near Security Printing Corporation. On such information S.H.O. Ali Yar Khan alongwith A.S.I. Ali Sher and other subordinate staff reached Jinnah Avenue Road near the gate of servant quarters of Security Printing Corporation. The police party heard the public asking for apprehending the culprit who was running away. The police party chased the culprit on Jinnah Avenue Road and overpowered him.
The culprit was carrying a country-made sten gun without number, loaded with magazine having 12 cartridges. The person arrested gave his name as Maqbool Ahmad son of Abdul Shakoor and on demand by police, he could not produce any licence for the said arm. After usual investigation the challan was submitted in the Special Court for the trial of the accused. Charge under section 13-D of Arms Ordinance was framed on 15-9-1991, to which the appellant pleaded not guilty.
3. At the trial the prosecution examined P.W.1 Ali Muhammad Exh.3, . Who acted as a Mashir to the Mashirnama of arrest and recovery Exh.4, the sketch of the sten gun Exh.5. It has come in evidence of this witness that he was coming from Malir Halt in a rickshaw and got down near Security Printing Press where he saw police running after a person whom the police overpowered and secured from him a sten gun loaded with 12 round magazine. The next witness examined by prosecution is P.W.2 Saifullah Khan Exh.6, Inspector Police, who was posted as S.H.O., Police Station Model Colony on 18-8-1991. He stated that on the said date, while he was present at the police station, police control gave information that in the area of Faisal Town near Security Printing Press, it was suspected that a dacoit was present. On such information, he formed a police party and reached the servant quarters gate of the Office of Security Printing Press and saw a person with sten gun running on Jinnah Avenue Road. The said accused was overpowered and on enquiry, he gave his name as Maqbool Ahmad. Mashirnama of arrest and recovery was repared in presence of Rana Munir and Pir Ejaz Hussain Shah Gilani. He also prepared the sketch of sten gun which he later on sent to the Ballistic Expert and produced the report of the Expert as Exh.8.
4. Statement of appellant under section 342 of Cr.P.C. Exh.10 was recorded wherein he pleaded innocence and his false involvement by the police. To a question whether the appellant would examine himself on oath, the appellant replied in affirmative. From the record it appears that the appellant was not examined on oath and there is no reason shown by the trial Court why appellant, who had opted to examine himself on oath, was not so examined. Appellant examined defence witnesses Maqbool Ahmad Exh.11, Muhammad Shafique alias Roshan Exh.12, Muhammad Sharif Exh.14, and Muhammad Jamil Ahmed Exh.15. D.W. Muhammad Shafique alias Roshan produced a certificate Exh.13, issued by a M.P.A. Regarding good character of one Muhammad Shafique alias Roshan a carpenter, with whom appellant worked on contract basis as a Dye Punch Maker. All the defence witnesses have unanimously stated that the appellant worked at the shop of Muhammad Shafique alias Roshan as a Dye Punch Maker and was of good character.
5. Mr. S. Muhammad Akbar, learned Advocate for the appellant, has contended that the area, wherefrom the appellant is stated to have been arrested, is a thickly populated area and no witness from the locality was called or associated to act as a Mashir. According to him, it has come in evidence that the so many persons had gathered near the Wardat and were asking for catching hold the culprit who was running away but none of such persons was either examined by the police or before the Court to prove if actually, it was the appellant, who was overpowered and found carrying sten gun. It is also contended that there is clear violation of the provision of section 103 of Cr.P.C. In support of such contention learned Advocate has referred to Yamin Kumhar v. State PLD 1990 Kar. 275 and Yar Muhammad and 3 others v. The State 1992 SCMR 96.
' It is next contended that the Ballistic Expert, to whom the stengun was sent for examination and report, has not appeared in Court with the result that valuable right of cross-examining said witness on the propriety of his report has been denied to appellant.
' Mr. K.M. Nadcem, learned A.A.-G. Appearing for the State, has supported the judgment of the trial Court and has argued that there was no reason for the police to falsely implicate the appellant. It is also contended that the independent witness Rana Munir Ahmed has supported the prosecution case which corroborates the version given by the S.H.O. Saifullah Khan. It is also contended that although Rana Munir Ahmed who acted as Mashir, did not belong to the locality, yet his evidence cannot be discarded on that ground. It is further contended that in every case compliance of section 103 of Cr.P.C. Need not be insisted upon, but the circumstances of each case should be examined to find out if the I.O. Was justified in not associating respectable witnesses of licality, where arrest, search or recovery is to be made. In support of such contention, reliance is placed on Mirza Shah v. The State 1992 SCM R 1475.
6. We have heard the learned counsel and perused the evidence as well as the judgment. The only independent witness examined by prosecution is Rana Munir Ahmed Exh.3, R.O. Model Colony, Malir.
This witness has stated that he had gone to Airport to meet his friend Ch. Aslam, a Secuirty Officer, who did not meet him. He hired a rickshaw for coming to Malir. At Malir Halt his friend Ejaz Hussain Shah met him and both of them were going in a rickshaw to Model Colony where this incident was noticed by him. It has come in the evidence of Inspector Saifullah Khan that one case against Mashir Rana Munir Ahmed is pending in the Court of S.D.M. Of the area. As such Rana Munir Ahmed seems to be well-acquainted with Inspector Saifullah Khan at whose instance he agreed to act as a Mashir.
7. Although a number of persons of the locality are said to have gathered at the Wardat asking for arresting the culprit who was running away, yet none amongst those was either examined as a witness or associated as Mashir. There is thus a clear violation of section 103 of Cr.P.C. And no reason has been shown for making a departure from the said provision of law.
8. There is another important aspect of the case of which we have taken serious note. The appellant wanted to examine himself on oath, but he is not examined. Only a typed statement of accused Exh.16 is available on record which reads, "after the statements of D.W.2, D.W.3 and D.W.4 I hereby close my side". The appellant being illiterate has thumb-marked on said statement but it does not mean that he had refused to examine himself on oath. A legal right is thus denied to the appellant, without any explanation available on record.
9. The evidence of the Ballistic Expert is also not recorded and his report is produced through Inspector Saifullah Khan. There is nothing on record to show why Ballistic Expert is not examined.
The accused is prejudiced in his defence due to non-examination of the expert.
10. No reasons have been given by the trial Court for rejecting evidence of each one of the defence witnesses who had testified to the good character of appellant and they were not discredited by the prosecution.
11. For the above mentioned reasons, we are of the view that the case against the appellant was not proved beyond reasonable doubt. The benefit of doubt on any point is to go to the accused.
We, therefore, while giving him benefit of doubt, allow the appeal and set aside the conviction and sentence. The appellant shall be released forthwith if not required in any other case.