HAMID ALI MIRZA, J.--- This is an acquittal appeal under section 417, Cr.P.C. Read with section 25(4) of the Anti-Terrorism Act, 1997, directed against judgment of acquittal, dated 19-5-1999 passed by Anti-Terrorism Court No,II, Karachi Division in Special Case No,4 of 1999 (The State v. Muhammad Babar Lodhi and another) against the respondents, who were tried under section 13-D of Arms Ordinance as per F.I.R. No,77 of 1998 of Police Station Khokhrapar and under section 392/34, P.P.C. As per F.I.R. No,183 of 1998, whereby they were acquitted by the trial Court, hence this appeal.
2. Brief facts of the case are that one Ahmed Ali lodged report on 19-10-1996 at 9-20 a.m. At Police Station Malir City, stating therein that two persons robbed his taxi car No,JL5213 near Khumaini street, who had hired the same for City Courts. Inspector Rahim Khan Bangash, S.H.O. Of Police Station Malir received the said information about the robbery of the said taxi while he was patrolling in the area, where he found the said taxi car standing in open space near House No,R-53 situated in Ghai Town Phase-1, Karachi at 9-45 a.m., who on inspection of car found one gunny bag lying in dickey which, on opening contained a dead body having fire-arm and stab wounds and the legs of the deceased were found to be tied with nylon rope. The said S.H.O. Prepared the memo.
Of recovery of the taxi and dead body in presence of Mashirs A.S.-I. Tariq Siddiqui and Madad Ali and also held inquest upon the dead body and prepared such report and then he despatched the dead body for post-mortem examination to J.P.M.C. Through A.S.-I. Tariq Siddiqui. The said S.H.O.
Prepared 154, Cr.P.C. Statement and sent to Police Station Malir City for its incorporation in the 154, Cr.P.C. Book and which was registered as Crime No,184 of 1998, by S.I.P. Muhammad Aslam Jatoi under section 302/34, P.P.C. The post-mortem examination was conducted by Dr. Shahid Iqbal Danish and as the dead body was unidentified, therefore, after completion of the post-mortem report the same was kept in the cold storage of Edhi.
3. On 20-10-1998 P.W. Muhammad Roshan saw photograph of deceased, published in daily Awam newspaper, after identifying it to be that of his son Asif alias Kala (deceased), approached Police Station Malir City, who was taken to cold storage of Edhi, where he identified the dead body to be of his son and thereafter the said dead body was given to him for its burial. On 3-11-1998, A.S.-I.
Muhammad Hussain of Police Station Khokhrapar apprehended respondent Muhammad Babar Lodhi at 7-30 p.m. While conducting snap checking at K.D.A. Chowk, "G" Area, Karachi, whose person was searched and found from the folds of his Shalwar one pistol of .30 caliber, loaded with 3 rounds and a sum of Rs,80 in cash. The said respondent could not produce the licence for keeping the said arms and ammunition, hence the same were seized and such memo. Was prepared in presence of Mashirs, namely, Muhammad Ismail and Misri Khan and on return at police station F.I.R.
No,77 of 1998 under section 13-D of Arms Ordinance, 1965 was registered. On 7-11-1998 investigation of Crime No,184 of 1998 was transferred from Police Station Malir City to Police Station Khokhrapar for want of jurisdiction under the orders of S.S.P. Malir, where S.I.P. Jawed Sarwar, S.H.O. Of Police Station Khokhrapar received the police papers and custody of respondent Muhammad Babar Lodhi. On 9-11-1998 the said respondent was interrogated and during interrogation he volunteered to point out the place of murder of deceased. Consequently, S.I.P. Jawed Sarwar took out the said respondent/accused Babar Lodhi from police lock-up and went to the house of Roshan father of deceased, situated near Quadri Mosque, Liaquat Square Malir Extension, the said Roshan identified the said respondent Muhammad Babar Lodhi to be the person, who had taken away the deceased on the night falling between 18/19-10-1998, whereafter he did not return and his body was found in a taxi car on the following day, i,e, 19-10-1998. The S.I.P. Took the said Roshan and one Muhammad Roshan, Malik Saeed and the respondent Muhammad Babar Lodhi led them to House No,FS-12/9, allegedly belonging to absconding accused Anwar Raza and the said house was opened, whereafter the said respondent led them to the eastern room where they found blood marks and marks of bullet on the carpet lying ,on the floor and two empty shells were found lying on the carpet and during the search one blood-stained big knife was also secured having been concealed under the carpet. Two empties of .30 bore were also secured and sealed and carpet stained with blood, pieces of which were cut and sealed, knife so recovered was also sealed and such memo was prepared at 4-15 p.m. In presence of Muhammad Malik Saeed. Thereafter, the respondent Muhammad Babar Lodhi led the S.I.P. And the same witnesses to thy place where the taxi containing the dead body of deceased in dickey was parked and pointed out the same at 5-30 p.m. And such memo. Was prepared and the said respondent was consequently, arrested in Crime No,184 of 1998 and such memo. Of arrest was also prepared. On 12-11-1998, the said respondent Muhammad Babar Lodhi was produced before Judicial Magistrate Court No,XIV, Karachi-East, where he was put to identification test and P.W. Ahmed Ali, the first informant of Crime No,83 of 1998, registered under section 392/34, P.P.C., who identified him and on the same date the confessional statement of respondent Muhammad Babar Lodhi was also recorded. On 27-11-1998 at 4-00 p.m. Respondent Muhammad Babar Lodhi led the S.H.O. And pointed out the place of robbery of taxi-car in presence of P.W. Ahmed Ali and Constable Akhtar Hussain following which he was also formally arrested in Crime No,183 of 1998. On the basis of the disclosure of the names of Muzaffar Khanzada and Anwar Raza by the respondent, accused Babar Lodhi, efforts were made to apprehend them, but only Muzaffar Khanzada was arrested while co-accused Anwar Raza could not be apprehended, hence co-accused Babar Lodhi and Muzaffar Khanzada were challaned before the Military Court. However, after the transfer of the case to the Anti-Terrorism Court, statements of respondent/accused under section 342, Cr.P.C. Were recorded afresh, wherein they denied to have committed the alleged offence and the prosecution examined witnesses in support of their case.
4. After examining all the prosecution witnesses and hearing the counsel for the parties the trial Court acquitted the respondent-, hence this appeal.
5. We have heard Mr. Habib Ahmad, the learned Assistant Advocate-General, Sindh on behalf of the State and Mr. Mumtaz Ali Khan Deshmukh, the learned counsel appearing on behalf of the respondents and have minutely gone through the record and proceedings of the case.
6. The learned A.A.-G. Has frankly conceded that prosecution case rests on the following pieces of evidence:--
(1) Confessional statement, (2) last seen evidence of deceased with accused Muhammad Babar Lodhi, (3) pointing out of place of incident, by respondent Muhammad Babar Lodhi and securing of two empty shells of .30 bore pistol, securing blood-stained knife, securing of blood-stained piece of carpet, having bullet and bloodstained marks (4) identification of co-accused Muzaffar Khanzada by P.W. Muhammad Roshan at the trial and recovery of pistol from respondent Muhammad Babar Lodhi on 3-11-1998 by A.S.-I. Muhammad Hussain and (5) report of Ballistic Expert of matching two empty bullets recovered from the scene of offence and Chemical Examiner's report regarding blood on the knife so recovered from the alleged place of incident.
7. The learned counsel for the respondent has supported the trial Court's judgment and has said that the trial Court has fully and properly appreciated the evidence and there is no miscarriage of justice warranting interference with the judgment of acquittal by this Appellate Court. The learned A.A.-G. Has frankly conceded that so far the confession having not been recorded in accordance with law cannot be considered as a piece of evidence which could be used against the respondent/accused. He also conceded that the evidence of same is tainted one, therefore, the same also could not be used against the respondent/accused in the commission of crime. He also frankly admitted so far the recoveries from the alleged place of incident, the same having not been proved properly according to law by independent reliable evidence cannot be relied upon by the prosecution. So far the identification test of the respondent, A.A.-G. Has also not placed reliance upon the same on the ground that it was belated. However, he has frankly conceded that so far the offence under section 302/392/34, P.P.C. Same have not been proved by the prosecution against the respondent/accused beyond reasonable doubt, but has led stress that prosecution has been able to prove the offence of section 13-D of Arms Ordinance against the accused as it was recovered from the person of respondent Muhammad Babar Lodhi in presence of Mashirs which cannot be said to be unreliable, who are Police Mashirs and whose evidence cannot be disregarded. We have gone through the said piece of evidence of Mashirs. Admittedly, one T.T.
Pistol is said to have been used in the commission of the murder of deceased, but on that aspect the learned trial Court has disbelieved the version of recovery and the learned A.A.-G. Has also conceded to that aspect of the finding, besides it would be seen that the said alleged recovery was made from a thickly populated area of K.D.A. Township, but no independent Mashir was joined in the recovery. Besides that no entry of departure of the police Mashirs, namely A.S.-I. Muhammad Hussain and Constable Muhammad Ismail has not been produced in support of prosecution case to prove their presence at the time of recovery of pistol. Mere fact that no such suggestion was made to the said witness would not mean that the prosecution has discharged its burden of proving the prosecution case. The trial Court has placed reliance on the case-law also that in such circumstances where the private Mashirs could be obtained, failing which the evidence of the police witnesses could not be considered to be free from doubt.
8. We do not find any substance in the contentions of the learned A.A.-G. For the State.
Consequently, this appeal has no merits which is hereby dismissed, finding that no miscarriage of