1992 PLP 2301 (MLD)

Date of hearing: 30th January, 1992: MUKHTAR AHMED JUNEJO, J.‑‑‑This order would dispose of Criminal Appeals Nos. 143/91, 149/91, 152/91, 157/91, 163/91 and 164/91, filed on behalf appellants Aamir Raza, Salimuddin alias Salloo, Ibrahim, Amjad Ali, Anis‑ur‑Rehman and Aamer Chaudhry respectively. Under separate but identical judgments dated 27‑5‑1991, each of the appellants was convicted under section 13‑D of Arms Ordinance. According to the prosecution on 8‑1‑1991 S. Inspector Malik Ahsan of C.I.A. Police, on receiving spy information about presence of some dacoits in Lyari area. Karachi, made such entry in the diary of F.I.R. No.474/90 of Police Station Khawaja Ajmer Nagri and raided with his staff at 5‑00 a.m. Room No.7 at first floor of Khushnama apartment, Ranchhore Line, Karachi. On breaking open outer door of said house with his staff and mashir Ghulam Haider, S.I.P. Malik Ahsan found there, appellants Aamir Raza, Salianuddin alias Salloo Ibrahim, Amjad Ali, Anisur Rahman, Ahmer Chaudhry and two others duly armed with unlicensed arms and ammunition. Said persons were caught and the arms and ammunition were secured from them for which they had no licence. S.I.P. Malik Ahsan secured one Klashnikov loaded with 15 cartridges from appellant Salimuddin, one Klashnikov loaded with 20 cartridges from appellant Aamir Raza alias Rufi, one Klashnikov loaded with 25 cartridges from appellant Anisur Rehman, one Klashnikov with 16 cartridges from Ahmer Chaudhry, one sten gun from appellant Amjad Ali and one sten gun from appellant Ibrahim. Co‑accused Nasir Javed was found in possession of a Repeater Gun and co‑accused Khurram was found in possession of a pistol loaded with six cartridges. S.I.P. Malik Ahsan took all the appellants and the two co‑accused to the Police Station Kala Kot where a case against them was lodged by him for offences punishable under sections 399 and 402 of P.P.C. Separate cases under Arms Ordinance were registered against‑ each of the appellants and after due investigation they were challaned and their cases were sent to the Special Judge, Suppression of Terrorist Activities for their trial. Learned trial Court examined Rustam Nawaz Exh.2, Ghulam Haider, 11 Exh:4, Malik Ahsan Exh.6, in each of the cases. In their statements under section 342, Cr.P.C., the appellants denied the prosecution allegations. Some defence witnesses were also examined. Under the identically worded judgments dated 27‑5‑1991, the trial Court convicted all the appellants and sentenced them to different terms of imprisonment. Hence these appeals. We have heard Mr. Muhammad Ibrahim Abbasi, Advocate for appellant Ibrahim,. Mr. IA. Hashmi, Advocate for appellant Salimuddin and Mr. Khawaja Naveed Ahmed, Advocate for remaining appellants. We have also heard Mr. Zubair Qureshi Advocate, for Advocate‑General, Sindh for State. Learned counsel appearing for the appellants argued that the appellants were acquitted in the main case registered against them for the offences punishable under sections 399 and 402 of P.P.C. and that the same witnesses could not be believed in the cases under the Arms Ordinance, after they were disbelieved in the main case under sections 399 and 402 of P.P.C. It was next argued that each of the appellants was not found in exclusive possession of the arms allegedly recovered from him. It was further argued that had the prosecution story been correct, the appellants allegedly carrying Klashnikovs etc. would not have been ready to surrender before S.I.P. Malik Ahsan and his staff, but they would have fired at police when police is not shown to be carrying matching weapons at the relevant time. It was also argued that police had not picked up mashirs of the locality before effecting the recovery. Mashir Ghulam Haider was said to be belonging to the Punjab. P.W. Ghulam Haider was said to have contradicted his Nikahnama by saying that he was married at Karachi. It was also argued that S.I.P. Malik Ahsan had not stated, as to which of the appellants was carrying which of the weapons. In support reliance was placed on the case of Amir Bux and another v. The State 1990 PCr.LJ 1765. In reply Mr. Muhammad Zubair Qureshi, Advocate appearing for State conceded with the submissions made on behalf of the appellants and frankly stated that the evidence on record was not sufficient for conviction of the appellants. There is force in the' contention raised on behalf of the appellants that acquittal of the appellants in the main case will have .direct effect on the credibility of the prosecution witnesses in the cases under the Arms Ordinance, as the same persons were the witnesses in the main case against the appellants. Each of the appellants was tried separately, but it appears that prosecution witnesses were examined in one case and copies of depositions of the witnesses were transferred in other files. In this way although each of the six appellants is shown to have been tried separately but in fact there was joint trial of the appellants. Unfortunately Malik Ahsan in his evidence could not pinpoint, as to, which of the appellants was carrying which of the weapons. In his cross -examination Malik Ahsan admitted that place of incident was thickly populated and many families resided there in flats of Khushnuma building and that many inhabitants of said building were watching the proceedings from their windows, yet he did not pick up any witness from Khushnuma Apartment. He admitted that the case property was recovered from the flat. Thus the appellants were not in physical possession of the case property. He also admitted that lights were off when he entered the flat in question. He also admitted that mashirnama of recovery was not in his handwriting. In his deposition Malik Ahsan stated that he kicked the door and entered into it. In his F.I.Rs. he said that he got the door opened. Mashir Ghulam Haider deposed that police started breaking the door and lock of the flat but somebody opened the door from inside. He stated in his cross‑examination that Malik Ahsan knew name of his father. Malik Ahsan in his cross‑examination said that he did not know P.W. Ghulam Haider or his father before the incident. P.W. Ghulam Haider could not produce his Identity Card. He admitted in his cross‑examination that he was living in Maripur which was 10 miles away from Khushnuma Apartment. The prosecution evidence as discussed above, appears to be self contradictory and unreliable. Learned counsel for the State rightly conceded that conviction cannot be based on such type of evidence. As a result of all this discussion we accept all these and set aside the conviction and sentence of the appellants and order release of the appellants forthwith of not required on any other case. These are reasons for our short order dated 30-1-1992 in each of these appeals. H.B.T./A-1231/K Appeals accepted.