2001 PLP 902 (MLD)

Muhammad Khalil Dogar for Appellant. Habib Ahmed, A.A.‑G. Sindh for the State. Date of hearing: 23rd October, 1997. SAWED SAEED ASHHAD, J.‑‑‑This appeal has been filed by the appellant/convict Abdul Mannan, who has been convicted by the Special Judge for Suppression of Terrorists Activities Court No.1, Karachi, under section 13‑D of the Arms Ordinance and sentenced to undergo R.I. for six months and fine of Rs.20,000 and in case of default in payment of fine to undergo further rigorous imprisonment for one year. The brief facts of the case are that a police party headed by S. I. Wajahat Hussain of Police Station Liaqatabad, raided an area near House No.2/524, Liaquatabad No.2, Karachi, on 18‑2‑1995 at 9.00 a.m. wherein the appellant was found present alongwith an unlicensed Klashnikov bearing No.15208987 alongwith five magazines loaded with 150 rounds and 200 live separate rounds. The appellant was arrested and the said unlicensed Klashnikov was secured under a mashimama, prepared on the spot. The appellant alongwith the said unlicensed arm was taken to Police Station, where F.I.R. was lodged by the said S.I. Wajahat Hussain. After completing investigation the accused was challaned in the Special Court No. 1 for Suppression of Terrorist Activities Karachi, which convicted him as aforestated. Feeling aggrieved and dissatisfied with his conviction and sentence the appellant has preferred the above appeal. We have heard arguments of Mr. Muhammad Khalil Dogar, learned counsel for the appellant and Mr. Habib Ahmad, learned A.A.G. for the State. Mr. Habib Ahmed, learned A.A.G. has very frankly and candidly stated that the trial Court in convicting the appellant had completely ignored the principle of criminal administration of justice and had relied upon the evidence and material in convicting the accused, which in normal and ordinary circumstances could not be held to be sufficient, satisfactory and reliable for proving the guilt of the appellant. Mr. Khalil Dogar, learned counsel for the appellant, has attacked the judgment of the trial Court on the grounds; firstly, that there is a delay of two and half hours in lodging the FA.R. when the distance between the place of incident and the police station is only one kilometer; secondly, that the prosecution neither summoned nor there is any evidence to show that they made any effort to summon two independent witnesses of the locality or to call two persons from amongst the persons present at the time of the raid; thirdly, that from perusal of the calendar of the witnesses it is clear that name of a private independent person as a witness is to be found but he was not examined in Court, thereby suggesting that if examined, he would not have supported the prosecution case as put forward in the trial Court; fourthly, that the trial Court did not give full and proper weight to the statement of the accused, recorded under section 342, Cr.P.C. as well as his evidence. He submitted that in view of the aforesaid grounds the prosecution has failed to prove the guilt of the accused beyond the slightest, shadow of doubt but the trial Court erred in holding that the evidence adduced by the prosecution was sufficient, satisfactory, reliable and trustworthy to prove guilt of the accused and to warrant his conviction. He further submitted that the prosecution's case was not supported by any private witness/mashir, which was an essential condition for proving the offence of the nature involved in this case in view of the principles enunciated by the Supreme Court in the cases of (1) Mushtaq Ahmed v. The State, reported in PLD 1996 SC 574 and (2) The State v. Bashir and others reported in PLD 1997 .CSC 408 to the effect that where recovery of the incriminating articles in itself is a crime then it is incumbent upon the prosecution to produce evidence witnesses/mashirs of the locality for proving the alleged recovery of the incriminating articles beyond any shadow of doubt. We have given our due consideration to the arguments advanced by the learned counsel for the appellant and also have gone through the material on record. The incident had taken place at about 7.00/9.00 a.m. and the prosecution cannot take the plea of not calling or joining two independent persons of the locality to witness the search and recovery of the aforesaid incriminating arms due to the non‑availability because of odd hours. Neither in the Mashirnama nor in the F.I.R. there is any explanation, whatsoever, as to why the police party did not summon or make any attempt to summon two independent persons of the locality to witness the aforesaid search of the appellant. From perusal of the charge‑sheet, it transpires that one independent/private person has been referred as a witness but he was not examined in the trial Court and we are inclined to agree with the learned defence counsel that he was given up, as he would not have supported the prosecution story if he had been examined in the trial Court and would have falsified and belied the prosecution case. From perusal of the judgment of the trial Court it is evident that it did not at all take into consideration the statement of the accused made under section 342, Cr.P.C. as well as his statement on oath. In his evidence in the trial Court, the appellant made a specific statement that he was a fruit vendor and was, as usual, selling fruits at the place of incident when the place was raided by the police party; he was arrested by them; was taken to the police station; and thereafter falsely implicated in this case. In view of the above defence, taken by the appellant, two different versions of the incident had been placed before the, trial Court. Both the versions were possible. In a criminal case when an accused raises a defence which appears to be plausible or likely to be due to the same extent as the prosecution's case, then the version of the defence is to be accepted and the prosecution version is to be discarded. In other words when the prosecution evidence adduced by the prosecution and the material placed by the accused is capable of two different versions of the incident or that the prosecution and the defence versions are both plausible then the version favouring the accused is to be accepted. For the above proposition reliance is placed on the case of (1) Wali Muhammad v. Nawab and others, reported in 1984 SCMR 914; (2) Muhammad Sultan v. Muhammad Aslam and another, reported in 1988 SCMR 857 and (3) Muhammad Jamil v. Ahmad Zaman Khan, reported in 1989 SCMR

44. Upon the above observations and discussion we are satisfied that the prosecution has failed to establish the guilt of the accused beyond any slightest shadow of doubt and the trial Court was not justified in convicting the appellant. By short order dated 23‑10‑1997 we had allowed the appeal and set aside the judgment of the trial Court and ordered release of the accused forthwith, if not required in any other case. These are the reasons for the said short order. MRS. MAJIDA RAZVI, J.‑‑‑I agree. H.B.T./A‑75/K Appeal allowed.