JUDGMENT ABDUL RAHIM KAZI, J.- By this appeal the appellant has assailed judgment given by the Special Court No. 1H for Suppression of Terrorist Activities, Karachi in Special Case No. 24 of 1992, convicting the appellant under section 13B, Arms Ordinance and sentencing him to undergo R.I. For 5 years.
2. Briefly stated the facts are that on 18-3-1991 Inspector Haji Mohammad Yasin received information at about 4-00 a.m. That the present appellant and his two companions will be passing through the jurisdiction of his police station and on receiving such information, he informed the SSP and DIG, Karachi. He was directed that the police should gather at Police Station Nazimabad and a raiding party was accordingly formed to reach near Dawood Engineering College. The said complainant along with the police party reached the said area near Dawood engineering College and surrounded the same. They also picked up one Shafqat Ali to act as Mashir. At that spot and time they saw a white car bearing No. KAP 7432 coming towards them and when it reached near them the said Inspector signalled the car to stop but it did not stop rather the person who was driving the car, the present appellant started firing on the police party. The police party fired in their defence and the car then dashed against a tree. The present appellant was arrested on the spot while his two companions, namely, Mohammad Ali Khokkar and Sherazi Bangali, made good their escape. The appellant was injured and one Klashnikov along with two magazines 20 live rounds and 19 empties were recovered from him which were lying in the car. Car documents were also recovered.
3. The S.H.O, recorded his statement under section 154, Cr. P.C., narrating the above facts which was sent to the Police Station to be incorporated in the 154 Cr.P.C. Book. The police, after usual investigation put up the challan.
4. The prosecution examined Shafqat Ali, Mashir and Haji Mohammad Yasin, the complainant who produced the mashirnama and FIR with statement under section 154, Cr.P.C, and the Bellestic Expert's Report respectively. The statement of the accused was recorded under section 342, Cr.P.C, wherein he denied the allegations. The accused did not examine himself on oath but he examined Dr. Aftab Aziz of Abbasi Shaheed Hospital, as defence witness. Dr. Aftab Aziz produced Medical Certificate and a supplementary Medical Certificate. The documents of the vehicle were also produced as Exh. 37.
5. The trial Court, after hearing arguments of the counsel, was pleased to pass the above judgment and convict the appellant as mentioned above. Hence, this appeal.
6. We have heard Mr. Hussain Shah Rashdi, the learned counsel for the appellant, and Mr. M. Sarwar Khan, AAG, Sindh.
7. At the very outset the learned counsel for the appellant has pointed out that the whole incident, on the face of it, appears to be a concoction and the evidence brought on record shows that the prosecution has not been able to prove the case against the appellant beyond reasonable doubt.
Rather, a doubt has been created with regard to the genuineness of the prosecution case. He has pointed out that according to the statement under section 154, Cr.P.C, and the FIR, the present appellant and his two companions were required in 2 cases of Section 365A, PPC registered at North Nazimabad Police Station and Jamshed Quarters Police Station, being Crime Nos. 88 and 81 of 1991 respectively. He has pointed out that the present appellant was also sent up to stand trial in these two cases under section 365A, PPC and that the same mashir, namely, Shafqat Ali was examined in those cases as mashir of arrest. The learned counsel further pointed out that in those two cases under section 365A, PPC, the appellant was acquitted, the court having dis-believed the said mashir. The learned AAG has not been able to deny this contention from the papers available with him. Thus on the fact of it, when with regard to same incident the mashir of arrest and recovery of weapon has been dis-believed by the Court in two cases, how he can become a reliable witness for the purposes of the present case.
8. The learned AAG as argued that this- case is only with regard to the recovery of the weapons and therefore, the Court should not take into consideration the facts of the other cases. It may be observed that we are not relying on the facts of the other cases but at the same time the Court has to see from the circumstances of the case and the evidence available on the record if the same is trustworthy and can form the basis for conviction. In the present circumstance, not only this mashir has been disbelieved in the other two cases with regard to arrest of the present appellant, as mentioned in the present case but also the other circumstances show that he was either not present there or as a stock witness for the prosecution, he is giving evidence at their instance. This witness, in his cross-examination, has admitted that he has also acted as mashir in the case of Imdad Jatoi which case was also registered by the same police station. He has further stated in his cross-examination that when he had reached the place of incident the police party had already surrounded the area and there were quite a huge number of police mobiles and police personnels and that he had hid himself by hind a broken wall of a bungalow and it was through a hole that he was peeping and saw the incident including all the minute details thereof, which can hardly be possible in such circumstances.
9. Moreover, the mashir (PW-1) states in his cross-examination that it was after the encounter that the police had requested him to act as mashir, whereas the complainant, who is also the Investigating Officer, states that this mashir was with police party 5/10 minutes before the white car had come at the place of incident wherein the appellant was sitting. The mashir also states that it was the police who had opened fire on the car when the car did not stop on the signal of the complainant. Though out his evidence, he has not said if the occupant of the car had fired at the police party.
10. It is admitted by the complainant in his cross-examination that the police party comprised of no less than 60 persons and it is very surprising to note that the two co-accused could escape a circle of 60 police-men in the area.
11. All these contradictions go to show that either this witness Shafqat Ali was not present at the place of incident or he is deposing only at the instance of the Investigation Agency, as he is shown to be their stock witness. Even otherwise, this witness resides at Federal B. Area and not in the locality. He is a student of Karachi National College which is situated far away from then place of incident. In these circumstances, we are not inclined to rely on the evidence of this mashir.
12. Reverting to the evidence of the Investigating Officer it may be observed that in his statement under section 154, Cr.P.C., which is supposed to be the first version of the case given by him, he has not categorically stated if the police had also fired at the appellant or the co-accused. The medical evidence brought by the accused in his defence shows that he has suffered bullet injury on the right side of his chest. According to the I.O., as stated in his evidence, the injury caused to the appellant was on the leg near abdomen. There is a vast difference between chest and abdomen.
The injury sustained by the appellant shows that there was charring and, according to the medical officer he was fired upon from a distance of 2/3 feet. Now if the facts as shown in the present case are relied, then the appellant was sitting in a car seriously injured, having dashed against a tree, and in such circumstances there could be no occasion for the police party to have fired at him from a distance of 2/3 feet. The I.O. Could have stretched his arm and caught hold of the appellant in the car.
13. There is another glaring feature when the medical officer shows that the injured was brought to him for examination at 9.20 a.m. On the same date, and he was without the shirt. The mashirnama of the incident does not show if the appellant was not wearing any shirt at the time of his arrest. In these circumstances the question as to where and how the shirt of the appellant vanished, remains unanswered. It is for the prosecution to h&vs shown as to what they did with his shirt.
14. It may also be observed that no less than 60 policemen have fired at the appellant but still it has not been shown as to how many bullets had hit the motor car. Very conveniently the said motor car has not been produced in court and, as admitted by the I.O., the same has not been made case property although according to him, an encounter had taken place. It is also admitted position that no case under section 324, PPC has been registered against the appellant and his alleged companions for having attempted to cause murder.
15. Lastly, the learned counsel for the appellant has referred to the original mashirnama produced before the trial court as Exh.4. This shows the number of the recovered Klashnikov. A perusal of the meshirnama would reveal that some other number was originally written and by over-writing, the same has been changed.
16. In view of the above discussion, we are of the view that the prosecution has not been able to prove its case even prima facie against the present appellant. Rather, the facts show that the injury caused to the appellant is not in the manner as brought out before the trial court but the inference could be that the same was caused to the appellant, may be, at some different place and in different circumstances.
17. In view of the above discussion, we accept this appeal, set aside the judgment passed by the trial could and the conviction awarded. The appellant is acquitted and shall be released forthwith, if not required in any other case. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.