1995 P Cr (PLP)

MUKHTAR AHMED JUNEJO, J.

Appellant Shamman Jatoi was tried by the Judge Special Court III, Suppression of Terrorist Activities, Karachi, in Special Case No.340 of 1991 which was outcome of F.I.R. No.788 of 1989 of Gulshan-e-Iqbal, Police Station., Karachi. According to tlle4iprosecution on 22-10-1989 a police party including Inspector, Sultan, Masood of C.I.A. headed by S.S.P., raided Bungalow No.C-63, Block 13/D-1; Gulshan-e-Iqbal, Karachi, in consequence of receipt of some information from one Kalandar Bux to the effect that a kidnapped person was in said Bungalow. The Bungalow was surrounded by police and inmates of the Bungalow were given warnings. In reply inmates of the Bungalow started firing, which was replied. After exchange of firing, the inmates of the Bungalow surrendered. They included appellant Shamman Jatoi, from, whose possession police recovered one U.S. made gun, two magazines of gun each containing 20 live bullets and one empty magazine. There were other recoveries also from other inmates of the Bungalow, about which a joint Mashirnama was prepared. Inspector Sultan Masood lodged a separate complaint against the appellant for the offence punishable under section 13-A of Arms Ordinance. Said complaint was registered at Gulshan-e -Iqbal Police Station under F.I.R. No.788 of 1989 on the same day. After due investigation, the appellant was challaned to stand trial before the said Court. At his trial the appellant pleaded not guilty to the charge Exh.1 containing the prosecution allegations. Prosecution examined complainant Sultan Masood Exh.7. and P.Ws. Khursheed Anwar Exh.2, Azizur Rehman Exh.3 and Abdul Rasheed Shah Exh.6. The appellant in his statement Exh.9 denied the prosecution allegations and stated that the gun in question was secured from father of Akbar Adil Shah and that it was a licensed one. The appellant did not examine himself on oath and examined in defence Akbar Adil Shah Exh.10. He stated in statement Exh.9 that he was victim of political enmity. At conclusion of the trial, the appellant was convicted for the offence' punishable under section 13-D of Arms Ordinance and was sentenced to suffer R.I. for five years. Hence this appeal. Mr. Ilyas Khan, learned counsel for the appellant argued that evidence of Mashir Khursheed Anwar was already disbelieved by this Court in Criminal Jail Appeal No.18 of 1993, decided on 15-12-1993 and that there was not an iota of evidence if the appellant had no licence for possessing the gun and the ammunition in question and that in his statement under section 342 of Cr.P.C. the appellant was not questioned if the U.S.-made' gun recovered from him was unlicensed. Mr. Ashiq Raza, Advocate for A.-G., Sindh for State conceded that there was no specific evidence to the effect that the gun and ammunition allegedly recovered from the appellant, were unlicensed. He also conceded that the appellant in his statement Exh.9, had not been questioned that he had no licence for the gun and the ammunition in question recovered from him. Present appellant was tried with three others by the same Court in Special Case No.337 of 1991 which pertains to the same incident. In said case two appellants were convicted for the offences punishable under section 307/34 of P.P.C. The appellant filed Criminal Appeal No.29 of 1993, against his conviction and sentence in Special Case No.337 of 1991, which was outcome of F.I.R. No.786 of 1989 of Police Station Gulshan-e-Iqbal. While deciding said appeal a D.B. of this Court in which one of us was party (Mukhtar Ahmed Junejo, J.), took following view:-- "Moreover, evidence of Inspector, Aziz Ahmed is unspecific and perfunctory. It is inconsistent with the evidence of Khursheed Anwar. It can hardly be believed that an encounter took place at 10 a.m. in a locality of Gulshan-e-Iqbal, but it is not supported by any independent witness of that area. Prosecution appears to have made an all-out effort to see that the recoveries are proved, without caring to establish the incident of attempt to commit murder, for which the appellants have been convicted. In respect of the incident, the prosecution should have examined people of the neighbourhood to support the allegation against the appellants that they attempted at lives of the members of the raiding party. This has not been done. The conviction is based on the perfunctory evidence of Inspector Aziz Ahmed coupled with evidence of P.W. Khursheed Anwar whose family is most of the time at Lahore and who otherwise too is a chance witness having his residence in PECHS." We have no reason to take a different view in respect of P.W. Khursheed. Besides the evidence of Khursheed, there is evidence of Inspector, Abdul Rasheed Shah Exh.6 and Inspector Sultan Masood Exh.7 about the raid of the said Bungalow on 22-10-1989 by police when the appellant and some others were caught while carrying unlicensed arms and ammunition. Surprisingly neither Abdul Rasheed Shah nor Sultan Masood has stated if the appellant was questioned about the licence or if the appellant said anything about not possessing the licence or the gun and the ammunition secured from his possession. This has been conceded to even by the counsel appearing on behalf of State. For convicting a person under section 13-D of Arms Ordinance, it is essential that the prosecution should prove that such person (from whom recovery of arms or ammunition took place) had no licence to possess the same. In the case of Muhammad Asghar v. The State 1978 PCr.LJ 729 there was nothing in the statements of recovery witnesses and Investigating Officer, to show that the gun allegedly recovered from the accused was unlicensed nor such question was put to the accused under section 342, Cr.P.C. and the conviction, and sentence was set aside. Similar position exists in the present case where prosecution did not bring on record the evidence that the appellant had no licence for the gun and the bullets recovered from him and no question about that was put to the appellant in his statement Exh.9. We, therefore, hold that the evidence on record was not sufficient for conviction of the appellant. Consequently we accept this appeal and set aside the conviction and sentence of the appellant and order his acquittal. He be released forthwith if not required in any other case. N.H.O./S-1124/K Appeal accepted.