1992 PLP 984 (MLD)

QAISER AHMED HAMIDI, J: ‑‑Appellant Saifullah was tried by Mr. Nabi Shqr Junejo, Judge, Special Court No.I (Suppression of Terrorist Activities) Karachi, for the offence under section 13‑D of the Arms Ordinance, 1965, who found him guilty and vide judgment dated 27‑4‑1991 sentenced him to suffer R.I. for three years. By this appeal filed under section 7(1) of the Suppression of Terrorist Activities (Special Courts) Act, 1975, the appellant has challenged his conviction and sentence.

2. The facts of the prosecution case briefly are that on 31‑12‑1990 Fida Hussain, S.I.P. of S.I.C. (East) left for patrolling along with his subordinate staff in mobile Van No.335. At about 8‑45 p.m. the police party reached at Korangi No.6, when Fida Hussain, S.I.P. received secret information that one person who was standing near Tasveer Mahal Cinema, Karachi, was armed with unlicensed arm and ammunition. Acting on this information the police‑party rushed towards that spot and found the present appellant standing there under suspicious circumstances. On seeing the police party the appellant tried to slip away. He was, however, chased and captured and from his personal search one Kalashnikov and 10 live bullets were recovered. The appellant had no valid licence for the arm and ammunition which he was carrying and consequently he was taken into custody under a Mashirnama prepared in presence of Faqir Muhammad and Syed Arshad Moeen H.C. Fida Hussain, S.I.P. then sent a written report to Korangi P.S., where a case being Crime No. 745 of 1990 was registered against the appellant. After usual investigation the appellant was sent up to stand trial for the said offence.

3. The appellant pleaded not guilty to the charge and claimed a trial. At the trial the prosecution examined Fida Hussain, S.I.P. (P.W.1), Syed Arshad Moeen H.C. (P.W.2), and Muhammad Siddique, S.I.P. (P.W. 3).

4. The appellant met the charge with a denial. According to him he was arrested from his village alongwith 5 other persons and thereafter involved in this case falsely. The appellant examined himself (D.W.1). He also produced Akhtar Ali (D.W. 2) and Muhammad Arif (D.W. 3) in his defence.

5. On the assessment of evidence available on record the learned Judge found the appellant guilty and convicted him accordingly.

6. We have heard Mr. Sardar Muhammad Ishaque, learned counsel for the appellant and Mr. Habib‑ur‑Rasheed, learned counsel for the State. We have also gone through the record of this case carefully.

7. Mr. Sardar Muhammad Ishaque, learned counsel for the appellant has with great energy put before us reasons for disbelieving the two witnesses, namely, Fida Hussain, S.I.P. (P.W. 1) and Syed Arshad Moeen, H.C. (P.W. 2) and has endeavoured to show that their evidence as to the patrolling and recovery of Kalashnikov and, bullets from the possession of appellant is unreliable. He has further suggested that by deliberately withholding the evidence of Faqir Muhammad, the only independent witness who acted as Mashir of recovery,, the prosecution has in fact supported the contention raised on behalf of the appellant that no such patrolling as alleged was ever made.

8. The evidence of police officials cannot be discarded simply because they belong to police force. In Qasim and others v. The State, reported in PLD 1967 Kar. 233, it was held:‑ "A police officer is as good a witness as any other person. The standard of judging his evidence is the same on which the evidence of any other witness is judged." However, in a case of this nature where the fate of an accused person hinges upon the testimony of police officials alone, it is necessary to find out if there was any possibility of securing independent persons at that time. Judicial approach has to be cautious in dealing with such evidence.

9. The evidence which has come on record shows that the place where the appellant was allegedly captured at 9 p.m. is near the Cinema House, where admittedly number of persons were present. The record also shows that Faqir Muhammad who was picked up from that spot was made as Mashir in this case. He was, however, not examined by the prosecution, why, nobody knows. At least the learned counsel for the State has not been able to give slightest reason for this failure of the prosecution. The prosecution, therefore, must face the adverse inference arising from this omission.

10. The appreciation of oral evidence cannot be reduced to a set formulae and each case must be decided on the peculiar circumstances attending to it. The only fact that there are no material discrepancies in the evidence of both the police officials is not a sure guarantee of truth. In such cases confederacy and concoction beforehand may always be suspected.

11. Again the evidence adduced by the appellant was not given proper treatment by the trial Court. Muhammad Arif (D.W. 3) who resided in the same village where the appellant resides has stated on oath that the appellant was arrested from his village along with other persons and no weapon was, recovered from his possession. Akhtar Ali (D.W. 2), with whom the appellant worked has also supported the defence theory. There was no reason for Akhtar Ali (D.W. 2) to have deposed falsely in favour of the appellant.

12. On the evidence before us an alternate hypothesis inconsistent with the guilt of appellant is very much there and in the event of such a possibility of two versions the settled principle of law is that one favourable to the accused has got to be preferred.

13. Considering these facts, we have been led to the conclusion that the appellant's conviction is not warranted by the evidence produced against him in this case. Accordingly, we allow the appeal, acquitting him and setting aside his conviction and sentence. The appellant who is in custody be released forthwith, if not required in any other case.

14. By a short order, dated 9‑9‑1991, we had allowed this appeal and these are reasons for the said order. N.H.Q./S‑772/K Appeal allowed.