2006 P Cr (PLP)

WAHID BUX BROHI, J.

Appellant Nazir Ahmed has been convicted by learned 2nd Additional Sessions Judge/Special Judge, S.T.A. Taluka Khanpur, at Shikarpur on 14-10-2002 for an offence punishable under section 13(d) of the Pakistan Arms Ordinance, and sentenced to five years' rigorous imprisonment and fine of Rs.50,000 or in default of payment to suffer R.I. for six months more.

2. The case of prosecution is that on 5-8-2000 complainant Fida Hussain S.H.O. Police Station Khanpur accompanied by his subordinate staff was on patrol when he arrested five accused persons from Faizo Laro. He secured a kalashnikov from appellant Nazir Ahmed, a hatchet from co-accused Ghulam Mustafa and Lathis/scissor from remaining three accused. The appellant had no permit or licence for the kalashnikov. After preparation of seizure memo. he returned to police station, where he lodged the F.I.R. and after usual investigation, challaned the case.

3. At the trial, a formal charge was framed against the appellant for an offence under section 13(d) of Arms Ordinance, to which he pleaded not `guilty and claimed trial. The prosecution examined two witnesses namely P.W.1 Fida Hussain the complainant/S.H.O. and P.W.2 A.S.-I. Iktidar Hussain Jatoi. The statement of appellant was recorded under section 342, Cr.P.C. wherein he denied the allegations of prosecution and pleaded that he has been falsely implicated as a result of long standing enmity between Jatoi and Mahar tribes. He examined D.W. Muhammad Sharif in defence. On the basis of evidence of prosecution witnesses, learned trial Court recorded the finding of conviction followed by the sentence as stated above.

4. We have heard Mr. Abdul Qadir Abro, learned counsel for appellant and Mr. Mushtaq Ahmed Kourejo learned counsel for State.

5. The foremost contention raised by learned counsel for the appellant is that the learned trial Court has wholly ignored the defence evidence and reliance has been placed solely on the evidence of prosecution witnesses, the finding is, therefore, totally defective. Learned counsel for the State could not controvert this position as the impugned judgment mentions that defence witness of Muhammad Sharif has been examined; but his evidence has neither been considered nor assessed. Learned counsel for appellant further added that point of enmity between Jatoi and Mahar tribes is admitted by P.Ws. and it could also be inferred from F.I.R. produced by the defence witness and this plea was also taken during cross-examination, therefore, the benefit of A doubt is to be extended to the appellant who is Mahar by caste and P.W.2 is Jatoi by caste. He also referred to the contradictions in the testimonies of P.Ws. and submitted that since no person from public has been joined as Mashir, the slightest doubt obtaining from the evidence of police witnesses is to be resolved in favour of the accused/appellant.

6. We have considered these arguments carefully. The contention that the defence evidence is totally ignored by the trial Court is fully borne by the record. In the reasons recorded by learned trial Court, there is no description of the defence evidence and as such it can safely be inferred that the defence evidence has neither been considered nor assessed, although it is a requirement of law that defence evidence is to be put in juxta-position with the testimony of prosecution witnesses and then a finding if to be rendered following the rules of evidence. Authorities Khalid Javed v. State 2003 SCMR 1419 and Ashiq Hussain v. State PLD 1994 SC 879 may be referred to in this context. There was no reason to ignore the testimony of defence witness particularly when the defence plea was clearly taken during the examination of prosecution witnesses to the effect that animosity between Jatoi and Mahar tribes was the animus for false implication of the appellant alleging in particularly that the active role was played by P.W.2 A.S.-I. Iktidar Hussain who was Jatoi by caste and appellant Nazir Ahmed was Mahar by caste.

7. It may be observed that mere existence of enmity between two tribes is not always sufficient for drawing inference against the testimony of a witness belonging to either to them and on that score alone the prosecution evidence cannot be discarded, but the fact remains that evidence of defence witness has been thrown out of consideration is, therefore, vitally hit by this drawback alone.

8. As regards the contradictions in evidence., learned counsel for the appellant drew our attention to the version of P.W.1 S.H.O. Fida Hussain that the mobile vehicle in which they were patrolling was driven by A.S.-I Ghulam Hussain and he was sitting with him in front seat, but P.W.2 Iktidar Hussain Jatoi stated that P.C. Abdul Majeed was driving the vehicle. The S.H.O. himself stated that that was Ghulam Hussain who laid hold on the appellant and captured him, but A.S.-I. Iktidar Hussain P.W.2 has stated that S.H.O. and police constable arrested the accused. As regards the main event of the incident, A.S.-I. Iktidar Hussain stated in his cross-examination that while they were going in the mobile the person who was holding kalashnikov gave a signal for stopping the vehicle and they stopped the vehicle on the right side of the road and arrested the accused at a distance of 5/6 paces away from the vehicle, but the S.H.O. himself gave a different story saying that all the five accused persons came from inspection path of Choi Shakh and when they stopped their vehicle on the left side of the road, the accused person ran away from 30/40 paces and only then they were apprehended. According to him, A.S.-I. Ghulam Hussain captured the appellant about 30/40 paces away from the vehicle. These versions are totally inconsistent with each other as regards the actual transaction and in such a situation the defence plea based no defence evidence and admissions in the cross-examination of the witnesses about the standing enmity could not be ignored without assigning any acceptable reason to reject the same.

9. It may not be out of place to mention that the defence witness Muhammad Sharif stated in categorical terms that the appellant was sitting with him in the Otaq of the village where A.S.-I. Iktidar P.W.2 called him saying that he was required by S.H.O. Fida Hussain and the appellant accompanied the said A.S.-I empty-handed and thereafter they came to know that the kalashnikov was foisted upon him. In cross-examination the defence witness disclosed that the appellant Nazir Ahmed was Nekmard of their village. Nothing otherwise, could be made out from cross-examination that he gave a totally false version. On a reasonable analogy, it can be said that if the police witnesses are treated as good as any witness then this assumption is equally applicable to defence witnesses unless by necessary implication from their evidence to give false evidence in support of the accused. In any case, there was no reason to eliminate the defence from the judgment.

10. Resultantly, in view of the material drawback that the defence evidence has been totally ignored despite a definite plea taken by the appellant right from the beginning, we would resolve the same in favour of the accused/appellant. It is noted that the appellant has already suffered a lot as he remained in detention for a period of more than two years.

11. In view of the foregoing discussion, the appeal is allowed and. the conviction and sentence are set aside. These are the reasons for the short order announced on 12-2-2004. H.B.T./N-74/K??????????????????????????????????????????????????????????????????????????????????? Appeal allowed.