1994 P Cr (PLP)

S. 13-D

Appreciation of evidence

Recovery evidence was contradictory

Accused being a disabled person could not be expected to go armed with kalashnikov through the jungle in the dead of night

Klashnikov allegedly recoverd from the possession of the accused had not been sent to the Ballistic Expert for opinion as to whether it was in fact a Klashnikov rifle or otherwise an automatic or semi-automatic weapon

Accused was acquitted in circumstances. 1992 P Cr. L J 1287 ref. Yasin Khan E. Babar for Appellant. Zawar Hussain Jafferi, AA.-G. for the State. Date of hearing: 17th August, 1993. SALAHUDDIN MIRZA, J: -- The appellant was tried by learned Special Judge for Suppression of Terrorist Activities Larkana in Special Case No.49/92 under section 13-D, Arms Ordinance vide Crime No.10/92 of Police Station Mouladad, District Jacobabad which was recorded on 2-2-1992 at 05-45 hours at the instance of S.H.O. Illahi Bux of the said ,police station. The prosecution case is that the said S.H.O. left the police station at 0030 hours on 2-2-1992 for patrolling and Nakabandi alongwith a police party. They travelled in a police vehicle and at 0200 hours they reached "Panj Pul" and there they concealed themselves and established Makabandi. At 0430 hours a man was seen approaching the place from the eastern side along the bank of the Shakh. As soon as he came over the bridge he was stopped by the police party but he tried to retrace his steps but was encircled and arrested. A Klashnikov rifle was found on his person. It was loaded with a magazine containing 25 bullets. He gave his name as Sobho, son of Saifal Jakhrani who is the present appellant. He had no licence for the rifle. He was arrested under section 13-A of the Arms Ordinance. Further, search of his person did not yield any material thing. Mashirnama of arrest and recovery of the Klashnikov rifle was prepared on the lights of the vehicle on which A.S.I. Waseeng Khan and H.C. Ghulam Rasool acted as Mashirs. The police party then returned to the police station where F.I.R. was recorded. In support of its case the prosecution has examined Mashir Waseeng Khan A.S.I. as P.W.1 and S.H.O. Illahi Bux who supported the prosecution case. In his 342, Cr.P.C. statement the appellant denied the truth of the prosecution case and stated that there was no question of his going armed with a Klashnikov rifle since he was a lame man and his one leg was not in proper working condition. He claimed that he was involved due to enmity between Buledis and Jakhranis and produced copy of F.I.R. in Crime No.52/79 under section 302/149, P.P.C. in which Noor Muhammad and 5 other Jakhranis were accused and who were his relatives. Learned Judge of the Special Court for Suppression of Terrorist Activities Larkana was, however, satisfied that the prosecution had established its case on the basis of the above evidence and he found the appellant guilty and sentenced him to undergo R.I. for four years and pay a fine of Rs3,000 or to undergo further R.I. for six months in default of payment of fine. He was, however, allowed benefit of section 382-B, Cr.P.C.

2. It is argued before us that there was no evidence on record to establish that the weapon allegedly recovered from the applicant was an automatic weapon or a Klashnikov rifle and, therefore, the conviction of the appellant was not proper. In this regard reliance was placed upon a judgment of this Court in the case of Muhammad Idrees v. State 1992 P Cr. L J 1287.

3. There are some contradictions in the evidence of the two witnesses. As admitted by P.W.1 Waseeng Khan A.S.I. it was stated in the Mashirnama Exh.3-A that he was sitting on the northern side but in the Court he had stated that he was sitting towards east or south. It is rather surprising that this witness also stated that he did not remember the names of villages through which the police party had passed before reaching the place of Nakabandi and arrest of the appellant. He also could not state how far away from the place of the arrest of the appellant was the police vehicle parked. He also stated that the appellant did not make any attempt to run away whereas P.W.2 Illahi Bux S.H.O. stated that the appellant had made an attempt to run but he was overpowered. In view of such nature of the evidence adduced by the prosecution in support of its case, we are of the view that the prosecution has not been able to establish its case beyond reasonable doubt. The appellant was also present before us during the hearing of the appeal and we note that he was very badly limping when he entered the Court room. It is difficult to expect such a disabled person to go armed with Klashnikov rifle through the jungle in the dead of night. Moreover, the Klashnikov, alleged to have been recovered from the possession of the appellant, was not sent to the ballistic expert for his expert opinion as to whether it was in fact a Klashnikov rifle or otherwise an automatic or semi?automatic weapon. To some extent, therefore, the judgment relied upon by the learned counsel of the appellant 1992 P Cr. L J 1287 is attracted. In the absence of any expert evidence it cannot be stated that the weapon recovered is of the kind alleged by the prosecution, namely, a semi-automatic weapon. Of course, the appellant would still be liable for being armed with an ordinary rifle without licence even if it were held that the weapon recovered from the appellant was not an automatic or semi-automatic weapon but in that case the offence would go beyond the purview of the schedule to the Suppression of Terrorist Activities (Special Courts) Act, 1975, which would render suspect the jurisdiction of the learned trial Court. In view of these facts we are inclined to accept the appeal and set aside the impugned judgment and sentence of the E appellant. The appellant may be released forthwith if not required in any other case. N.H.Q./S-1017/K??????????????????????????????????????????????????????????????????????????????? Appeal accepted.