1996 SCMR 167 (PLP)

RAJA AFRASIAB KHAN .J.‑‑‑On 17‑10‑1991 at about 7‑00 p.m., an information was received by Muhammad Hanif S.I. Police Station City Sargodha disclosing that Iltaf Hussain, the appellant herein while armed. with kalashnikov was present outside his house in Model Town Sargodha ‑.and, in case, raid was conducted, he could be apprehended alongwith the weapon. The abovesaid Muhammad Hanif SI constituted a party consisting of Abdul Majid S.I., Muhammad Ramzan, Azhar Iqbal and Abdul Sattar A.S.Ts, Muhammad Afaq, Haji Ahmad and Muhammad Mumtaz Head Constables, Nazir Ahmad, Abdul Hakeem, Atta Muhammad and War Iqbal Constables, Atta Muhammad driver and Muhammad Anwar to raid the house of the accused. The raiding party reached the spot. The appellant was found to have been armed with a kalashnikov. On seeing the Police, he took position to attack but was overpowered and apprehended. The kalashnikov was loaded with 20 cartridges. He had no licence to keep the weapon. This being so, kalashnikov bearing No. 6656‑555‑237 was taken into possession alongwith 20 live cartridges and a case was registered against the appellant under Arms Ordinance, 1965. He was found guilty by the Police. Prosecution, in order to prove its case, produced Ghulam Yasin A.S.I. P.W.1, Muhammad Nazir Head Constable P.W.2, Muhammad Hanif S.I. P.W3 and Abdul Majid S.O. P.W.4. P.W.1, Ghulam Yasin A.S.I. registered the F.I.R. Exh.PA/1 on the basis of complaint, Exh.PA which was sent to him by SI Muhammad Hanif. Head Constable, Muhammad Nazir P.W.2 examined the weapon and concluded that it was a kalashnikov. The recovery of kalashnikov Exh.P‑1 and cartridges Exhs.P2/1‑20 was attested by Muhammad Anwar, a public witness, Muhammad Hanif S.I. P.W.3 and Abdul Majid S.I. P.W.4. The appellant denied the allegations in his statement under section 342, Cr.P.C. His plea was that kalashnikov Exh.P‑1 was recovered from one Manoo Barber. Some other weapons were also recovered from a person of Talagang. These persons were however, released with mala fide and. the kalashnikov was planted upon him. The appellant did not produce any evidence in defence. On 10‑2‑1992, learned Special Court, constituted under the Suppression of Terrorist Activities Act, 1975, Sargodha convicted and sentenced the appellant to seven years' R.I plus fine of Rs.50,000 or in default to suffer R.I. for one year under section 13 of the Arms Ordinance, 1965 on the basis of evidence of Police witnesses, Benefit of section 382‑B, Cr.P.C. was given to him. On appeal, a learned Division Bench of the Lahore High Court vide its judgment, dated 20th of July 1992 dismissed the appeal with a modification in the sentence that the appellant would suffer four years' R.I. instead of seven years' R.I. Similarly, the fine was reduced from Rs.50,000 to Rs.20,000 or in default to undergo six months' R.I. Leave to appeal was granted with the following order:‑‑ "Petitioner, named above has been convicted for offence under section 13 of the Arms ordinance, 1965, by the Special Judge Court No.II, Sargodha, set up under Suppression of Terrorist Activities Act, 1975 and sentenced, to R.I. for 7 years and fine of Rs.50,000 and in default R.I. for one year. High Court in appeal has maintained the conviction but reduced the sentence to R.I. for four years and fine of Rs.20,000 and in default R.I. for six months. It is submitted that evidence is not properly evaluated for the reason that it is very unlikely . that petitioner Would stand with unlicensed kalashnikov A and 20 live cartridges in front ul his housc waiting to be apprehended by Police. Second contention is that prosecution did not examine Muhammad Anwar, witness from public, in whose presence recovery was made but examined only officials from Police in support of recovery. In the circumstances evidence of Police officials without examining witness from ‑ locality is inconsistent with section 103, Cr.P.C. and is open to question. Leave is granted to examine evidence brought on the record in connection with contentions raised above. Resultantly as prayed sentence is suspended until further orders and meanwhile petitioner is allowed bail in the sum of Rs.20,000 with two sureties in the like amount to the satisfaction of the trial Court." Learned counsel submits that Muhammad Anwar was a witness from Public and as such, was relied upon to support the recovery but was not produced and no reasonable explanation could be given in this behalf. According to learned counsel, non‑production of the witness is fatal to the prosecution because it would create doubt in the veracity of the prosecution story. He argues that even the basis . of evidence already on record, no conviction could be recorded against the appellant as it was full of material contradictions. Learned State Counsel has tried to support the conviction and sentence by adopting the reasons given in the judgment under challenge. We have heard the learned counsel for the parties and have read the record. We have serious doubt about the prosecution version and as such, have been persuaded to interfere in the case because there was no credible account of the incident available on record. Muhammad Anwar was cited by the prosecution to establish its case but during trial, after recording evidence of Police officials, in routine, the prosecutor stated that Muhammad Anwar had been won over and as such, he was given up. We do not find any explanation whatsoever for dropping him from the list of witnesses in the given situation. He was undoubtedly, the most important witness who, according to prosecution, attested the recovery. A mere declaration of the prosecutor would not be enough to abandon such a witness. He, off the cuff, said that the witness was won over. There is nothing to show that the witness had been won over as he did not appear before the Court. If the witness, after appearance, did not support the prosecution, he could be declared hostile and subjected to cross examination by the prosecutor to find out the truth. This procedure was not adopted for the reasons best known to the prosecution. The prosecution was under duty to prove its case beyond any shadow of doubt on the basis of best possible evidence. The best evidence, in our view, was not produced by withholding Muhammad Anwar. An adverse inference could, therefore, be drawn that, in case, Muhammad Anwar was produced, he would not have supported the prosecution story under illustration (g) to Article 129 of the Qanun‑e‑Shahadat Order, 1984. The said Article along with the illustration is, reproduced below to highlight the importance of the point:‑‑ "

129. Court may presume existence of certain facts.‑‑The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case‑‑‑ Illustrations (a) (b) . (c) ...... (d) ...... (e) ...... (f) .. that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. (h) ...... (i) In absence of aforenoted witness, testimony of Muhammad Hanif S.I. P.W. 3 and Abdul Majid S.I. P.W.4 will pale into in significance. It is held to be deficient to convict the appellant keeping in view the principles of safe administration of criminal justice. The Police witnesses do not inspire , confidence. To begin with, they stated that the appellant was standing outside his house and was armed with kalashnikov. It is difficult to believe that the appellant would stand outside his residence without any purpose just to` display his unlicensed weapon at about 7‑00 p.m. in a busy and populated area of Sargodha City. The argument that public witnesses do not come forward to support such like recoveries because of risk to their life and liberty, nonetheless could not absolve the Police of their heavy responsibility to produce witnesses from public. There is no dearth of citizens of strong views and character who would come out to support such like cases provided they were taken into confidence, given due respect and were ensured that full protection would be given to them, in case, they aided the law‑enforcers to curb the crimes in the best interest of the society as a whole. There may be cases where public witnesses could not be produced because of their non‑availability due to odd hours of the night or the day or where the, recovery was effected from a deserted place or during the dead of night. The position in this case was just the reverse because, admittedly, recovery was effected from a populated area where several other people who saw the recovery of kalashnikov were present but no efforts were made to join them to witness the occurrence. We, accordingly, hold that evidence of Police witnesses who are, in a way, the complainant could not solely be accepted to be relied upon to convict the appellant, especially, when the aforesaid public witness was abandoned without any rhyme or reason. The possibility that the appellant was implicated with some ulterior motive could not be ruled out. For all these reasons, we have no alternative but to acquit the appellant by setting aside his conviction and sentence by giving him benefit of doubt. He is on bail and as such, shall be discharged from the liability of his bail bond. The appeal succeeds and is allowed. N.H.Q./1‑238/SC Appeal allowed.