KAMAL MANSUR ALAM, J.- Each of the appellants in the abovementioned three Criminal Appeals has challenged his respective convictions by Special Court III (Suppression of Terrorist Activities)
Karachi. The three appeals arise out of Criminal Cases No.36/92, 38/92 and 37/92 respectively and in all these cases' Special Court (STA) Karachi by separate judgments, all dated 6.8.1992, found the appellants guilty under Section 13-E of the Arms Ordinance and convicted each of them to undergo three years' rigorous imprisonment. Since common questions of facts and law are involved in all these appeals, we propose to dispose OF these by this judgment.
2. The prosecution case briefly is that on 15.4.1992 at about 4.00 p.m. Rao Muhammad Iqbal, S.H.O.
P.S. Shah Faisal Colony, Karachi, accompanied by police staff was patrolling in a police van when near the round-about of Block 5 of the Colony he received information about some persons being present in House No.1033 in Block 5 duly armed with intention to commit terrorist activities. On receiving this information he asked one Mohammad Islam a milk vendor who was passing by on his bicycle to be a witness to the raid and, accompanied by the police staff and the above- mentioned Mohammad Islam he reached the said house. After surrounding the house the S.H.O, entered it along with the police staff and there he found some persons with arms and ammunition who on seeing the police attempted to escape from the black door but were caught hold of by the police. The names of these persons were Mohammad Imran, Mohammad Kamran, Nadeem Ahmed, Mohammad Rafique, Mohammad Jamil and Shahid Anwar. Although separate FIRs were lodged in respect of each appellant, the text of these is almost similar. The three appellants along with others were arrested and memo of seizure of arms and arrest was prepared by SHO Rao Mohammad Iqbal in the presence of witnesses Mohammad Islam and Head Constable Imtiaz Hussain. According to this memo one local made stengun with magazine loaded with four live cartridges was recovered from the possession of appellant Imran, one local made sten-gun with magazine loaded with four live cartridges was recovered from appellant Kamran, one local made stengun with magazine loaded with i.e live cartridges was recovered from appellant Nadeem Ahmed, one plastic bag with 100 packets each containing 20 live cartridges from Mohammad Rafique, one 7 m.m. Rifle with magazine loaded with i.e cartridges from Mohammad Jamil and four had-grenade-type ammunition from Shahid Anwar. All the three appellants were challaned in the Special court No. III (STA) where they pleaded not guilty to the charge for committing offence under Section 13-E of the Arms Ordinance and were accordingly tried.
3. In support of its case, the prosecution examined two witnesses, namely, Mohammad Islam as P.W.1 and SHO Rao Mohammad Iqbal as P.W.2. The examination-in-chief of both these witnesses is common in all the three cases but separate cross-examination is recorded in each case. Several witnesses were examined on behalf of the appellants/accused. On behalf of accused Imran, 4 witnesses were examined, on behalf of Kamran two witnesses were examined and on behalf of Nadeem 4 witnesses were examined.
4. We have heard at length Mr. M.M. Pirzada and Mr. Abdullah Chandio advocates, learned counsel appearing for appellants and Mr. Vakeel Qureshi for the State and have also gone through the record with their assistance.
5. In his examination-in-chief P.W.1 Mohammad Islam has narrated the event. It will be beneficial to reproduce hereunder portion of his examination-in- chief relating to the recovery of arms and identification of the appellant by this witness.
"Police and myself entered the said house. There were six boys on ground floor and they were sitting in one room. Those boys were having arms and ammunition in their possession. Three of the boys were armed with Sten-Guns and two of the remaining were having Rifle and the sixth boy was empty handed without any arms and ammunition. Those three boys who were armed with Sten Guns are not present today in this Court. The witness was provided ample opportunity to identify those three boys and after thinking and looking every face present in Court. Again said that those three persons Imran, Kamran and Nadeem are present in Court from whom the recovery of sten- gun-was affected. (The witness states that he was under misunderstanding about the other three boys who are not in Court and his explanation is that as those three are not present as such he could not understand and because of misunderstanding he has stated that those three boys are not present in Court today. The witness clarified that those three who were found in possession of the sten guns are very much present in court and he names those three as Imran, Kamran and Nadeem)".
6. The witness produced the memo of seizure and arrest as Ex.4. The above statement is not only inconsistent with the memo of recovery (Ex.4) but also shows that the witness initially failed to identify the three appellants in Court and it was perhaps on unquestioning that he was able to identify them. Contrary to the memo of recovery (Ex.4), according to which, apart from the three sten-guns recovered from the appellants, only one 7 m.m. Rifle was recovered and that was from Jamil, from Rafique 2000 cartridges were recovered and from Shahid 4 had grenade type ammunitions, this witness states on oath that, the appellants were armed with sten guns while two persons were having rifles and the third had no arms or ammunition. In his cross examination this witness admitted that police had not sealed the recovered arms and ammunition in his presence.
He also admitted that he was unable to identify different kinds of weapons. He stated.
"I cannot identify different kinds of weapons and I do not know the discrimination between the pistol, gun, rifle, repeater and K.K. Etc. In my presence the Police had not sealed the weapon on vardat. It is correct that Ex.4 was not read over to me. I just signed the same."
That the seized weapons and ammunition had not been sealed has also been admitted by the SHO Rao Muhammad Iqbal, P.W.2.
7. Deposition of a person unable to differentiate between various weapons can hardly be relied upon to prove recovery of specific Weapons. In our view non-sealing of the seized articles and inability of P.W.1 to identify different types of weapons would render his testimony, as also the memo of seizure (Ex.4), unworthy of reliance.
8. It is interesting that while on the one had PW.1 noticed such minute details as, Imran holding a sten-gun in his right had, he failed to notice if the house had a back door, although he claims to have entered the house with P.W.2 and according to P.W.2 on seeing police enter the house, accused attempted to escape from the back door.
9. The weaknesses in the prosecution evidence apart, the prosecution story itself appears to be unnatural. It is incomprehensible that six persons armed with deadly weapons, like sten-guns, rifle, had grenade etc. With intention to commit terrorist/subversive acts would quietly allow themselves to be hauld up without firing a single shot on seeing a few police personnel.
10. Defence case that all the appellants had been forcibly taken from their houses at about 5.30 a.m. In the morning of 15.4.92 by the rival group of MQM and were handed over to the police who booked them in false cases, seems to be more plausible on the basis of the evidence produced. All the defence witnesses have deposed that the appellants had been forcible taken away at adding 5.30 a.m. In the morning of 15.4.92. No doubt some of these witnesses, being near relations of the appellants, could be considered as interested but several others were independent, such; as, Mohammad Shahid, a driver in FIA Faruq Ahmed, a labourer who happened to pass Imran house while returning from mosque, Allah Ditta, a mason who was preparing to go for work, Mohammad Ibrahim, a shopkeeper who was on his way for Fajr prayers and Ghulam Hussain a bus conductor who was preparing to go for his duty. There is, therefore, no reason to discard the defence evidence in its entirety, all the more when those witnesses remained unshaken in their cross examinations.
Not only that; from the trend of cross examinations of the defence witnesses it appears that even the prosecution had abandoned its version of raiding the house in the evening on 15.4.92. This is apparent from the suggestion made to defence witnesses to the effect that the persons who had apprehended the appellants in the morning of 15.4.92 were police personnel in plain clothes.
11. It would also appear that the provisions of section 103 Cr.P.C, had not been duly complied with.
The only alleged private mashir was a passer-by who was picked up by the SHO without ascertaining his residence. Admittedly the areas was thickly populated and shops were open, as such, there could be no difficulty in securing the presence of two or more respectable in-habitants of the locality rather than a person belonging to a different locality more than a kilometer away.
We do not consider that in the circumstances of these cases the expression "inhabitants of the locality' used in section 103 would include the entire Shah Faisal Colony. This expression has to be understood in conformity with the prevailing conditions. In a thickly populated locality with residential and commercial areas and at a convenient time of afternoon when locality people are easily available in shops and houses, the expression would connote such area as is around or near about the place to be searched and not situated more than a kilometer away.
12. For the reasons discussed above, we are of the view that the prosecution has failed to establish its case beyond reasonable doubt and therefore giving the appellants the benefit of doubt, we accept these appeals, set aside the impugned judgments and order the release of appellants forthwith, if not required in any other case.