1. ' RAJA QURESHI, J.--- The above-captioned appeal is filed under section 7 of Suppression of Terrorist Activities (Special Courts Act, 1975, calling in question judgment, dated 6-4-1995 of the Special Court No,I, (S.T.A.), Hyderabad, Sindh, whereby Case No,1 of 1995 was disposed of convicting appellant Fareed Ahmed Langra son of Saghir Ahmed under section 13-D and sentencing him to undergo rigorous imprisonment for seven years.
2. ' Briefly stated the relevant facts giving rise to the present appeal are that on 15-12-1994, S.H.O.
3. Muhammad Ejaz Bhatti of City Police Station alongwith his staff were on patrol duty and at about 2-30 a.m. (night time) they arrested the present appellant from Chotki Gitti Chowk, Hyderabad, and recovered one K.K. With magazine and 60 live bullets, two pistols, one revolver. The appellant is stated to have been unable to produce any arms licences and, therefore, the S11.Arrested him and accordingly prepared a Mushirnama and brought the appellant to the Police Station, Hyderabad, where he lodged the report under section 13-D of the Arms Ordinance, being Crime No,67 of 1994.
4. Details of the recovered weapons were duly recorded in the F.I.R. Which are as follows:- "Details of the recovered weapons
(1) One KK with folding No,66,56-19031530, one magazine and 60 rounds.
(2) One .22 bore pistol on which an English written as star point 22, and without No, and is working condition. One magazine 85 rounds.
(3) One TT pistol .30 bore without number wrapped in plastic in working condition, one magazine and 15 rounds.
(4) One revolver .32 bore, in working condition without number 15 rounds of .32 bore."
5. ' After completion of investigation the appellant was sent up to face trial in the Court of Special Judge, Court No,I (S.T.A.), Hyderabad.
6. ' On 15-1-1995 charge was framed against the appellant which for the purpose of ready reference is reproduced hereinunder:-- "Charge ' I, Abdul Majeed Bhatti, Judge, Special Court No,1, Suppression of Terrorist Activities, Hyderabad, do hereby charge you:-- ' Fareed Ahmed Langra son of Saghir Ahmed Rajput as follows:-- ' That on 15-12-1994 at about 2-30 a.m. (night) at Chotki Gitti Chowk, Hyderabad, you were found going armed with one K.K. With magazine and its 60 live bullets, and alongwith other weapons and ammunition in a Thella without licence in contravention of section 8 of the Arms Ordinance and thereby committed an offence punishable under section 13-D, Arms Ordinance and within the cognizance of this Court.
7. ' And I hereby direct that you be tried by this Court on the abovesaid charge.
8. ' Dated 15-1-1995 (Sd.)
9. Special Court No,I, ' Suppression of Terrorist Activities, ' Hyderabad."
10. ' The prosecution during the trial had examined two witnesses namely, P.W.1, A.S.-I. Muhammad Azhar, who had acted as Mashir of arrest and recovery and had produced the F.I.R. Consequent to the evidence of the two prosecution witnesses, the learned Special Public Prosecutor has closed the prosecution side and the applicant's statement under section 342, Cr.P.C. Was recorded. For the purposes of ready reference as it would be profitable at the stage of recording reasons, we would reproduce the statement of the appellant which is as follows:-- "I am innocent. The case is false and concocted by the S.H.O., Muhammad Aijaz Bhatti against due to enmity of the robbery of one licensed revolver of my maternal-uncle Muhammad lqbal son of Rasheed. I, my father Saghir Ahmed and the said Muhammad Iqbal are residing in one and the same house. On 13-9-1994 the licensed revolver was robbed by the six persons living in my neighbourhood from my maternal-uncle Iqbal and such intimation was given by said Iqbal to S.H.O., City Police Station Muhammad Aijaz Bhatti through telephone and subsequently he had lodged his report in writing but nothing was done by the S.H.O. Subsequently my maternal-uncle had sent the applications to S.H.O./S.D.P.O. City Police Station. S.P., Hyderabad and District Magistrate, Hyderabad, complaining against the abovenamed S.H.O. For not recovering the revolver to my maternal-uncle Iqbal. I and Iqbal were approaching the S.D.P.O./S.P. Complaining against the said S.H.O. For not doing justice to said Iqbal. On 14-12-1994 the S.H.O. Had called me, my father Saghir Ahmed and my maternal-uncle Iqbal on 9-00 p.m. In connection with robbery case of the licensed city and he confined all of us in the lock-up. When we did not go to the house due to confinement in the lock-up my mother Mst. Shahnawaz Begum very anxious and ultimately filed Constitution Petition No,D-521 of 1991 in the Honourable High Court, Circuit at Hyderabad on 15- 12-1994 alongwith her affidavit. I produce certified true copy of the said Constitution petition: as Exh.10. My father Saghir Ahmed is a Cashier in National Bank of Pakistan, Market Branch, Hyderabad.
11. Since my father could not attend the bank and the keys of the cash had remained with him, the business of the bank was delayed and suffered, therefore, the Assistant of the bank Mr. Abdul Bari and 2nd Officer Syed Siraj Ali had approached the S.H.O. To get the keys of the cash of the bank from my father for which he got from my father Saghir Ahmed. The S.H.O. Had also arrested me in Crime No,55 of 1994 of Police Station City Hyderabad on 15-12-1994 at 3-40 a.m. At police station and then acquitted me under section 169, Cr.P.C. After four days i,e, on 20-12-1994. The S.H.O. On account of the Constitution petition and the robbery case of the revolver had left my father and my maternal-uncle Iqbal and foisted this case by preparing false Mashirnamas in this case. I pray for justice."
12. ' The appellant had further examined himself on oath and had the same facts as were reflected in a statement under section 342, Cr.P.C. Reproduced hereinabove. In defence, the appellant had examined four witnesses namely Mst. Shahnawaz Begum D.W.1, his maternal-uncle Muhammad Iqbal as D.W.2, his father Saghir Ahmed as D.W.3 and Nadeem Hyder, Advocate as D.W.4. Both the prosecution witnesses have supported the case of the prosecution and have expressed their ignorance of the stand taken by the appellant in his statement under section 342, Cr.P.C. As well as the statement made on oath.
13. ' Indeed ignorance was shown with regard to the uncle of the appellant having been robbed of his licensed two weapons, the father of the appellant working in a bank as cashier and/or for that matter invocation of Constitutional jurisdiction by the mother of the appellant before this Court.
14. Before us it was submitted on behalf of the appellant:--
(i) Roznamcha Entry No,40 at 1-00 hours reflecting the raiding party to have gone on patrolling on foot in different areas has not been produced which makes the entire case doubtful;
(ii) Secondly, reliance was placed on Notification, dated 9-4-1994 (Ordinance XL of 1995) which had included automatic and semiautomatic weapons involved in the crime to be triable by the Special Judge under the Suppression of Terrorist Activities Act, 1975. The incident is, dated 15-12-1994 whereas Notification was issued on 9-4-1994. As such separate cases were required to be registered.
(iii) Thirdly, in the statement under section 342, Cr.P.C. No question whatsoever had been asked from the appellant in respect of .22 bore pistol, with one magazine and 85 rounds one TT Pistol .30 bore with one magazine and 15 rounds or for that matter one revolver .32 bore with 15 rounds.
(iv) Fourthly, question which was put to the appellant in his statement under section 342, Cr.P.C.
15. Related only to K.K. With other weapons without any description.
(v) Fifthly, no question was put to the appellant for production of licence.
(vi) Sixthly, the case property has not been reflected to have been sealed on the spot.
(vii) Seventhly, the case property had not been sent to Ballistic Expert.
(viii) Eighthly, the defence evidence has been totally discarded and the prosecution evidence without assigning cogent reasons has been accepted.
(ix) Ninethly, the disposal order of the property appearing in the judgment relates only to one K.K.
16. Whereas the remaining weapons are missing.
(x) Lastly, on one hand defence witnesses are close relatives whereas prosecution witnesses are Police Officers.
17. ' The learned counsel for the appellant has relied upon a reported Division Bench judgment of this Court 1997 M LD 1632, wherein it has been held that copy of the station diary having not been produced under which the prosecution had proceeded to place of incident and non-production of this vital document would create a serious doubt in relation to genuineness of the prosecution story.
18. The learned State Counsel in rebuttal to the non-production of copy of the station diary has only stated that in the station diary complete tour of the patrolling party is not reflected. In so far as this aspect is concerned, we cannot close our eyes to the infirmities of the prosecution version as according to the prosecution's version they had proceeded to the place of incident vide Entry No,40 but no copy of station diary has been produced to show that the police party led by the complainant had actually left the police station and proceeded to the place of incident. Non- production of this vital document surely creates a serious doubt in relation to the genuineness of the prosecution story.
19. ' In so far as the Notification, dated 9-9-1995 including automatic and semi-automatic weapons within the scope of the Suppression of Terrorist Activities Act, 1975 is concerned it will be pertinent to observe that the said Notification in fact came subsequent in point of time to the date of incident and, therefore, separate cases ought to have been registered which have not been registered. On the contrary, the said weapons are neither reflected to have been sealed nor have they been produced before the Trial Court and consequently the Trial Court has also not passed any order in respect of the remaining weapons for their disposal. In so far as the third proposition of the learned counsel is concerned that he should have been asked to produce the licences of the weapons in his statement under section 342, Cr.P.C. Reliance was placed on a reported judgment of Division Bench of this Court 1972 PCr.LJ p.165.
20. ' When we called upon the learned State Counsel, no satisfactory reply was given by him as he could not controvert what the record speaks. We are of a firm view that on examining the record, the present appellant was neither asked to produce licence for his weapons nor was any such question put to him regarding such licence in his statement at the trial. Hence not putting such question to the appellant in his statement under section 342, Cr.P.C. The appellant was precluded from giving any explanation for the same, and therefore, in our view the prosecution has failed to establish the case for possession of unlicensed weapons. In so far as the proposition of sealing the weapons on the spot and sending the same to the Ballistic Expert, record does not reveal that the weapons were sealed on the spot or for that matter were sent for certification of a Ballistic Expert.
21. When called upon, the learned State Counsel responded that recoveries made in respect of weapons triable for an offence under section 13-D, the same are not required to be sealed. We are unable to subscribe to the explanation given by the learned State Counsel as any recoveries which are made are required to be sealed before such witnesses of recovery who should be independent.
22. Indeed in terms of appreciation of evidence, all prosecution witnesses in the instant case are Police Officers and none from the public were associated during arrest and search proceedings. Place of alleged incident, admittedly, was a thickly populated area having shops, hawkers, even in the late hours of the night where private witnesses from public were available but no effort was made by the police to associate any such witnesses in arrest and recovery proceedings. Arms allegedly recovered from the appellant were not produced in Court or placed in evidence. No specific question was put to the accused/appellant during his statement under section 342, Cr.P.C. As to whether arms in question belonged to him which had caused serious prejudice to the defence.
23. Defence evidence has been discarded by the Trial Court in the instant case without giving any cogent reasons and without keeping in view the principle of correct appreciation of evidence i,e, even if witnesses were related to the appellant, then documentary evidence in terms of registration of earlier crime under section 17(3) in respect of the uncle of the appellant alongwith the filing of the Constitution petition, which surely substantiates the stand of the appellant of having been falsely implicated. Report of the Ballistic Expert is absent in the present proceedings.
24. ' As such for the purpose of examining the evidence and to determine as to whether a person is an honest witness, then there was no embargo in the way of the prosecution to have sealed the weapons on the spot, associated independent witnesses, obtained Ballistic Expert Report to ensure that specific question are put to the appellant in his statement under section 342, Cr.P.C., registered separate cases in respect of other weapons recovered as are reflected on record, produced the copy of.The diary, but all these aspects leave grave doubt in the case of the prosecution. In view of the aforementioned, we are of the candid opinion that it is not the duty of the defence to disprove the case of the prosecution. Defence plea may not be taken and may be, some time it is not proved but the burden of proof is not upon defence but is always on the prosecution to prove the case beyond doubt.
25. ' In this case, trial has been held under Special Law, the purpose and purport of which is expeditious disposal of case but then speed is not to be construed as haste. There is perceptible difference between speed and haste. Object of speed for observing the same can be achieved even after observing all legal requirements without indulging in any haste. There are legal maxims in the field which act, as guideline; one maxim is that "justice delayed is justice denied" and the other in the same context is that "justice hurried is justice buried". So, balance is to be struck between the two maxims. In process of F hurry, mistakes are made in the investigation and during trial. There is yet another thought provoking aspect that the appellant has been confined in custody and has also not been given any benefit of section 382-B of the Criminal Procedure Code.
26. ' For the foregoing reasons, we set aside the impugned judgment and direct the appellant to be set at liberty immediately, if not wanted in any other case.