1994 P Cr (PLP)

MAMOON KAZI, J. -- Appellant Adil Mehmood Jillani teas been convicted under section 13-D of the Arms Ordinance by the learned Special Judge, Special Court No.III (Suppression of Terrorist Activities), Karachi vide his judgment, dated 2-5-1992 and sentenced to undergo rigorous imprisonment for four years. He has now appealed against his conviction and the sentence.

2. The facts of the case, according to the F.I.R. lodged by P.W.4 Choudhary Muhammad Latif, S.H.O. Police Station Brigade, Karachi on 12-7-1991, are that when the said S.H.O. on the night between 11-7-1991 and 12-7-1991 at about 12-30 a.m. alongwith S.I. Anwar Hussain and other Police Officers was checking suspicious persons and vehicles he saw the appellant going on a Honda motor-cycle towards Mazar-e-Quaid-e-Azam. He signalled the appellant to stop but the appellant further accelerated his motor-cycle. The S.H.O., however, succeeded in surrounding the appellant with the help of other Police Officers who chased him on their motor-cycles. On his search the appellant was found to be in possession of one unlicensed sten gun without magazine which he had kept in a bag together with a .32 bore pistol which was loaded with five cartridges. The appellant was also found to be in possession of fourteen U.S.$ 100 bills which, when checked, were found to be counterfeit and fake. During the chase the appellant allegedly threw a hand-grenade at the witnesses, which however did not explode.

3. Thereafter, the appellant's motor-cycle was seized by the S.H.O. and handed over to Police Station Jauharabad as case property. A Mashirnama in respect of the arrest and recovery of the said fire-arms was also prepared and a case was registered against the appellant. Separate cases were registered against the appellant in respect of the recovery of the hand-grenade and the counterfeit U.S. dollars. The fire-arms recovered from the appellant were sent to the ballistic expert for his opinion and the appellant was subsequently challaned before the learned Special Court to stand his trial.

4. The appellant in his statement recorded under section 342, Cr.P.C. denied the above allegations and stated that the Police Officers had registered the case against the appellant simply for the sake of getting promotion. The appellant also got his statement recorded under section 340(2), Cr.P.C. before the learned trial Court wherein he alleged that he had been taken to Brigade Police Station from his house and subsequently he was involved in the present case. The appellant also examined two witnesses in his defence. D.W.2, Head Constable Zakaullah, was a formal witness who produced Roznamcha of Police Station Brigade Karachi containing entries dated 11-7-1991. D.W.3, Said Wali Shah, who was a Chowkidar in the area had seen the police taking away two persons from Block-4, Maymar Avenue, Gulshan-e-Iqbal, Karachi and had been subsequently told by the brother of the appellant that the appellant had also been taken away by the police thereafter.

5. The case of the prosecution is supported by the evidence of P.W.1 H.C. Bashir Ali, P.W.2 S.I. Anwar Hussain, P.W.3 A.S.I. S. Muhammad Shoaib and P.W.4 S.H.O. Choudhary Muhammad Latif Moula Dad Khan was examined as a Court-witness.

6. All the prosecution witnesses have fully supported its case. Although P.W.1, Bashir Ali, was a formal witness who had recorded the F.I.R. in the case, but all the other witnesses have claimed to be the eye witnesses of the said incident. The P.Ws. have also supported each other on the material aspects of the case. P.W.4 was the Investigating Officer of the case. The Court also examined Moula Dad Khan, the Ballistic Expert, as a Court-witness. He had received a sten gun, 7.65 m.m. pistol and ten cartridges, five each of .30 bore and 7.65 bore from the police. He found the sten gun in a working order.

7. So far as the above evidence is concerned, no doubt, the prosecution witnesses have supported each other on all material points, but all the witnesses are Police Officers and no independent witness has been examined by the prosecution. Although, the provisions of section 103 of the Criminal Procedure Code would apply only when a place is to be searched by a Police Officer and compliance with the said provisions is not possible when such officer has to make an arrest or recovery on the spot, but notwithstanding the same, when the prosecution witnesses are only the Police Officers, a very careful examination of their evidence is required to be made by the Court. The entire case against the appellant is based on the alleged recovery of fire-arms and ammunition from him. However, glaring discrepancies can be found in the evidence given by the Ballistic Expert and the other witnesses. The F.I.R. as well as the depositions of the prosecution witnesses show that the police only recovered a sten gun, a 32 bore pistol and five cartridges of the same bore from the possession of the appellant. The sten gun, according to the evidence of the Investigating Officer and the other Police Officers, was also without a magazine. But the evidence of the Ballistic-Expert shows that the pistol sent to him was not a .32 bore pistol but a 7.65 m.m. pistol and the cartridges were five each of 7.65 m.m. and .30 bore. The report of the Ballistic Expert further indicates that the sten gun sent to him also contained a magazine. The evidence of the prosecution witnesses and the Ballistic Expert, therefore, fails to corroborate each other. On the contrary, it make;. the entire evidence in respect of the alleged recoveries doubtful. If the police recovered A .32 bore pistol and five cartridges of the same number from the appellant, as alleged, it cannot be understood why the same were not sent to the Ballistic Expert for examination and instead a different set of cartridges and a pistol was sent to him. This is a material discrepancy in the evidence of the prosecution which renders the entire case against the appellant doubtful. 1t further leads one to believe that the police has in its possession various kinds of weapons which can be used by them for creating or fabricating evidence in any case. It, therefore, follows from the above circumstances, that the prosecution has failed to prove its case beyond any doubt. We, therefore, find it hard to sustain the conviction of the appellant upon such evidence.

8. In the result, the appeal is allowed and the appellant is acquitted of the offence for which he was convicted. The appellant shall be released B forthwith unless he is required in connection with any other case. N.H.Q./A-1423/K Appeal allowed.