' MUHAMMAD ROSHAN ESSANI, J.--- This is an appeal filed by the appellant Arif Khan son of Hidayat Khan Akozai whereby he has challenged the impugned judgment, dated 4-1-1996 of the Special Court No,1, S.T.A., Hyderabad and his conviction under section 13-D, Arms Ordinance through which he was sentenced for four years' R.I. And fine of Rs,4,000 or in default further imprisonment for six months.
2. The prosecution case as alleged in the F.I.R. Is that complainant A.S.-I. Rao Amir Iqbal of Section "A", Latifabad, Hyderabad on 29-6-1995 at 10-15 p.m. Accompanied by A.S.-I. Rao Nazim, P.C. Atique Rehman and P.C. Mazhar Hussain proceeded from the police station in a private vehicle vide daily diary entry No,54 for patrolling; that during patrolling, when the police party reached main road of Unit No,11 near Fodder Cutting Machine at 11-00 p.m. They saw a person in suspicious manner who seeing the police party started running towards the street of Unit No,11; that he was encircled and apprehended on the spot; that on enquiry he disclosed his name as Arif Khan son of Hidayat Khan by caste Akozai, resident of House No,229/E Unit No,9, Latifabad; that on his personal search, a big mauser alongwith a magazine containing three live bullets were recovered from left side fold of his Shalwar; that he had no licence for the recovered weapon and the bullets. As further alleged: in the F.I.R. The complainant then brought the appellant at the said police station where he lodged the F.I.R. On behalf of the State on the same day at 11-30 p.m. As Crime No,70 of 1995.
3. During trial, the prosecution examined A.S.-I. Rao Nazim (Exh.4) who produced Mashirnama of arrest of appellant and recovery as Exh.4-A and the complainant Rao Amir Iqbal (Exh.5) who produced the F.I.R. (Exh.5-A). The appellant in his statement under section 342, Cr.P.C. (Exh.7) claimed innocence and denied the prosecution case, his arrest on 29-6-1995 and the alleged recoveries. His defence was that he is a motorcycle mechanic; that he and his three brothers were arrested by the police on 7-6-1995 from his house; that police released his brothers in the evening but detained him at the police station until 29-6-1995, when the instant F.I.R. Was lodged against him. He further stated that the news of his arrest as well as of his brothers on 7-6-1995 was published in Daily "Qaumi Akhbar" in its issue, dated 8-6-1995 and also in other newspapers.
Appellant had produced cutting of the said news items as Exh.8. He examined himself on oath under section 340(2), Cr.P.C. As Exh.9, and also one witness Jaleel Ahmed in defence as Exh.11.
4. The learned trial Court, however, by the impugned judgment, dated 4-1-1996 convicted the appellant and sentenced him as stated above. Following charge was framed by the trial Court:-- "I, Abdul Majeed Bhatti, Judge, Special Court No,I, Suppression of Terrorist Activities, Hyderabad, do hereby charge you; ' Arif Khan son of Hidayat Khan Akozai Pathan as follows: ' That on or about 29-6-1995 at about 11-00 p.m. At Main Road, near Kutur Machine Unit No,11, Latifabad, Hyderabad, you were going armed with one big mauser and one magazine containing three live bullets without licence in contravention of section 8 of the Arms Ordinance and thereby committed an offence punishable under section 13-D of the Arms Ordinance and within the cognizance of this Court.
' And I hereby direct that you be tried by this Court on the abovesaid charge."
5. We have heard Mr. Muhammad Aslam Bhatti, learned counsel for the appellant and Mr. Bahadur Ali Baloch, Advocate for the State who has not supported the impugned judgment and the conviction of the appellant. With the assistance of both the learned counsel we have gone through the evidence and material brought on record before the trial Court.
6. The learned counsel for the appellant has submitted that the appellant is innocent and he has been falsely involved in the case and that the appellant was arrested on 7-6-1995 and after illegal detention for about 22 days, he was challaned in the present case. In support of his contention the learned counsel has referred to Exh.8 which is a news item showing the arrest of some persons. The learned counsel further submitted that the place of arrest of the appellant is a thickly populated area but no independent Mashir was made. It was, thus, argued that the alleged recovery is in contravention of section 103, Cr.P.C. The learned counsel further stressed that the weapon was not sealed at the spot and that there are material contradictions in the prosecution evidence regarding the actual description of the weapon, which has made the alleged recovery as doubtful.
The learned counsel in support of his contentions has relied upon case of Nazar Muhammad v. The State 1996 PCr.LJ 1410. Learned counsel appearing for the State has supported the submissions made by the Advocate for the appellant.
7. Perusal of record indicates that P.W. Rao Nazim has stated in evidence that on 29th June, 1995 he alongwith A.S.-I. Rao Amir Iqbal and other police officials left the police station at 10-00 p.m. In a private vehicle for patrolling duty when they found a person in suspicious condition. He was apprehended and from his personal search, one T.T. Mauser and three live bullets were recovered from left side of fold of his Shalwar. It was further stated that the person apprehended could not produce licence of such weapon and bullets. In cross-examination, he admitted that the accused was apprehended from a populated locality and there were some shops. He, however, denied that suggestion that the appellant was arrested on 7-6-1995. The evidence of the complainant Rao Amir is also to the same effect. The appellant in his statement on oath stated that he was picked up from his house on 7th Muharram last year with his two brothers, who were released on the same day but the appellant was sent to Jail after 23 days and that police implicated him in a false case by foisting a pistol. D.W. Jaleel Ahmed (Exh.11) stated that he heard some commotion and woke up; his wife sent him out to enquire about the cause of commotion; that he went outside and found police party standing in a street; that police arrested accused Arif and his two brothers. In the evening he came to know that the police had detained Arif and released his other two brothers.
8. We have considered the evidence on record and we are of the view that the prosecution has not proved its case against the appellant beyond any reasonable doubt for several reasons. Firstly, the prosecution has not produced the copy of daily diary bearing entry No,54, dated 29-6-1995 to prove that the police party headed by the complainant or P.W. Nazim Rao had actually left the police station for patrolling on the date of alleged incident. Secondly, the evidence of description of the alleged weapon is also contradictory which makes not only the alleged recovery as not proved but the entire case as doubtful. It would be seen that the F.I.R. (Exh.5-A) discloses the weapon as big mauser whereas the evidence of both the prosecution witnesses show that T.T. Pistol was recovered from the accused. The list of property also shows the weapon as T.T. Pistol. The charge (Exh.2) discloses the alleged weapon as big mauser. In the statement of the accused under section 342, Cr.P.C. The question put to him was with regard to mauser and not about T.T. Pistol. The prosecution has not clarified this discrepancy about the description of the actual weapon nor has it been proved as to'what weapon was actually recovered from the appellant. The weapon produced in the Court, therefore, appears to be different than the weapon shown in the F.I.R. And Mashirnama of recovery. The weapon has not been sent to ballistic expert to prove that it was automatic or semi-automatic in order to bring the prosecution case within the scheduled offence.
9. The other weakness apparent in the prosecution case is that the F.I.R. And Mashirnama of arrest and recovery do not show that the alleged weapon Was sealed at the spot. As such, the contradictory evidence makes the alleged recovery doubtful. In the case of Nazar Muhammad v.
State 1996 PCr.LJ 1410 this Court considered the consequences of non-sealing of the recovered weapon at the spot and not sending it to the ballistic expert for examination and held inter alia, that "the prosecution had miserably failed to prove their case against the appellants and the scanty evidence of two Police Officers was not sufficient to bring home the guilt of the accused. We consider the evidence of recovery and arrest to be highly doubtful particularly when there is material contradiction as pointed out earlier. The conviction in these circumstances cannot be sustained".
10. Beside the fact that both the prosecution witnesses are police officials, who have admitted in their evidence that the place of arrest of the appellant was a thickly populated area and there were some shops at the spot, the prosecution evidence does not show that any efforts were made by the police to arrange for the private Mashirs, the alleged recovery, therefore, becomes doubtful.
As such, we are not inclined to uphold conviction on such weak piece of evidence not corroborated with any other reliable evidence. We are fortified in our view by the case Muhammad Azam v. The State PLD 1996 SC 67.
11. The defence plea that appellant was arrested on 7-6-1995 in my view, does not stand proved.
The evidence of cutting of newspaper (Exh.8) without examination of its author/reporter is inadmissible and is not acceptable in view of the law reported in Muhammad Ashraf Khan Tareen and another v. The State and another 1996 SCM R 1747. Similarly, the evidence of defence witness Jaleel Ahmed is also of no help to the appellant, as the witness has not deposed that as to on what date or month and time, the appellant was arrested by the police from his house. Though section 8 of Suppression of Terrorists Activities, Act, 1975 lays down that burden of proof of his innocence is on the accused but it is shifted to the accused only when the prosecution has first established the pre- requisite condition as provided in the first part of the said section. We have held above that the prosecution has not proved the alleged recovery and the same is doubtful; as such, the burden of proof has not shifted to the accused and he is not required to prove his innocence. In this respect, we are fortified by the case Abdul Rasheed v. The State PLD 1995 Kar. 16 and Abdul Zahir Khan v. The State 1994 PCr.LJ 2500.
12. Considering the entire evidence on the record and the case-law discussed above, we are of the considered view that the case against the appellant is not free from doubt. As such, we extend the benefit of doubt to the appellant and acquit him of the charge of section 13-D of the Arms Ordinance, 1965. The appeal is allowed and the conviction of the appellant is set aside.
13. By the short order, dated 27-11-1997, we had allowed the above appeal and ordered release of the appellant from the custody, if he was not required in other case. The above are the reasons of our short order.
' RASHEED AHMED RAZVI, J.--- I have had the privilege of going through the reasons, as proposed by my learned brother Muhammad Roshan Essani, J., to which I fully subscribe except to the extent of his finding that. The Exhibit 8 was not proved by the defence.
' In my considered view, rule laid down by the Full Bench of Honourable Supreme Court in the case of Muhammad Ashraf Khan Tareen and another (supra) is not attracted in the circumstances of the present case as in the reported case the newspaper cutting was not brought on record, as required by the rule of evidence, while in the instant case it was produced by the appellant during his examination and was brought on record as Exhibit 8. The prosecution was not able to deny this newspaper cutting. Even suggestions were not made by the counsel appearing for the prosecution before the trial Court that such newspaper cutting is either fabricated or concocted. In this view of the matter, Exhibit 8, which could not be termed to be a disputed document, stands proved. Under such circumstances, burden was shifted upon the prosecution to prove that the appellant was not arrested on the day when such news item appeared. No suggestion was put forward by the prosecution even to insinuate that such news item was published at the behest of the appellant.
Nevertheless, I may further add that it is humanly impossible for a person to come to know seven days earlier to his arrest that he would be arrested by a particular police station and for a specific offence. All these facts were not present in the case of Muhammad Ashraf Khan Tareen (ibid) and, therefore, in my view once this document (Exhibit 8) was not controverted, there' was no need of examining any Reporter or Editor of the said newspaper. With this view, I fully concur with the other findings of my learned brother Muhammad Roshan Essani, J.