1. MAMOON KAZI. C. J.- Appellant Nadeem Ahmed was tried by the Special Court No. 1.. Suppression of Terrorist Activities. Karachi, for having committed an offence under Section 13(d) of the Anns Ordinance and found guilty of commission of the said offence. He has been convicted accordingly and sentenced to suffer rigorous imprisonment for five years and to pay a fine of Rs. 5000/- (Rupees five thousand). In default of pay ment of fine, he has been further sentenced to suffer rigorous imprisonment for six months.
2. According to the case of the prosecution. The appellant teas found to be in possession of a 30- bore TT pistol with five bullets, loaded in a magazine, by Fazal Hussain. SIP police Station Pak Colony, on 5.8.1995, when he was bn patrol duty. As the appellant could not produce any licence tor the same, he was arrested and a mashirnama was prepared in presence of mashirnama.. PWs Ahmed Hussain and Fateh Muhammad. A FIR w as then registered at the said Police Station under Section 13(d) of the Arms Ordinance.
3. The appellant pleaded not guilty to the said charges. According to him he was picked up by the police on the night of the 4th and the 5th August. 1995. fr6m his residence situated in Pak Colony.
4. Old Golimar, in presence of DWs Muhammad Sabir and Muhammad Rafique and one Mustafa. The appellant's statement was also recorded under Section 340(2) Cr.P.C. He examined the said witnesses in his defence who fully supported his version, version.
5. The prosecution. Examined PWs Ahmed Hussain and Fazal Hussain, who were posted at the said police station as a police constable and a Sub- Inspector respectively. The prosecution case was fully supported by the said witnesses. PW Ahmed Hussain, during his cross-examination, also denied that the appellant had been picked-up from his residence on the night of the 4th and the 5th August. Both the witnesses further denied the suggestion that the "appellant had been falsely implicated in the case.
6. The learned trial Court upon such evidence found that the case of the prosecution had been fully established. A recoveries had been made, from the appellant, during the search, the learned trial Court was of the view; that it was not possible for PW-2 SIP Fazal Hussain to strictly comply with the provisions of Section 103 Cr.P.C, and procure independent witnesses to witness the search the learned trial Court was also- of the view that according to the special provisions of Section 8 of the Suppression of Terrorist Activities (Special Courts), Act. 1975, burden of proof was on the accused, which the appellant had failed to. Discharge in the present case. Therefore, the prosecution had succeeded fully in establishing its case against the appellant. The appellant was, therefore, convicted and sentenced accordingly.
7. The main contention of Sardar Muhammad Ishaque, learned counsel for the appellant, before us has been that although the appellant had examined witnesses in his defence, but the learned trial Court failed to take their evidence into consideration and convicted the appellant upon consideration of the prosecution evidence only. The contention appears to have a lot of force. As pointed-out earlier, the appellant had examined DWs Muhammad Sabir and Muhammad Rafique in his defence besides getting his statement recorded on oath under Section 340(2) of the Code of Criminal Procedure. Both the said witnesses had fully supported the appellant by stating that the appellant had been picked up by the police from his residence in Pak Colony- on the night of the 4th and the 5th August. 1995. The w witnesses, according to them, lived in the same locality where the appellant resided and had witnessed the said incident. However, the defence version appears to have been completely discarded by the learned trial Court on the ground that the defence theory was not put to SIP Fazal Hussain who w as the Investigating Officer. Although, the learned trial Court appears to be right in this regard, but nevertheless the other PW who was an equally important witness for the prosecution, had been cross-examined on the point. When, there were two different versions, one given by the prosecution and the other by the defence, it was imperative that the learned trial Court should have kept them in juxtaposition and arrived at its conclusion accordingly . However, evidently, the same has not been done in this case. We are. Therefore, of the view1 that the entire evidence recorded by the learned trial Court requires re-appraisal.
8. In the result, the appeal is partially allowed, the judgment is set aside and the case is remanded to the learned trial Court for delivering a fresh judgment after reconsideration of the entire evidence recorded by it. Since the appellant is in custody, it is expected that the learned trial Court will record its findings as expeditiously as possible and preferably within one month after receiving the record of the case from this Court. 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.