1992 PLP 573 (MLD)

SYED HAIDER ALI PIRZADA, J.‑‑‑Appellant Mirza Masih son of Sardar Masih was‑ charged under section 13‑D of the Pakistan Arms Ordinance, 1965 and tried before the learned Presiding Officer, Special Court II. (Suppression of Terrorist Activities), Karachi, who has convicted and sentenced him to suffer R.I. for 3 years vide judgment, dated 18th June, 1990. The facts leading to the filing of the above appeal are that on or about 29th day of December, 1989 at about 2215 hours the appellant was found in suspicious condition by S.H.O. Muhammad Yasin Khan alongwith other staff who stopped him and on his personal search, recovered one T.T. pistol (.30 bore) having brown colour plastic handle, made in Pakistan with magazine loaded with one bullet and he could not produce valid licence for the same and thereby committed an offence under section 13‑D of Arms Ordinance, 1965. Sub‑Inspector Muhammad Yasin Khan, S.H.O. Gulbahar Police Station had secured the pistol from the possession of the accused in the presence of mashirs Muhammad Iqbal and Nawab. He prepared mashirnama Exh.6 and then brought the accused alongwith the pistol and bullet to the police station. He lodged the F.I.R. which he produced as Exh.8. He examined mashirs Muhammad Iqbal, Nawab and H.C. Wazir and then sent the pistol to expert for report which he received vide Exh.4. On completion of investigation, the accused/appellant was challaned before the Court. A formal charge was framed against the appellant to which he pleaded not guilty and claimed to be tried. At the trial, prosecution examined P.W.1 Mouladad Khan, Ballistic Expert in Forensic Science Laboratory, Karachi who received the sealed parcel containing 7.63 (.30 bore pistol) and five live cartridges of .30 bore for examination and report. He examined the pistol and made test fires of five live cartridges of .30 bore and found that the pistol in question was in working order and was falling under the category of automatic weapons with semi automatic systems of fire. He prepared the report which he produced as Exh.4. P.W.2 Muhammad Iqbal, a labourer has stated that he was returning on foot to his house situated in Jahangirabad from Bara Board where he had gone to see his friend. When he reached Jahangirabad Road, police party was standing on the road in a van. The police party consisted of three or four persons. There was no private person with police. Police requested him to accompany them as they have to search a person. Police took him to a distance of about 10 paces where accused/appellant present in Court was standing alone. Police searched the person of accused in his presence and secured one T.T. pistol from the fold of the shalwar of the accused. The pistol was loaded with one live cartridge. Accused/appellant, on interrogation, gave his name as Mirza Masih. Accused had no licence. Police secured the pistol in his presence and prepared mashirnama in his presence and one another mashir whom he did not know. He produced mashirnama as Exh.6. The witness in his cross‑examination denied the suggestion that he was witness in F.I.R. Nos. 484/88 and 139/89 of police station Gulbahar. He denied the suggestion, that he was acting as mashir on behalf of the police and stated that police may have written his name but he was not a witness. He also denied the suggestion that he was shown police witness in F.I.R. Nos. 133/89, 358/89, 564/89, 21/90, 179/89, 13/90, 179/89, 605/89, 206/90, 91/89, 180/89, 37/89, 50/89, 316/88 and 247/85 of police station Gulbahar. He admitted in cross-examination that he is being tried in Anti‑Corruption Court for recovery of BHATTA. He denied the suggestion that he knows Constable Akbar. He also denied that the accused was involved in this case due to enmity with Akbar. He further denied that the accused was picked from his house at mid‑night time and pistol was foisted on him. P.W.3 Muhammad Yasin Khan is Sub‑Inspector. He stated that on 29‑12‑1989 he was S.H.O. Gulbahar Police Station and he was patrolling in his area with H.C. Muhammad Nazir, P.C. Ghulam Muhammad, H.C. Sarwar and others. While they were patrolling Jahangirabad area in a police van, they received a spy information that one person would come from the river side being armed with T.T. pistol. He picked up mashirs Iqbal and Nawab who accompanied him to the road side where they waited for the accused. At about 10‑15 p.m. accused/appellant was seen coming from the river side. They stopped him when he came near. On, interrogation, he disclosed his name as Mirza Masih. His personal search was conducted in presence of mashirs Nawab and lqbal. He secured one T.T. pistol loaded with one bullet from the fold of the shalwar of the accused loaded. The accused/ appellant possessed no licence for the same. He secured the pistol and bullet in presence of the two mashirs and prepared mashirnama. He arrested the accused and brought him to the police station alongwith pistol and bullet where he lodged the F.I.R. which he produced as Exh.8. He denied the suggestion that he neither mentioned the name of police party in the F.I.R. who were with him at the time of patrolling nor did he mention the name of H.C. Wazir alongwith the place of Wardat in F.I.R. He admitted in cross‑examination that he knows Constable Akbar. He denied the suggestion that he foisted the case on accused on saying of Constable Akbar as the accused/appellant had fought with him. He further goes to deny that he knows mashir Iqbal before this incident who is not a witness in any other police case registered by him. It was in fact another Iqbal who had been a witness in other police cases and had the same parentage as that of the present mashir lqbal who is present in Court. Both the mashirs with identical names have different addresses. He also denied the suggestion that he along with mashirs Nawab, Iqbal and police party picked up accused Mirror Masih from his house at about mid‑night time and foisted this case on him in the presence of his parents Zafar Masih and Shaukat. He further denied the suggestion that he foisted this case on accused on the saying of Police Constable Akbar. He admitted in his cross‑examination that it was a thickly populated area from where the accused was arrested and no mashir was picked up from that area although there were many shops and hotels near the place of Wardat. After close of the prosecution case, the statement of the appellant was recorded under section 342, Cr.P.C. in which he denied the allegations made against him. He has further stated that P.Ws. are Inspector and also the touts of police. After taking into consideration, the evidence produced by the prosecution and accused/appellant, the learned Presiding Officer, Special Court has been pleased to convict the appellant as described above and the present appeal has been filed against the above judgment of conviction. We have heard Mr. Ch. Muhammad Sadiq, learned counsel appearing for the appellant, Mr. Shaukat H. Zubedi, learned Assistant Advocate‑General Sindh appearing for the State and have gone through the R & P of the case. Mr. Ch. Muhammad Sadiq, learned counsel for the appellant raised the following contentions: ‑‑ (1) That 'the recovery has not been proved in the presence of any respectable person of the locality. In support of this contention, reliance is placed on an unreported judgment reported in Criminal Appeal No.48 of 1990. (2) The learned Presiding Officer has not put any question to accused/appellant in his statement recorded under section 342, Cr.P.C. In support of this contention, reliance is placed on the case of Pirano v. The State reported in 1972 PCr.LJ

165. Mr. Zubedi has not supported the conviction recorded by the learned Presiding Officer. He has submitted that in the mashirnama of recovery, police has mentioned the recovery of one pistol and one bullet from the appellant whereas the police sent one revolver with five live cartridges to the Ballistic Expert (P.W.1 Mouladad Khan). We have considered the contentions of the learned counsel. No doubt it is clear from the statement of the accused/appellant recorded under section 342, Cr.P.C. that no question about the production of licence was put to him . The decision cited by Mr. Ch. Muhammad Sadiq supports his case. In the case; of Pirano, it was held that the appellant was not asked to produce the licence and no question was put to him at the trial under section 342, Cr.P.C. Hence the eviction would not be sustainable. It was further held that after all it is for the prosecution to establish their case, which cannot be said to have been done. The dictum laid down in the above case is applicable to the instant case. Regarding contention No.l that the recovery was not made in the presence of respectable persons of the locality, it has come on record that' P.W.2 Muhammad Iqbal is a stock witness. It has sufficiently been established on the record that he acted as a mashir/witness in a number of F.I.Rs. It has also come on record that he is being tried in Anti‑Corruption Court for recovering BHATTA. It is pertinent to note that the Investigating Officer, C P.W.3 gave very evasive reply about Muhammad Iqbal. In Yameen Kumhar v The State PLD 1990 Karachi 275 it was held on page 284 as follows:‑‑‑ "Where the case of the prosecution depends entirely on recovery of arms and ammunition care should be taken by Court to scrutinise the statement of the witness for recovery with caution and the prosecution should also take care to produce independent and reliable. witnesses. The evidence of 10 itself cannot be sufficient for the purposes of conviction. His solitary statement in such circumstances when he had procured the witnesses to act as mashir becomes very doubtful and cannot be relied upon." This decision was followed in Criminal Application No.48/90 Liaquat Ali v. The State decided on 17‑6‑1990. The principle of law laid down in the above cases is applicable to the facts of the instant case. This mode of witnessing the recovery will be improper. P.W.2 is the solitary witness for recovery and in the facts and circumstances of the case, the testimony of P.W.2 is tainted with incredibility and cannot be believed. In this view of the matter, we set aside the conviction and sentence and allow the appeal. We had decided the above appeal on 20‑11‑1990 by a short order passed on conclusion of arguments and above are the reasons for the same. N.H.Q./M‑1494/K Appeal accepted.