' SYED KHURSHEED HAIDER RIZVI, J.---The appellant was tried by the learned Judge, Special Court, Suppression of Terrorist Activities, Hyderabad for the offence punishable under section 13-E, Arms Ordinance. He found him guilty for the offence punishable under the aforesaid section and consequently, he convicted him and sentenced him to suffer R.I. For four years and to pay a fine of Rs,5,000 or in default to suffer R.I. For six months more by his judgment dated 17-4-1993. Against this judgment and conviction the appellant has filed the present appeal.
2. The case of the prosecution against the appellant is that S.I. Nazir Ahmad of P.S. Satellite Town, Mirpurkhas on 20-1-1993 received a message on telephone from Law Enforcing Agency's Headquarter at Mirpurkhas that an absconder Mahmood had been arrested and was in their custody. On receiving this information, he alongwith his staff left the police station and went to Army Headquarter vide Entry No,14 in the Roznamcha. In the Headquarter of the Army he was given the custody of the present appellant Mahmood. He was required in Crime No,14 of 1992 of P.S. Satellite Town, Mirpurkhas. He arrested the appellant and prepared such mashirnama in presence of Mashirs A.S.I. Muhammad Yousaf and H.C. Ghulam Mustafa. He interrogated the appellant and then the appellant volunteered to produce the fire-arm which he had concealed near Railway Crossing Umer Kot. The appellant, therefore, led the police party consisting of Nazir Ahmed, S.H.O., P.S. Satellite Town, A.S.I. Muhammad Yousuf and H.C. Ghulam Mustafa and others. There he, near the brick-kiln, dug the earth by a spade and took out a gunny bag which contained Klashnikov loaded with Magazine of 30 live bullets. A Mashirnama to this effect was prepared in presence of A.S.I. Muhammad Yousaf and H.C. Ghulam Mustafa. Thereafter, police party returned to the police station where an F.I.R. Was recorded under section 13-E, Arms Ordinance on behalf of the State against the appellant. After usual investigation, the appellant was sent up before the Court for facing trial.
3. A charge under section 13-E, Arms Ordinance was framed against the appellant to which he pleaded not guilty. Appellant denied the allegations in his statement. He stated that P.Ws. Had giveri false evidence against him. He neither examined himself on oath in disproof of the allegations against him nor produced any witness in his defence.
4. We have heard the appellant in person and the learned A.A.-G. Mr. Abdul Latif Memon on behalf of the State.
5. Prosecution examined P.W. S.I. Nazir Ahmed and Mashir Ghulam Mustafa to support its case against the appellant. Both the witnesses have stated that appellant was handed over to them by the Army as he was required in a criminal case and that in that connection he was interrogated and thereafter he volunteered to produce the fire-arm and then led the police party to Umerkot Railway Crossing, Mirpurkhas and there from under the brick-kiln he took out a gunny bag which contained a Klashnikov loaded with magazine and 30 live bullets. Appellant had no licence for the same. A Mashirnama to this effect was prepared after the fire-arms had been taken into possession.
6. Learned trial Court believed the evidence of these witnesses holding that the evidence of the police officials cannot be rejected merely on the ground that they are police officials and that the police officials had got no enmity with the appellant so as to involve him in a false case. In this connection, he referred the case of Safeer Hussain Qureshi v. The State 1992 PCr.LJ 1072 wherein it was held that testimony of the prosecution witness could not be discarded only on the ground of his being a police official particularly when police was not shown to have any grudge against the accused for implicating him falsely in the case. We are also of the view that evidence of a police official is as good as of any public man and that it is not necessary for the Investigating Officer to associate with himself any private person to witness the recovery of the fire-arms but we are also of the view that evidence of the witness whether he is a police official or not cannot be accepted merely for the reason that he does not have any enmity with the accused so that he may involve him in a false case. Evidence of each witness is to be assessed and appreciated in accordance with the law. In this case we have observed that both the prosecution witnesses have given contradictory evidence on very important point which renders their evidence to be of doubtful character. The case of the prosecution, as enumerated in the F.I.R., and the Mashirnama Exh.6, is that the appellant had himself dug the earth by a spade and then he had taken out a gunny bag containing a Klashnikov loaded with a magazine containing 30 bullets. In their evidence both the witnesses have given a different version. S.I. Nazir Ahmad had stated that appellant led them to Umerkot Railway Crossing and from under the bricks he took out a gunny bag containing a Klashnikov loaded with magazine containing 30 live bullets. On the other hand, the evidence of P.W.
Ghulam Mustafa, who acted as Mashir, is that accused led them to Umerkot Railway Crossing and from the brick-kiln he produced one Klashnikov loaded with magazine which contained 30 live bullets. It will be noted that both these witnesses have contradicted each other, in that, the evidence of S.I. Nazir Ahmad is that appellant had taken out a gunny bag from the bricks which contained the said fire-arm and bullets whereas P.W. Ghulam Mustafa had not said so but he had stated that appellant produced from the brick-kiln the said fire-arms. We give much importance to this contradictory version of the witnesses which, in fact, have totally belied the case of the prosecution.
7. Learned trial Judge has also referred section 8 of Suppression of Terrorist Activities Act and has mentioned that in view of this provision of law, appellant was bound to disprove the case of the prosecution which he failed to do. Section 8 of S.T.A. Act reads as under:--- "8. Burden of proof.---Where any person accused of having committed a scheduled offence is found to be in possession of, or to have under his control, any article or thing which is capable of being used for, or in connection with, the commission of such offence, or is apprehended, in circumstances which tend to raise a reasonable suspicion that he has committed such offence, he shall be presumed to have committed the offence unless he can prove that he had not in fact committed the offence."
' It is quite clear that appellant has to disprove the prosecution case only when the case is proved by the prosecution. In the case in hand we have observed that evidence of the witnesses examined by the prosecution is not of reliable character and, as such, the appellant was not at all bound to disprove the case against him. In Munawar Ali alias Munawar Hussain v. The State PLD 1993 SC 251 it was held that adverse inference cannot be drawn if accused declines to make statement in his defence on oath. It was further held that prosecution has to prove its case against accused beyond shadow of reasonable doubt and prosecution cannot take benefit of weakness of defence plea. In another case reported as Zaheer Din v. The State 1993 SCM R 1628 it was held by the Honourable Supreme Court that the fact that accused/appellant failed to prove his plea raised in defence, could neither reduce the burden of the prosecution to prove the case against him beyond all reasonable doubt nor it could be taken into consideration as a proof in support of the prosecution case.
' For the foregoing reasons, we have concluded that case against the appellant has not been proved by the prosecution and, therefore, we accept the appeal, set aside the impugned order and acquit the appellant.
' By our short order, dated 1-9-1993 we had acquitted the appellant and above are the reasons for the same.