1994 PLP 59 (MLD)

HAZIQUL KHAIRI, J: --The appellant Jamshed Ahmed alias Aamer is aggrieved with the judgment dated 8-6-1992 passed by the learned Judge Special Court No.II (S.T.A.), Karachi, whereby he -was convicted under section 13-D of Arms Ordinance and sentenced to suffer R.I. for five years. Briefly stated, the facts of the case are that on 26-10-1991 P.W.3 Iftikhar Ahmed, S.I.P., was posted at S.I.C. Centre and was on a patrol round alongwith other police officials including S.I. Rasheed Qureshi and S.I. Irfan Parker. While they were petrolling in Government Pick-up at the Sharifabad P.S. area for detection and search of accused persons he received spy information regarding expected arrival of accused persons from Gharibabad to Nazimabad in a Suzuki car and a motor-cycle for commission of some dangerous Wardat/offence. It was 2030 hours when in the presence of P.W.1 Khalid Jamil and P.W. 2 Syed Tariq Hussain Rizvi he detected a blue Suzuki Car No. E-4345 and a Motor-cycle No.KCA 6582 Honda 125 cc coming side by side. He, therefore, gave signal to the car and the motor-cycle to stop. Instead both accelerated their speed and the persons sitting there opened fire at police with intention to commit murder. The police party fired 3/4 shots at the Suzuki car's front wheel due to which the tyre of the car got flat and the car was stopped. Thereafter the car-riders namely, Tahrez Saleem alias Guddo son of Muhammad Yahya, accused Jamshed alias Aamer son of Nazir Hussain, Beroz alias Aabid son of Ashfaq Ahmed, Barkat Ali alias Aslam son of Noor Muhammad and Shahnawaz alias (paper torn) son of Ali Khan tried to make their escape good by leaving their car. Similarly the motor-cycle rider Muhammad Amin son of Khawaja Mohiuddin and Muhammad Fahim son of Muhammad Rafiq tried to make their escape good by leaving the motorcycle. The first named accused persons from the car were chased and the appellant Jamshed Ahmed was captured and from his person one Klashnikov with 20 round of (paper torn) was recovered. The other accused Tahrez Alam was also captured and from his person one sten gun with two magazine containing 20 rounds made in China were recovered. Both the accused persons were carrying arms without licence which despite demand they could not produce. Both the said accused were arrested and recovery was made of the fire-arms in the presence of Mashirs and P.W.1 Khalid Jamil and P.W.2 Syed Tariq Hussain. In his examination-in-chief P.W.3 Iftikhar Ahmed, S.I.P. made almost similar statement. However, in his cross-examination he first stated that the accused persons had fired indiscriminatory and the police party had also fired back, but subsequently he took a somersault and stated that the accused were firing in the air. Again he changed his version denying that accused Tahrez Alam had not fired at the police party. It was admitted by him that many persons of the locality had gathered at the place where the police had arrested the accused persons. Further Liaquatabad No.10 is a thickly populated area where the accused were arrested at 8-30 p.m. Both the prosecution witnesses from public, namely, P.W.1 Khalid Jameel and P.W.2 Syed Tariq Hussain Rizvi were declared hostile as they had deposed that they had not seen any weapon with the accused Tahrez Alain. However, in so far as the appellant is concerned, both have corroborated the statement of P.W.3 Iftikhar Ahmed S.I.P., to the effect that the appellant was armed with Klanishnikov. But there are a number of serious discrepancies found in the deposition of P.W.3 Iftikhar Ahmed, S.I.P. which by itself demolishes the entire case of the prosecution. From the very beginning the prosecution case appears to be false and concocted and creates great deal of doubt at every stage of it. The spy information as given by the complainant P.W.3 Iftikhar Ahmed, S.I.P. was that certain persons were expected to arrive from Gharibabad to Nazimabad in a Suzuki car along with a motor-cycle for the purpose of commission of some dangerous Wardat/offence. This spy information as narrated by the police to P.W.1 and P.W.2 was that two cars were expected to arrive for the aforesaid purpose. Interestingly neither any evidence as to the description of expected car(s) nor of the motor-cycle was given. Even if it was Suzuki car(s) whether it was Suzuki Bolan, Carry, Cultus, FX, Khayber, Mehran, Jeep or High roof etc. and what was its make, model, colour and number. The same was true of the motor-cycle. It is inconceivable that in a thickly populated area as Liaquatabad during the peak traffic hours at 8-30 p.m. with no description of the car(s) or the motor-cycle anyone will be able to identify them among hundreds of such cars and motor-cycles. Mr. Zubair Oureshi, learned AA.-G. conceded that at 8-30 p.m. there would be a mad rush of traffic at Liaquatabad No.10 and it would not have been possible for anyone to identify any car or motor-cycle without proper description. His submission, however, was that in so far as the appellant Jamshed is concerned, the prosecution has been able to establish possession of Klashnikov with ammunition with him and, therefore, he was rightly convicted by the learned Special Court. As we proceed further we find the least credible evidence before us. P.W.1 and P.W.2 have been declared as hostile because of their deposition favouring co-accused Tahrez. However a cursory glance at the deposition of P.W3 Iftikhar Ahmed, S.I.P. by itself would reveal how unreliable witness he is. In the F.I.R. he had stated that the police party had fired 3/4 shots but in cross-examination he stated that he does not remember as to hove many shots were fired. Again in cross-examination he retracts from his earlier stand and stated that the accused persons in the car fired in the air which means there was no exchange of fire between the police and them. If the prosecution story as set up were true, many persons would have been dead or seriously injured by exchange of firing as Liaquatabsd No.10 as per evidence is a very thickly populated area. It is also not understandable why after the tyre of the car got flat by firing and the car stopped, the motor-cycle riders instead of running for their life also stopped the motorcycle, got down and then ran away. For reasons stated -above, we allow the appeal and set aside the conviction and sentence of the appellant Jamshed Ahmed vide judgment dated 8-6-1992 passed by the learned Judge, Special Court No.II (S.TA.) Karachi and order that he may be released forthwith if not required in any other criminal case. N.H.Q./J-163/K Appeal allowed.