1992 PLP 1500 (MLD)

Prosecution examined P.W.1 Muhammad Siddique Shahid Exh.3. He was Assistant Engineer in Pakistan Steel Mills. He stated that on the night of incident at 2 a.m. 'while he was returning from his duty, his car failed and he went to P.S. Steel Town for help and for a telephone call to his house. S.H.O. Khurshid. Zaman asked him to act as Mashir for recovery of weapon at the pointation of appellant who was in police custody and who had voluntarily agreed to lead police to his house for producing said weapon. He did not give the name of other Mashir. He also stated that appellant then led police and Mashirs to his flat on first floor in Marshalling Yard of Railway Colony and from a room produced a stengun lying in a box with 6 live cartridges. Appellant had no licence for the weapon and was therefore arrested. Mashirnama of arrest and recovery Exh.4 was prepared which he and cu‑Mashir signed. P.W. 2 Khurshid Zaman Exh. 5 was S.H.O. Steel Town P.S. on 24‑11‑1990. He stated that appellant, was in. police custody in Crime No.88/90 and during investigation, volunteered to produce a stengun from his house No.H‑9, Railway Colony Marshalling Yard. Muhammad Siddiq and Imtiaz were taken as Mashirs and appellant led them to his flat and from a room on the first floor produced a stengun with 6 live cartridges from a box. Mashirnama of arrest and seizure of weapon Exh.4 was prepared and he then registered F.I.R. Exh.6. This F.I.R. was got cancelled by him under orders of S.P. Bin Qasim and S.H.O. verbatim registered another F.I.R Exh.8. He denied a suggestion of false involvement of appellant in the case. P.W.3 Malik Allah Ditta Exh:9 was S.H.O. Bin Qasim on 24-11-1990 when he received copy of F.I.R. Exh.6, letter Exh.7 and Mashirnama Exh.4 from Steel Town P.S, and investigated the case. He interrogated accused and verified Mashirnama ExhA He also examined Mashirs Muhammad Siddique and Imtiaz and P.Ws. H.C. Ahmed Nawaz and H.C. Ghulam Jaffar who were members of police party. He sent the weapon to ballistic expert and produced the report as Exh.10. He challaned the accused in Court. Statement of accused under section 342 of Cr.P.C. was recorded as Exh.12 and he denied to have produced the unlicensed stengun as alleged. He also filed his statement in writing which was taken on record as Exh.14. He stated that his name‑ is Muhammad Punhal and never used Muhammad Khan nor as his alias. He produced school and other certificates in support thereof as Exhs:A‑1 to A‑

3. He further stated that he had affiliation with Jiya Sindh Party. On 11‑11‑1990 he and other office‑bearers of Jiya Sindh held a Press conference in which speaches were delivered against police and the administration. The Press conference so held was covered by various newspapers, copies whereof were filed as Annexures B‑1 to B‑

5. He also stated that Mashir Muhammad Siddique is an interested witness and had acted as Mashir against the appellant and others at the instance of Police Inspector Steel Mills. In proof thereof he filed Annexures C‑1 and C‑2 showing Mashir Muhammad Siddique as having acted as witness, in other cases. The appellant also examined himself on oath as Exh.15. He referred to certificates Annexures A‑1 to A‑3 produced alongwith his statement Exh.14 to show that his name is Muhammad Punhal and not Muhammad Punhal alias Khan Muhammad. He also stated that because of his affiliation with Jiya Sindh Party one of his companions was murdered by Kasim Soomro, S.H.O: New Town Police Station and for that he and other office‑bearers held a news conference showing the high handedness of police and such reports appeared in daily `Jasarat', `Zarab', `Awami Awaz' and 'Hilal‑e‑Pakistan'. He also stated that police was annoyed with him and he was arrested from the house of his brother Ghulam Hussain on the night between 15th and 16th November, 1990 in presence of witnesses Haider Zaman, Ghulam‑ Hussain, Anwar Ali, Afzal Khan and Pir All and others. He also stated that Mashir Muhammad Siddiq is on friendly terms with S.H.O. Khursheed Zaman and that Muhammad Siddiq also acted as Mashir in other cases and copies of his such statements were. C‑1 and C ‑21 The appellant examined D.W. Piral Exh.16, L.W. Haider Zaman Exh.17 and D.W. Ghulam Hussain Exh.18 and they all stated that the appellant was arrested from his house by police party on the night between 15th and 16th of November, 1990. It is also stated that these witnesses had enquired, from police. as to why they were taking away accused, on which the police replied that he was being taken away for interrogation. At that time the accused was barefooted and was not even wearing a shirt. A suggestion was given by A.P.P. to D.W. Ghulam Hussain that a kk. was recovered from applicant to which he replied in negative. The learned Advocate for the appellant has contested that the appellant never used Khan Muhammad as his alias, as is obvious, from school certificate and the marks sheet. The weapon allegedly recovered from the appellant had the inscription of word Khan Muhammad over its trigger and the weapon was foisted showing that appellant Muhammad Punhal also called himself as Khan Muhammad. It is also contended that though the arrest of appellant is shown on the night between 24th and 25th November, 1991 when he allegedly produced a stengun, yet the said weapon was not sent to ballistic expert till 13‑1‑1991 as is obvious from the report of Ballistic Expert Exh.10. He also contended that no private witness' was associated in recovery proceedings though many persons had collected at the scene of offence. In such circumstances, the recovery of the weapon and its delayed despatch to the ballistic expert lose the evidentiary value. In support of this contention he has placed reliance on Farooq Khan v. The State 1989 P Cr. L J 1520, Muhammad Amin v. The State 1990 P.Cr.LJ 84 and Muhammad Nisar and others v. The State and others 1990 P Cr. L J 99 (Shariat, Court AJ&K). It is lastly contended that the trial Court has neither considered the defence evidence nor discussed the same in judgment which is material illegality. Mr. Habibur Rashid, the learned counsel for the State has not supported the conviction. He has argued that neither the trial Court considered the defence evidence, nor discussed about the certificates produced by the appellant to disprove the allegation of prosecution that he was also known by alias Khan Muhammad. Learned State counsel has also pointed out that the weapon allegedly recovered from the appellant was kept in Malkhana and was not sent to the ballistic expert till 13‑1‑1991. We have heard the learned Advocates at length and gone through the evidence and the case‑law referred. The appellant alongwith his other companions addressed a press conference before the date of alleged recovery and highlighted excesses of police. Such statement appeared ‑in various newspapers, copies whereof are on the record. On account of such statement against police, the possibility that police harboured grudge against appellant could not be ruled out. The stengun allegedly recovered from appellant, had on its trigger a word "Khan Muhammad" inscribed. Nowhere it has come in evidence that appellant Muhammad Punhal was also known as alias Khan Muhammad. This part of prosecution case is not believable. The crime weapon i.e. the stengun clearly seems to have been foisted upon appellant. No witness from the locality was associated in the recovery proceedings and Mashir P.W. Muhammad Siddique seems to be a police witness as is proved from C‑1 and C‑2 produced by the appellant with his statement. This witness Muhammad Siddique denied to have acted as Mashir or witness in any other case but P.W. Khursheed Zaman, admitted in cross‑examination that Mashir Siddique was made Mashir in connected cases and other cases after this case. Thus, his testimony of P.W. Muhammad Siddique Mashir becomes highly doubtful and it lends no support to the prosecution case in the matter of recovery of alleged weapon at the pointation of accused. The report of the ballistic expert Exh.10 shows that parcel was received in the office of Assistant Inspector‑General of Police, Criminalistic Division, Karachi on 13‑1‑1991 in an unsealed condition. It was all along lying in Malkhana. No reason is shown for delay in sending the stengun to ballistic expert and that too in an unsealed condition. We, therefore, place no reliance on report of Ballistic Expert Exh.10. As many as three defence witnesses were examined by the appellant who had stated that appellant was arrested from the flat of his brother in the Railway Colony of Marshalling Yard but the trial Court has not discussed the defence evidence. Not even a word has been said with regard to such evidence. In view of all that has been discussed above the case against the appellant was not proved and the conviction and sentence cannot be sustained. We, therefore, while allowing this appeal, set aside the conviction and sentence and acquit the appellant. The appellant is directed to be released forthwith if not required in any other case. N.H.Q./M‑1607/K Appeal allowed.