' MUHAMMAD HUSSAIN ADIL KHATRI, J.--- The present appeal is directed against judgment, dated 26-1-1995 passed by the learned Judge, Special Court-III for Suppression of Terrorist Activities, Karachi in Special Case No,120/93 wherein he found the appellant guilty of possessing a klashnikov with magazine and 20 rounds without valid licence for it and accordingly convicted him for offence under section 13-D, Arms Ordinance, 1965. He was awarded sentence of rigorous imprisonment for three years and fine of Rs,2,000 in default of payment whereof he was to suffer further R.I. For two months.
2. The case of the prosecution is that on 12-8-1993 Sub-Inspector Tika Khan of Police Station Gulzar- e-Hijri Karachi was on patrol duty. When he reached Sohrab Goth Bus Stop at about 6-30 p.m. He found the present appellant alighting from a bus carrying a basket. On search of the appellant in presence of the witnesses he recovered one klashnikov loaded with a magazine containing 20 rounds. He enquired about the licence. Since the appellant was not in possession of any valid licence for the above weapon, he was arrested for an offence under section 13-D of Arms Ordinance. The case was registered against him and he was challaned accordingly.
3. The appellant was convicted on the basis of evidence of P.W.1 Fazalur Rehman and P.W.2 Tika Khan. P.W.1 was examined as witness of recovery of the weapon from the possession of the appellant. He had deposed that he was coming to Sohrab Goth. When he reached the bus stop, meant for passengers coming from Hyderabad, he saw the appellant alongwith a child. He was carrying a basket. One Police Officer took search and recovered klashnikov loaded with magazine.
It was recovered by the police under memo. Of recovery which has been produced as Exh.4. The witness identified the same in Court. P.W.2 Tika Khan narrated the same story and further stated that the recovery was effected by him in presence of the witnesses Saeedur Rehman and Abdul Rauf.
4. We have heard Mr. Suleman Habibullah, Advocate for the appellant and Mr. Abdul Latif Ansari, AA.-G. For the respondent.
5. The learned counsel for the appellant has submitted that the name of Saeedur Rehman, who was joined as a witness of recovery, was tampered in the police record to read as Fazalur Rehman and it was one Fazalur Rehman, and not Saeedur Rehman, that was examined as prosecution witness to establish recovery of the weapon.
6. With the assistance of the learned Advocates we have gone through the record. The memo. Of recovery of the weapon was produced as Exh.4. In the body of the memo. The name of Saeedur Rehman has been overwritten as Fazalur Rehman. At the bottom where the description of the name of the witness is given an attempt has been made for tampering the name of Saeedur- Rehman to read as Fazalur Rehman. The signature of the witness thereon has been concealed applying whitener and the copy of the F.I.R. Which in fact is a carbon copy also shows that the same material has been used to conceal the word Saeed by overwriting as Fazal. However, the challan mentions name of Saeedur Rehman as the witness and not that of Fazalur Rehman.
7. The learned Advocate for the appellant also brought 0 our notice summons issued to the prosecution witnesses for their appearance before the trial Court on 21-10-1993. In the above summons the name of the above witness is described as Saeedur Rehman. In the copy of the said summons again the name is described similarly. He also brought to our notice the non-bailable warrant of arrest of the prosecution witness for his production in Court on 1-8-1994. This also describes the name of the witness as Saeedur Rehman.
8. P.W.2 Tika Khan who has acted as an Investigating Officer and who alleges to have arrested the appellant and recovered the weapon from him, while deposing in Court stated that such recovery was made by him in presence of Mashir Saeedur Rehman.
9. From the above it is abundantly clear that the recovery from the appellant was allegedly effected in presence of Saeedur Rehman. The prosecution instead of producing the above witness, has examined Fazalur Rehman who does not figure anywhere in the prosecution record. The evidence of Fazalur Rehman is, therefore, to be discarded. Having noted that the investigation papers have been tampered, serious doubts have crept in regarding prosecution case, making it difficult to place explicit reliance on the alleged recovery.
10. No description of the weapon with regard to its number, etc., has been mentioned in the memo.
Of recovery or F.I.R. Or challan or any other document on record. The absence of description of the above kind, keeps the gate open for substitution of the weapon, at the whims of the prosecution side, so that the case could attract the provisions of Suppression of Terrorist Activities Act, 1975, even where the case, in fact, originally was beyond its jurisdiction. It reflects on the honesty of the investigation and recovery and renders the prosecution unworthy of any credence.
' The record also does not show if the said weapon was kept under seal. The appellant is alleged to have alighted from the bus coming from Hyderabad. Therefore, it is inferred that the appellant had carried the weapon from Hyderabad to Karachi. According to the prosecution the weapon was carried, wrapping it in a cloth and keeping it in a basket to conceal it. However, neither the cloth nor the basket were produced in Court. Such failure in the facts and circumstances of the case, has assumed importance and reflects adversely on the prosecution case.
11. The appellant in reply to the Court question had expressed his intention to examine himself on oath but the Court overlooked the above statement and did not examine the appellant. Section 340(2), Cr.P.C. Lays down that an accused person shall be a competent witness for the defence and may give evidence on oath in disproof of the charges or allegations against him. The omission on the part of the Court, in re-examining the appellant as his own witness in disproof of the allegation made against him, has vitiated the trial.
12. In view of the above facts we find that the prosecution has failed to prove the charge against the appellant. We, therefore, allow this appeal, set aside the impugned judgment, dated 26-1-1995 passed by Special Court III for Suppression of Terrorist Activities, Karachi and acquit the appellant.
He shall be released forthwith, if not required in any other case.