2000 P Cr (PLP)

ABDUL HAMEED DOGAR, J.

By a common judgment we propose to dispose of Special Anti-Terrorism Appeals Nos.24, 30, 31, 32 and Confirmation Case No. (sic) of 1999 as they arise out of one and the same judgment.

2. Appellants Fazal Rahim, Sarwar Khan, Tahir alias Nasir and Altaf Ahmed have challenged judgment,, dated 25-5-1999 of Mr. Qamaruddin Bohra, Judge, Anti-Terrorism Court No.VI, Karachi whereby he convicted appellant Fazal Rahim and sentenced him to death under section 302, P.P.C. read with section 7(i)(a) of Anti-Terrorism Act, 1997 (hereinafter referred to as the "Act"). He was also ordered to pay Rs.2,00,000 which if realised, was directed to be paid as compensation under section 544-A; Cr.P.C. to the legal heirs of deceased P.C. Ghayasuddin. He was further convicted separately under section 13(d) of Arms Ordinance and was sentenced to undergo R.I. for 7 years with fine of Rs.10,000 and in case of default to further suffer S.I. for 6 months. At the same time appellants Sarwar Khan, Altaf Ahmed alias Shoaib Somi and Muhammad Tahir alias Nasir were convicted under section 13(d) of Arms Ordinance and sentenced to suffer R.I. for 7 years with fine of Rs.10,W0 and in case of default to further suffer S.I. for 6 months more. All of them were extended benefit of section 382-B, Cr.P.C. Reference for confirmation of death sentence of appellant Fazal Rahim under section 374, Cr.P.C. was also forwarded by the trial Court.

3. Briefly the facts of the prosecution case are that on 1-12-1998 complainant H.C. Murtaza Kamal was on patrol duty alongwith P.C. Laiq Ahmed and P.C. Ghayasuddin within the jurisdiction of Police Station Azizabad and at about 3..45 p.m. when they reached opposite United Bakery, situated in Block No.3, Federal "B" Area, Karachi, a car bearing registration No.F-7498, said to have been robbed from the area of Khawaja Ajmer Nagri, appeared, in which 4 suspects were seen seated. The police party gave signal to stop upon which the culprits started firing upon them with intention to kill and a bullet hit P.C. Ghayasuddin, who got injured. The police party retaliated in defence and appellant Fazal Rahim was apprehended alongwith revolver bearing No.SAO-5849 alongwith 5 rounds. On inquiry, he disclosed the names of his companions as appellants Altaf, Sarwar and Nasir, who succeeded in decamping. On fire reports another police party also reached there. Injured P.C. Ghayasuddin was removed to Usmania Memorial Hospital., where he succumbed to injuries. Thereafter, he was removed to Abbasi Shaheed Hospital for autopsy. Appellant Fazal Rahim was brought at police station where F.I.R. was lodged under sections 324, 302, 353 and 34, P.P.C. Another F.I.R. under section 13(d) of Arms Ordinance was also lodged against him. On 10-12-1998 at about 00-15 hours appellants Sarwar, Altaf and Muhammad Tahir were arrested from Bhangoria Goth, Azizabad and from the possession of appellant Sarwar one revolver of .30 bore with a live cartridges, from the possession of appellant Altaf Ahmed one pistol of .30 bore with 3 live cartridges and from the possession of appellant Muhammad Tahir one pistol of .30 bore with 2 live cartridges were. recovered. None of them could produce licences, as such cases under Arms Ordinance were registered against them. On completion of investigation they were sent up before the Military Court.

4. A charge was framed against the appellants by the Military Court, to which they pleaded not guilty and claimed trial.

5. At trial the prosecution examined P. W.1 A.S. -1. Murtaza Kamal son of Muhammad Abbas Khan, P.W.2 H.C. Laiq Ahmed son of Raees Ahmed, P.W.3 Syed Sajid Ali son of Syed Hamid Ali, P.W.4 A.S.-I. Abdul Mateen son of Sher Khan, P.W.5 S.-I Idrees Ahmed son of Muneeb Ahmed and P.W.6 S.-I. Syed Ghazanfar Ali Kazmi son of Syed Sarwar Ali Kazmi and then the prosecution closed its side.

6. All the appellants examined themselves on oath and also examined 5 defence witnesses, namely, Afsari Begum, Abdul Rahim, Nadeem, Nasira Begum and Bashir Ahmed. Thereafter, the case was transferred to the abovementioned Court, where statements under section 342, Cr.P.C. were recorded. They did not examine themselves on oath afresh, but relied upon their statements recorded before the trial Court and also relied upon the defence witnesses examined there. However, appellant Muhammad Tahir examined D.W. Arifa Moosa only.

7. Appellants Fazal Rahim, Muhammad Tahir and Altaf Ahmed in their respective statements before the Military Court had raised the pleas that they had gone to Karimabad for taking Lassi and when reached just near the Lassi shop, there appeared 5 persons in civil dress, who inquired from them as to where they were going. One of them took out his pistol, due to which they got scared and started running towards different directions and while they were running, they heard fire shot and presumed that they are being shot. Appellant Fazal Rahim further stated that he had hidden himself in a nearby Nala, from where he was caught hold of and thereafter, the abovementioned persons disclosed that they are police officials. Thereafter, they took him to police station and maltreated him. The pistol was foisted against him by the police. Due to the torture he received serious injuries and was removed to hospital for medical treatment. He had appeared in supplementary .examination of Matric on 1-12-1998 and revolver and ammunition were not recovered from him but were foisted against him: Appellant Altaf Ahmed has further stated in his statement that he succeeded in running away to his house and then narrated the above facts to his parents. He stayed at his shop for about 6/7 days and it was on 10-12-1998 that he was apprehended by the police from his house and was severely maltreated. Similarly appellant Muhammad Tahir disclosed in his statement further that he also managed to escape and went to his house and narrated the facts to his mother and sister. His mother took him to the house of Bashir Ahmed where he remained for 6/7 days. It was on 10-12-1998 .that he was arrested from there and was taken to police station and was tortured. Appellant Fazal Rahim examined his father Abdul Rahim and Nadeem Ahmed, his employee, in his defence. Appellant Altaf Ahmed examined his aunt Nasira Begum in his defence. Appellant Muhammad Tahir examined Bashir Ahmed and his sister Arifa Moosa in his defence. The learned trial Court framed the following points for determination:-- (1) Whether P.C. No.3607 Ghyasuddin died unnatural death due to fire shot? (2) Whether the above named accused persons on 1-12-1998 at about 3-45 p.m. opposite United Bakery, situated in Block 3 F.B. Area were seated in snatched car and they were given signal by police party to stop the car but they started firing upon the police party in order to deter them from discharging their lawful duty? (3) Whether the above named accused persons on the above date, time and place fired at the police with common intention caused death to kill them and by their firing they caused death of P.C. No.3609 Ghayasuddin? (4) Whether accused No. l Fazal Rahim apprehended at the spot opposite United Bakery Block 3, F.B. Area with unlicensed revolver alongwith 5 rounds? (5) Whether the accused persons namely, Sarwar, Altaf and Muhammad Tahir were apprehended on 10-12-1998 at about 00-15 hours and from accused Sarwar one revolver of .32 bore loaded 3 cartridges without licence, from accused Altaf one pistol of .30 bore having No. 11220 alongwith three cartridges from accused Muhammad Tahir one pistol of .30 bore alongwith 2 lives cartridges were recovered?' (6) What offence, if any, the accused persons have committed? .

9. On the assessment of evidence and hearing the learned counsel for the parties, the appellants were found guilty and were convicted and sentenced as stated above.

10. We have heard Mr. Shaukat H. Zubedi on behalf of appellant Fazal Rahim, Mr. Sardar Muhammad Ishaque and Mrs. Mahjabeen Farzana on behalf of appellants Sarwar Khan, Tahir alias Nasir and Altaf Ahmed and Mr. Syed Jalil Ahmed Hashmi, Assistant Advocate-General, on behalf of the State at length and have gone through the impugned judgment and record and proceedings of the case in detail. 11: Mr. Shaukat H. Zubedi argued that the story set up by the complainant in the F.I.R. has been deliberately abandoned by him in the statement recorded at trial, according to which he has set up a new version of the incident. According to him the complainant in the F.I.R. has categorically mentioned that on 1-12-1998 at about 3-45 p.m. he alongwith P.C. Ghayasuddin and H.C. Laiq Ahmed were patrolling and when they reached in the street opposite United Bakery, Federal "B" Area, Karachi they noticed a white coloured Honda Civic Car, bearing registration No.F-7498, said to have been robbed from the jurisdiction of Police Station Khawaja Ajmer Nagri, with 4 persons sitting inside. The complainant party signalled to stop the said car, upon which the appellants fired at them with intention to kill and one bullet hit P.C. Ghayasuddin; who got injured. The complainant party retaliated in defence and succeeded in catching hold of appellant Fazal Rahim, who was having one revolver, bearing No.SAO-5849, Pakistan made, with 5 bullets inside, whereas remaining 3 culprits succeeded in cunning away. As against this the complainant, in his deposition has given a contrary version and has stated that 4 culprits, who were coming in a Honda Civic Car, got down from the same on signal to stop and started firing on police. In return they also fired in air. After firing the culprits started running in the streets. P.C. Ghayasuddin, who was standing ahead of them, caught hold of one of them namely, Fazal Rahim (appellant), who took out his pistol from right side of the Dub and fired at P.C. Ghayasuddin. Since complainant and P.C. Laiq were standing nearby, therefore, they hurriedly reached there and caught hold of appellant Fazal Rahim, whereas 3 other culprits while firing managed to escape in the streets. The learned counsel next contended that the complainant in F.I.R. as well as in his statement at trial, has not mentioned about the presence of P.C. Mateen at the time of .incident, as such his statement as eye-witness carries no value in the eye of law and should not be considered for the purpose of conviction. The learned Counsel further contended that as per F. I. R. the revolver, recovered from the possession of appellant Fazal Rahim, contained 5 bullets, whereas according to the statement of complainant at trial, irrespective of 5 live bullets, one empty case was also found available in the revolver. According to F.I.R. no empty was recovered from the place of Wardat whereas complainant in his deposition has said that one empty was lying available at the place of incident. Mr. Shaukat H. Zubedi further contended that the empty recovered from the place of Wardat and the empty case and revolver were sent to Ballistic Expert and as per his report the empty recovered from the Wardat was not fired from the said revolver, which has created serious doubts in the case. He further argued that the medical evidence negates the ocular version. As per eye-witness account the deceased caught hold of appellant Fazal Rahim from the front side and he was shot at that moment, but medical evidence does not show the presence of blackening and charring around the wound on the deceased. He submitted that the investigation in the case has been conducted dishonestly. Mashirnama of recovery has been prepared subsequently, wherein it was for the first time that reference to one empty case was made. According to him on the same evidence appellant has been convicted whereas co-accused were acquitted from the charges of 302/34, P.P.C., the benefit of which may also be extended in favour of the appellant. He lastly submitted that the conviction of appellant under section 13(d) of Arms Ordinance is also not maintainable because no question about the possession of valid licence of the said revolver and ammunitions at the time of arrest has been asked from the appellant, being the only incriminating piece of evidence as such the conviction and sentence is liable to be set aside. In support of his contentions he has relied upon Pirano v. The State reported in 1972 PCr.LJ 165, Sajjad Ahmed and another v. The State reported in 1992 SCMR 408 ad Munawar Hussain v. The State reported in 1991 SCMR 1601.

12. Messrs Sardar Muhammad Ishaque and Mahjabeen Farzana appearing on behalf of appellants Sarwar Khan, Tahir alias Nasir and Altaf Ahmed mainly attacked the judgment on the grounds that most important incriminating piece of evidence has not been put to the appellants in their statements under section 342, Cr.P.C. According to them the Investigating Officer at the time of arrest of the appellant has failed to inquire about the licences of the arms and ammunitions recovered from the appellants which fact is apparent from the perusal of F.I.Rs. Nos.282, 283 and 284 of 1998. Similarly the appellants were not asked such mandatory question in their statements under section 342, Cr.P.C., the same, therefore, can be taken into consideration against them. Failure to do so has vitiated the entire trial and the appellants are entitled to acquittal.

13. Adverting to the main appeal of appellant Fazal Rahim, it would be appropriate to discuss in detail the evidence adduced at trial.

14. Complainant, A.S.-I. Murtaza Kamal has stated in the F.I.R that on 1-12-1998 at about 3-45 p.m. he alongwith P.C. Ghayasuddin and H.C. Laiq Ahmed were patrolling and when they reached in the street opposite United Bakery, Federal "B" Area, Karachi, they noticed a white coloured Honda Civic Car, bearing registration No.F-7498, said to have been robbed from the jurisdiction of Police Station Khawaja Ajmer Nagri, with 4 persons sitting inside. The complainant party signalled to stop the said car, upon which the appellants fired at them with intention to kill and one bullet hit P.C. Ghayasuddin, who got injured. The complainant party retaliated in defence and succeeded in catching hold of appellant Fazal Rahim, who was having one revolver, bearing No.SAO-5849, Pakistan made, with 5 bullets inside, whereas remaining 3 culprits succeeded in running away. It would be pertinent to note here that the complainant stated in the F.I.R. that there was one empty cartridge of bullet lying at the scene of occurrence. A contrary version has been furnished by the complainant at trial. According to him at the time of incident they saw 4 culprits coming in Honda Car, who on signal to stop, dismounted and started firing upon them. They in retaliation fired in air and thereafter the culprits started running in the streets. P.C. Ghayasuddin standing ahead of them caught hold of one of the culprits, namely. appellant Fazal Rahim, who took out his pistol from right side of the Dub and fired at him. Complainant and P.C. Laiq hurriedly reached there and caught hold of the appellant whereas the remaining culprits managed to decamp while firing. He has further disclosed that a .32 bore revolver was recovered from appellant Fazal Rahim having 5 live bullets and one empty case inside. Irrespective of the above one empty case, too, was recovered from the place of incident. On interrogation appellant Fazal Rahim disclosed the names of his accomplices as appellants Altaf, Sarwar and Tahir alias Nasir. The complainant in cross-examination stated that he, in his sections 161 and 164, Cr.P.C. statements as well as in the F.I.R., had stated that the appellants got down from . the car and started firing at them, which was confirmed having not said so. Similarly the fact that he had not stated in section 161, CI.P.C. statement and in the F.I.R. that P.C. Ghayasuddin caught hold of appellant No.1, `who then fired at him was also got confirmed. He further went on saying that the F.I.R. after recording was read over to him. He also admitted that when F.I.R. was read over to him he did not tell S.-I. Ghazanfar Ali, about the catching hold of appellant Fazal Rahim by P.C. Ghayasuddin. He further admitted that he did not disclose to the recording officer of the F.I.R. nor that of section 161, Cr.P.C. statement that the appellant took out revolver from his right Dub and fired at P.C. Ghayasuddin.

15. P.C. Laiq Ahmed, another eye-witness, deposed that on the day of incident at about 15-45 hours he alongwith P.C. Ghayasuddin, H.C. Murtaza Kamal and H.C. Abdul Mateen were patrolling in the area of Karimabad, there appeared a white Honda Civic Car No.7498 from United Bakery side. P.C. Ghayasuddin signalled the car to stop in which 4 persons were sitting. He recognized the appellants present in Court and said that they were sitting inside the car at the relevant time. The appellants hurriedly stopped the car,' opened the door and got down and started firing upon them, upon Which he and complainant H.C. Murtaza Kamal fired in air and due to rush of people and traffic they did not made aimed fire. P.C. Ghayasuddin tried to catch hold of appellant Fazal Rahim; who was holding revolver in his right hand, but he immediately fired at P.C. Ghayasuddin, who sustained injuries and later on expired. Since he and H.C. Murtaza Kamal were standing nearby, therefore, they succeeded in catching hold of appellant Fazal Rahim, H.C. Abdul Mateen, who was 'at a distance of 100 paces, also joined with them. The abovementioned revolver alongwith 5 bullets and one empty case was recovered from appellant Fazal Rahim. Another empty case was recovered from the place of incident. The said empty was also seized. Apprehended appellant disclosed his name as Fazal Rahim, whereas disclosed the names of his companions as Sarwar, Altaf and Tahir alias Nasir, who had succeeded in running away in the streets. On fire shots, S.H.O./S.-I. Ghazanfar Ali Kazmi reached at the site and evacuated P.C. Ghayasuddin to hospital.

16. P.W. H.C. Abdul Mateen, promoted as A.S.-I. deposed that on the fateful day he, H.C. Murtaza Kamal (now A.S.-I.), P.C. Laiq (now H.C.) and P.C. Ghayasuddin were on patrolling duty in Karimabad when at about 14-30 hours H.C. Murtaza Kamal received a message that a white colour car No.7498 Honda Civic had been snatched by some unidentified persons from the area of Police Station Khawaja Ajmer Nagri. At that time he was sitting about 100 yards away from his other colleagues. He heard the fire shots and immediately looked towards his colleagues and saw four persons firing upon them, he rushed there and saw P.C. Ghayasuddin was holding one of them and the remaining three were firing and trying to escape. He recognized all the four persons present in Court to be the same culprits. He saw appellant Fazal Rahim firing on P.C. Ghayasuddin, who sustained serious injuries on his right arm and chest and was later on apprehended by H.C. Murtaza Kamal and P.C. Laiq. The rest succeeded in decamping away. Appellant Fazal Rahim disclosed the name of his companions as Sarwar, Altaf and Tahir alias Nasir. One .32 bore revolver alongwith 5 live bullets and one empty case was recovered from him. Another empty case of T.T. Pistol was also recovered from the site of incident. Meanwhile S.H.O./S.-I. Ghazanfar Ali Kazmi alongwith his staff arrived at the Wardat and removed P.C. Ghayasuddin to hospital. It would be pertinent to mention here that the name of this witness does not transpire in the F.I.R. as such his eye-witness account of the incident would be scrutinised with great caution. The contention that he was set up later on as an .eye-witness cannot be ruled out of consideration.

17. S.-I. Ghazanfar Ali Kazmi, Investigating Officer, has stated before the trial Court that on 1st December, 1998 he alongwith A.S.-I. Nasir (now S.-L), A.S.-I. Idrees (now S.-I.) and two other police constables were on patrolling duty in Block No.3, Federal "B" Area, when at about 3-45 p.m. they heard fire shots .from the near vicinity. He saw people running in different directions and rushed towards there and found P. C. Ghayasuddin lying in injured condition whereas H.C. Mateen, H.C. Murtaza Kamal and P.C. Laiq were holding appellant Fazal Rahim. One Honda Civic registration No.F-7489 was parked there. One .32 bore revolver was also recovered from appellant Fazal Rahim. He directed Murtaza Kamal to complete formalities at the Wardat whereas removed P.C. Ghayasuddin to hospital. The F.I.R. of main case under section 13(d) of Arms Ordinance was registered by H.C. Murtaza Kamal which was handed over to him for further investigation. He had observed few minor injuries on the person of appellant Faial Rahim as such he was taken to Abbasi Shaheed Hospital for check up and certificate and was got examined by Dr. Sajid.

18. On medical evidence Dr. Syed Sajid Ali deposed that on 12th December, '1998 he was M.L.O. in Abbasi Shaheed Hospital and at about 4-15 p.m. S.-I. Ghazanfar All Kazmi brought dead body of P.C. Ghayasuddin for post-mortem examination. He conducted post-mortem examination and on external examination he found one entry and one exit wound. The entry wound was 5 c.m., whereas the exit wound was .75 c.-M. There was no sign of blackening around the entry wound.

19. From the above discussion not only the victim of incident is established, but the. death of P.C. Ghayasuddin has been proved to be the result of fire-arm injuries. The fact as to who caused such injuries to the deceased is shrouded in mystery, the benefit of which can be availed by the appellant also, who according to the case is not said to be the sole culprit who fired at deceased, but the firing was said to have been made by the four culprits sitting inside the car. Eye-witness account furnished- by complainant! Murtaza Kamal, P.C. Laiq and P.C. Mateen that it was appellant Fazal' Rahim who fired at P.C. Ghayasuddin after being apprehended by him is apparently afterthought. In our opinion the above are the reasons to award him lesser punishment. Accordingly we reduce his sentence from death to imprisonment for life.

20. With the above modification, the appeal in respect of appellant Fazal Rahim, is dismissed.

21. Reverting to the conviction and sentence recorded against- appellant Fazal Rahim under section 13(d) of Arms Ordinance, the same in our opinion, do not inspire confidence and are not maintainable in law, the reasons whereof are that the basic and mandatory requirements of registration of case under Arms Ordinance have not been properly followed in this case. It would be pertinent to refer that the Investigating Officer, who arrested appellant Fazal Rahim and recovered .30 bore revolver alongwith 5 live bullets did not state at trial that he in fact inquired from the appellant about the licence of the above arms and ammunitions. Irrespective of this F.I.R No.2'76 of 1998, lodged by H.C. Murtaza Kamal, does not show that any such inquiries with regard to possessing licence were made from the appellant at the time of recovery. Above all. no question has been specifically put to the appellant in his statement under section 342, Cr.P.C. by the trial Court that he was asked to produce licence for the arms and ammunition recovered from him and that he failed to produce the same, as such the above case was lodged against him. By now it is well-settled principle that if any important incriminating piece of evidence is not put to the accused under section 342, Cr.P.C. statement, same cannot be taken into consideration against him. Accordingly while allowing the appeal of appellant Fazal Rahim under section 13(d) of Arms Ordinance, we set aside his conviction and . sentence and acquit him.

22. Adverting to. the. appeals .of appellants Sarwar Khan, Tahir alias Nasir and Altaf Ahmed under section 13(d) of Arms Ordinance, it would be appropriate to give its background briefly. The case of prosecution against all of them is that in the night in between 9th and 10th December, 1999, S.I.P. Syed Chazanfar Ali Kazmi of Police Station Brigade while patrolling in the area of Bhangoria Town Phatak alongwith his subordinate staff received spy information at about 12 O'clock in the night about presence of accomplices of appellant Fazal Rahim in bushes located on the bank of Naddi. It was at about 00-15 hours, he alongwith D.S.P. Ghulam Shabani, S.-I. Naeem Oujjax, S.-I. Shariq, A.S.-I. Idrees, A.S.-I. Nasir Naseer, H.C. Mateen, H.C. Murtaza Kamal, P.C. Laiq and others raided the said bushes and apprehended the appellants. From appellant Sarwar one revolver alongwith 3 live cartridges were recovered, one .30 bore pistol alongwith 3 live rounds were recovered from appellant Altaf and one .30 bore pistol, without number, alongwith 2 live rounds were recovered from Tahir alias Nasir and Mashirnama of arrest and recoveries was prepared which was signed by H. C. 14 lateen and H.C. Murtaza Ali. The Investigating Officer asked about the licences of the said weapon and ammunitions, but the appellants failed to produce licence, as such they were arrested and cases, viz. F.I.Rs. Nos.282, 283 and 284 of 1998 were registered against them under section 13(d) of Arms Ordinance.

23. Messrs Sardar Muhammad Ishaq and Mrs. Mahjabeen Farzana, 1darned Counsel for appellants Sarwar. Altaf and Nasir mainly argued that the conviction and sentence recorded against them is not sustainable in law as the mandatory questions with regard to asking about, the valid licences for the arms and ammunitions recovered from them and their failure to produce the same were not at all put to them in their respective statements recorded under section 342, Cr.P.C. by the trial Court. Accordingly by not putting the above incriminating pieces of evidence against the appellants in their statements under section 342, Cr.P.C. they cannot be convicted.

24. On the other side, the learned A.A.-G. could not controvert the above contentions of the learned Counsel for the appellants.

25. We have gone through the record and proceedings of the case and the memo. of appeals as well as the impugned judgment.

26. Statements under section 342, Cr.P.C. of appellants, on the face of it, show that no such questions with regard to possessing valid licences and appellants' failure to produce the same were at all asked by the trial Court. In consequence of failure to comply with the above mandatory provisions of D law, we are of the considered opinion that conviction and sentence awarded to them under section 13(d) of Arms Ordinance is not maintainable. A Division Bench of this Court in the case of Perana v. The State reported in 1972 PCr.LJ -165, had allowed appeal and acquitted the appellant similarly on the same facts and grounds. The Honourable Supreme Court in the case of Saiiad Ahmed and another v The State reported in 1992 SCMR 408 has held as under:-- "We also hold the view that the prosecution has failed to prove its case against the appellants under section 7(1)(c) of the Surrender of Illicit Arms Ordinance. 1991, inasmuch as the prosecution did not at all lead any evidence to show that the weapons of offence were kept without having any licence for them and so no questions were put to the appellants in their statements under section 342, Cr.P.C. that they were holding the weapons in question without licences. We hold that no conviction and sentence could be recorded against the appellants under this charge as well in view, of this state of affairs."

27. The Honourable Supreme Court! the case of Munawar Hussain v. The State reported in 1996 SCMR 1601 (sic) has observed that as a result of omission to put incriminating piece of evidence against the petitioner while recording his statement under section 342, Cr.P.C. at the trial, the same cannot be considered to be a piece of evidence against him and in such circumstances conviction cannot be maintained.

28. Accordingly we allow the Appeals Nos.24, 30 and 32 of 1999 filed by appellants Sarwar Khan, Tahir alias Nasir and Altaf Ahmed. They are acquitted. Their conviction and sentence are set aside. These are the reasons of our short order, dated 15-9-1999. N.H.Q./S-253/K Order accordingly.