1. ' MUHAMMAD ASLAM ARAIN, J.--- This appeal under section 7 of the Special Courts (Suppression of Terrorist Activities) Act, 1975 is directed against the judgment, dated 25-10-1994 passed by the Special Court IIIrd (S.T.A.) Karachi whereby appellant who was tried for an offence under section 13- D, Arms Ordinance, is convicted and sentenced to R.I. For 5 years and fine of Rs.10,000 or in default to suffer further R.I. For one year. Appellant is given benefit of section 382-B, Cr.P.C.
2. ' The prosecution case in brief is that on 8-1-1994 S.I. Tajammul Hussain of C.I.A. Centre Saddar Karachi was busy in the investigation of Crime No,384 of 1994 of Police Station Clifton Karachi, when during patrolling he received spy information that three armed persons were standing near Kinara Restaurant near Sea Breeze Apartments. On such information the Inspector associated private witnesses Muhammad Saleem and Muhammad Rafiq and reached at the pointed place. The appellant herein was found carrying a K.K. And one revolver which was taken into possession by the Inspector. Likewise, the other two accused were also searched and from their possession arms were recovered but as the same were not covered by the schedule to the Act, they were challenged before the ordinary Court of law, Besides the K.K. Recovered from the appellant, it is alleged, that 20 live cartridges were also secured and the accused had no license for the recovered arms, he was sent up before the Special Court while for the recovery of the revolver the case under section 13-D of Arms Ordinance is sent up against the appellant before the ordinary Court. On usual investigation a challan was submitted against the appellant before the Special Court where charge (Exh.2) was framed on 3-5-1994 to which the appellant pleaded not guilty and claimed trial.
3. ' Prosecution examined P.W.1 Muhammad Rafique Mashir, (Exh.3) who produced Mashirnama of search, recovery and arrest (Exh.4) and P.W.2 Tajammul Hussain (Exh.5) who produced his 154, Cr.P.C. Statement recorded by him and sent to the police station for being incorporated in 154, Cr.P.C. Book (Exh.6), F.I.R. No, 5 of 1994 (Exh. 7) and the report of the Ballistic Expert (Exh.8). Under a statement (Exh.9) prosecution closed its side.
4. ' In his statement under section 342, Cr.P.C. Appellant denied the allegations made against him and stated that he was arrested from Chilia Band Water Regulator at 9-30 or 10-30 p.m. On 30-12-1993 and the weapons have been foisted upon him. The appellant did not examine himself on oath as his own defence witness but examined D.W.1 Khuda Dino (Exh.11) and D.W.2 Ali Hassan (Exh.12). Both the witnesses stated that in their presence Inspector Tajammul Hussain had arrested the appellant from Chilia Band Water Regulator on 31-12-1993. On conclusion of trial the appellant is convicted as stated above, which is challenged through this appeal.
5. ' We have heard the learned counsel for the appellant and the learned A.A.-G. The contentions raised on behalf of the appellant by the learned counsel is that the only private witness examined in the case is P.W. Muhammad Rafique whom the Inspector associated as a Mashir and the said witness admitted in his examination-in-chief that the Mashirnama which was prepared by the police at the site was signed by him at C.I.A. Centre Saddar Karachi and as such the Mashirnama loses its sanctity; that the Mashir Muhammad Rafique is a stock-witness as in the Mashirnama his address given is Katchi Abadi Shah Rasool Colony Karachi whereas in his evidence before the trial Court he gave his address as Rajput Colony, Block-3, Gulshan-e-Iqbal, Karachi and such a witness cannot be said to be independent and respectable inhabitant of the area for the purpose of compliance of section 103, Cr.P.C., that there is material contradiction in 154, Cr.P.C. Statement and the evidence of the Investigating Officer inasmuch as in 154, Cr.P.C. Statement it is shown that three culprits were sitting on a wall at the Sea Breeze Apartments while in his evidence before the Court, the Inspector Tajammul Hussain has stated that three accused were standing; that the evidence of the defence witnesses has been brushed aside by the learned trial Court for no valid reasons and that the law is that the prosecution evidence is to be put in juxtaposition with the defence evidence and if the evidence adduced by the accused either rings true or inspires confidence, the benefit of the same has to be given to the accused. In support of his contention that the Mashirnama was signed by the Mashir at the C.I.A. Centre and not at the place of occurrence, learned counsel referred to the case of Hamzo and 2 others v. The State 1972 PCr.LJ 478 where a D.B. Of this Court held that the Mashirnama prepared at the police station was doubtful. As to the next contention that the defence evidence has to be placed in juxtaposition with the prosecution case, learned counsel referred to the case of Nadeem-ul-Haq Khan and others v. The State 1985 SCMR 510 where it was observed by the Honourable Supreme Court that in a criminal case, it is the duty of the Court to review independent evidence that has been produced by the prosecution with the defence and if after an examination of the whole evidence the Court is of the opinion that there is a reasonable possibility that the defence put forward might be true, it is clear that such a review reacts on the whole prosecution case and the accused is entitled to benefit of doubt in the circumstances not as a matter of grace but as of right.
6. ' Mr. M. Sarwar Khan, learned A.A.-G. Has supported the conviction and has contended that P.W.
7. Muhammad Rafique is a private witness and used to sell grains at the place of Wardat and his presence was natural. Learned A.A.-G. Further contended that the Mashir resided at Shah Rasool Colony and in his evidence if the Mashir has given different address, no specific question was put to this witness to contradict him. It is further contended that the Investigating Officer had neither any motive nor malice against the appellant to falsely implicate him in a case like this. It is also pointed out that the appellant in his statement under section 342, Cr.P.C. Stated that he was arrested on 30-12-1993 whereas the two defence witnesses have stated that the accused was arrested in their presence on 31-12-1993. Thus, according to the learned A.A.-G., the two defence witnesses who are caste fellows of the appellant have given obliging statements and no reliance could be placed on such evidence.
8. We have considered the above contentions and have gone through the entire evidence as well as the impugned judgment. The only independent witness in the case is Muhammad Rafique who admitted in his examination-in-chief that his signature on the Mashirnama (Exh.4) was obtained at C.I.A. Centre Karachi When, in our view, there was no occasion for Inspector Tajammul Hussain to take the Mashir with himself and other police party to C.I.A. Centre and to obtain their signatures there. P.W. Muhammad Rafique has given his address at the trial which is different from the address given in the Mashirnama and we find some force in the contention of the learned counsel for the appellant that the Mashir is a stock-witness although no specific admission is made by either of the two' prosecution witnesses. In the case reported in 1972 PCr.LJ 478, above referred, the evidence with regard to the .Preparation of the Mashirnama of the recovery of articles was ruled out of consideration, for, it was admittedly prepared at the police station and not at the place of Wardat.
9. ' Learned defence counsel had specifically put questions to the Investigating Officer Tajammul Hussain in cross-examination with regard to the residence of Mashir P.W. Muhammad Rafique and the answers given by the Inspector are not confidence inspiring.
10. The law by now is well-settled that the defence evidence has to be put in juxtaposition with the prosecution evidence and if the same inspires confidence, benefit has to be given to the accused who is always considered innocent till proved guilty. The learned trial Court in the impugned judgment has brushed aside the defence version and has observed as under:-- "The two witnesses produced by him in his defence are his villagers and as such they are interested witnesses. Moreover, no writ petition was filed on his behalf by his family members for his illegal arrest and implication in this case. No application was submitted on his behalf before high officials of the police or Home Department for excesses committed by the police. Therefore, version of the accused seems to be concocted."
11. This approach of the learned trial Court, in our view, is not only erroneous but is not warranted by law. Mere relationship of a witness with the accused would C not brand a witness as either unworthy of credence or even unreliable. The view 1111 taken by the learned trial Court in rejecting the defence evidence cannot be countenanced on mere assumption that the defence evidence was inconsequential for the reasons given by it.
12. ' As a result of the above discussion, we find that the case against the appellant was not proved beyond reasonable doubt and while extending benefit of doubt to appellant, we allow this appeal and set aside the conviction and sentence and acquit the appellant. He shall be released forthwith unless required in any other case.