1992 PLP 421 (MLD)

Appellant in person. Jalaluddin Baloch for A: G. for the State. Date of hearing: 10th September, 1991. QAISER AHMED HAMIDI, J.‑‑‑Appellant Afzal Haider was tried by Mr. Wajahat Hussain Siddiqui, Judge, Special Court No.II, Suppression of Terrorist Activities, Karachi, for the offence under section 5 of the Explosive Substances Act, 1908, who found him guilty for the said offence and vide judgment, dated 27‑2‑1990 sentenced him to suffer R.I. for five years. By this appeal filed under section 7 of the Supperssion of Terrorist Activities (Special Courts) Act, 1975, the appellant has challenged his conviction and sentence.

2. The prosecution story‑lay within a very narrow compass. On 16‑2‑1987 Khalid Pervaiz Awan A.S.I., Artillery Maidan Police Station was patrolling alongwith his subordinate staff in a police van. At 12‑30 p.m. the police party reached near Sarwan Hotel situated at Raja Ghazanfar Ali Road, when they noticed Wali Khan Chowkidar of a bank who was in injured condition chasing the present appellant alongwith others. The appellants wanted to board Car No.166‑748 which was‑already parked there, but he was overpowered by Khalid Pervaiz Awan A.S.I. who recovered one loaded pistol alongwith 8 bullets from his possession: On conducting further search one handgrenade was also recovered from his possession. The appellant was taken into custody and such inventory was prepared in presence of Mashirs Abdul Wahid and Taj Muhammad. On return to Police Station Khalid Pervaiz Awan A.S.I. lodged F.I.R. against the appellant at Artillery Maidan Police Station (Crime No.67 of 1987), which was recorded by Arshad Kamal Kayani, S.H.O. The hand grenade was sent to Bomb Disposal Squad, Karachi, where it was defused and was found to be of high explosive nature. After obtaining requisite sanction from Government of Sindh, Home Department, Karachi, the appellant was sent up to stand trial for the said offence.

3. Charge under section 5 of the Explosive Substances Act, 1908, was framed against the appellant to which he pleaded not guilty and wanted to be tried. At the trial the prosecution examined Abdul Wahid (P.W.1), Khalid Pervaiz Awan A.S.I. (P.W.2), Arshad Kamal Kayani S.H.O. (P.W.3), and Taj Muhammad (P.W.4). Pir Muhammad Khan Platoon Commander (C.W.1) was examined as Court‑witness.

4. The appellant met the charge with a denial professing innocence. He has alleged enmity with Arshad Kamal Kayani S.H.O., who was instrumental for implicating him falsely in this case. The appellant wanted to examine himself on oath under section 340(2), Cr.P.C., but no opportunity was provided to him. He has, however, examined Muhammad Sharif (D.W.1), Talib Hussain (D.W.2), Wilburn Bede (D.W.3), and Stephen Asif (D.W.4) in his defence.

5. On the assessment of evidence available on record, the learned Judge found the appellant guilty and convicted him accordingly.

6. The case of the prosecution mainly rests upon the evidence of recovery of one hand grenade from the possession of appellant which is sought to be proved through Khalid Pervaiz Awan A.S.I. (P.W.2), Abdul Wahid (P.W.l) and Taj Muhammad (P.W.4). The hand grenade was examined by Pir Muhammad Khan, Platoon Commander, Bomb Disposal Squad, Karachi, who appeared before the Court as (C.W.1). He has testified that the hand grenade contained explosive substance and it could be used by army during war.

7. Khalid Pervaiz Awan A.S.I. (P.W.2) is the star witness of the prosecution and his testimony seems to have weighed considerably with the trial Court in tripping the balance against the appellant. The evidence of this witness shows that on 16‑2‑1987 at about 12‑30 p.m. while he was patrolling near Sarawan Hotel, Saddar, Karachi, he heard gunshot reports and saw one person running with a pistol in his hand, who was being followed by the Bank ,Chowkidar and other persons. The said person who is the present appellant wanted to board a car which was already parked there. He was, however, caught and from his possession besides other articles one hand grenade was covered. Such Mashirnama was prepared in presence of Mashirs Abdul; Wahid and Taj Muhammad and the appellant was taken to Artillery Maidan Police Station where Khalid Pervaiz Awan, A.S.I. lodged F.I.R., which was recorded by Arshad Kamal Kayani S.H.O. His cross‑examination emphasised that he had deposed against the appellant under the influence of Arshad Kamal Kayani, S.H.O. (P.W.3), with whom the appellant claimed enmity over he hand of his cousin Mst. Zarina, and although the witness has admitted to have made a joint attempt alongwith Arshad Kamal Kayani, S.H.O. to abduct Mst. Zarina from Pakpattan in the year 1986, he has denied to have made false statement implicating the appellant in this case.

8. Abdul Wahid (P.W.1) who has acted as Mashir of recovery quite admittedly resided in Kemari. At his own showing he is a chance witness. He has testified about the circumstances leading to the apprehension of appellant and recovery of one hand grenade from his possession. Looking to the attitude of Arshad Kamal Kayani S.H.O. (P.W.3), and the following admissions made by Abdul Wahid Mashir (P.W.1) in his cross‑examination, I think it is wholly unsafe to rely upon his testimony: ‑‑ "I have appeared in 57 cases of police in different Courts and against different persons. I see Mashirnama Exh.3/1. It bears my signature. I have signed at Police Station Lxh.3 or Exh.3/1 and so Taj Muhammad. We were at police station where we also signed .... I am witness in so many cases where Mr. Kayani S.H.O. is Investigating Officer.... "

9. Taj Muhammad (P.W.4) who was co‑Mashir of the alleged recovery of the hand grenade is a taxi driver by profession. On 16‑2‑1987 at the relevant time he was getting his taxi car repaired when he heard commotion and saw the present appellant running away who was being chased by number of persons. He grappled with the appellant and caught hold of him and snatched pistol which he was carrying. This version is in complete variance to the versions made by Khalid Pervaiz Awan A.S.I. (P.W.2), and Abdul Wahid Mashir (P.W.1). Taj Muhammad (P.W.4) has also stated that the appellant had fired two shots at the time when he was arrested. This is again an improvement. His presence at the time of occurrence smacks of a crude attempt to make him an eye‑witness. It was in any case a very lucky coincidence, and perhaps one beyond belief, for him to be present at the scene of occurrence exactly at a time when the appellant was apprehended. Since he is Awan by caste like Khalid Pervaiz Awan A.S.I. (P.W.2) it does not require much of calculation how to multiply 2 by 2.

10. No doubt Taj Muhammad (P.W.4) who has acted as Mashir of recovery has no apparent reason to depose falsely against the appellant, but I this fact alone is not sufficient to hold him trustworthy. In the case of Nazir Muhammad alias Nazir Ahmed v. The State, reported in P L D 1974 Kar. 274, it was held that the mere fact. that the witness had no apparent reason to falsely implicate the accused does not render such evidence unassailable. It was further observed that there can be no general rule that the testimony of a witness having no apparent reason to falsely implicate the accused should be accepted at its face value. The truth or falsity of the statement of the witness largely depends upon the circumstances which provide the guideline. To accept f, the evidence without considering the circumstances would be totally inconsistent with the safe dispensation of justice. It is only on the scrutiny of the evidence with the assistance of the circumstances, it is possible to say with certainty that the evidence is immune from all taints and is worthy of belief.

11. The perusal of record shows that besides WAR Khan, Chowkidar of the Bank who was an injured person (wrongly mentioned as Muhammad Ali Khan by Khalid Pervaiz Awan A.S.I.), there were so many persons who had chased the appellant and were present when the alleged recoveries were made. None out of them was, however, examined and instead Abdul Wahid (P.W.1) who on the face of the record is a police tout and Taj Muhammad (P.W.4), a caste‑fellow of Khalid Pervaiz Awan A.S.I., were put in the witness‑box. It is almost a settled law that the prosecution must call all witnesses essential to the unfolding of the narrative on which the prosecution is based. For not C examining WAR Khan Chowkidar of the Bank the prosecution has to blame itself and it must face the adverse inference arising there from.

12. It is the case of the appellant that he was staying in Y.M.C.A. Hostel from where he checked out on 16‑2‑1988 at 11‑00 p.m. He has' examined Wilburn Bede (D.W.3), and Stephen Asif (D.W.4) to prove his defence. Out of these witnesses Stephen Asif (D.W.4) is the most important witness. He was receptionist in Y.M.C.A. Hostel and has proved the receipt (Exh.23/B) which shows that the, appellant' had checked out, from the hostel .on 16‑‑2‑1987 at 11 p.m. He has made it clear that the signatures of the appellant were obtained at 11 p.m. If this version, of the appellant which is supported by two responsible employees of an International Organisation is accepted to be true then it would destory the entire case of the prosecution for the simple reason that the person who was earlier arrested at 12‑30 p.m. could not have been present at Y.M.CA. Hostel after 10‑1/2 hours of his alleged arrest. This, circumstance if it is examined in juxtaposition to the defence theory about the enmity of appellant with Arshad Kama] Kayani S.H.O. (P:W3) over th6.hand of Mst. Zarina, sister of Talib Hussain (D:W.2), the, entire case of the prosecution becomes doubtful. At any rate the circumstances attending to this case which we have, discussed above have rendered the story of Khalid Pervaiz Awan A.S.I.. (P.W.2) such which it might not be safe to accept in order to base the conviction on it. It may be recalled that the appellant wanted to examine himself on oath to disprove the charge, but no opportunity was provided to him causing serious prejudice to his case.

13. On overall appraisement of the entire evidence in the case and on considering all the surrounding circumstances, we are of the, view that, the case against the appellant is doubtful in nature. Accordingly we extend benefit of H doubt to him and acquit him from the charge. The conviction recorded against the appellant is set aside. The appellant who is in custody be‑released forthwith, if not required in any other case.'

14. In the result the appeal is accepted. N.H.Q./A-1137/K Appeal accepted