Justice Munib Ahmed Khan
Date of hearing 2 5. 0 1. 2 0 0 7.
Date of Judgment . 0 1. 2 0 0 7.
Appellant : Abdul Raheem through Mr. RajaRiaz Ahmed, Advocate .
Respondent: The State through Mr. Habib Ahmed, Assistant Advocate General
MUNIB AHMED KHAN, J.- The punishment awarded to the appellant by Ist Additional Sessions Judge, Malir in F.I.R. No. 181 of 1999, recorded under section 13-D of the Arms Ordinance, has been challenged through this appeal.
According to F.I.R., on 03.08.1999 Inspector Mohammad Ramzan of FIA alongwith other police officials was on patrolling duty and when he reached Dawood Chowrangi, Landhi, he got spy information that one person has unlicensed arms and intending to sell these arms to terrorist. On receipt of this spy information, he proceeded alongwith police party, including PW Abdul Rahim and HC Ghulam Noor and reached near Ghulam Mohammad Dossal & Co at about 00.05 hours. On the signal of the informer, he located one person in suspicious condition, who was holding pink colour plastic bag and was waiting for conveyance. That man was apprehended, who appeared to be Abdul Raheem, his bag was searched, from which unlicensed arms, i.e. one Kalashnikove and 5 TT pistols loaded with magazines alongwith bullets were recovered. These ammunitions were sealed and case was registered under section 13-D read with section 7 of Anti Terrorism Act.
The appellant contested the charge whereafter the prosecution examined five witnesses including Judicial Magistrate, who produced statement of PW Abdul Rahim while the accused examined himself under section 342 Cr.P.C. and also examined two witnesses i.e. Mehar Ali and Ghulam Hussain. Learned trial court accepted the version of the prosecution and convicted the appellant to suffer RI for 7 years and fine of Rs.20,000/- in lieu thereof to suffer further RI for three months. The benefit of section 382-B Cr. P.C. was also extended to him.
The above conviction has been assailed by Mr. Raja Riaz Ahmed, learned counsel for the appellant on the ground that there is material contradiction between the statement of prosecution witnesses and that there is contradiction even in respect to the incriminating material, as according to one prosecution witnesses only five TT pistols were recovered whereas according to another prosecution witnesses one Kalashnikove was also recovered alongwith 5 TT pistols. He has further contended that the accused has falsely been involved, as the recovery has apparently been foisted upon him.
On the other hand, Mr. Habib Ahmed, learned Assistant Advocate General has frankly stated that the statement of PW-1 may not be relied upon, as he has not supported the recovery of Kalashnikove but other witnesses have supported the prosecution and have established that the case is made out, therefore, conviction may be upheld.
P.W-4 Ghulam Yasin was also examined. According to him, the accused was holding pink plastic bag and recovery according to mashirnama was effected from him. PW-5, the judicial magistrate has submitted statement of Abdul Rahim PW-2.
On the other hand, the accused has examined himself under section 340(2) Cr.P.C. and he was subjected to cross-examination. He has also adduced evidence of two defence witnesses. Both these defence witnesses deposed that accused was arrested from his house and have observed and seen as they are resident of that place. The cross-examination of defence witnesses does not support the prosecution.
After hearing learned counsel, we have gone through the evidence and have observed that HC Ghulam Noor is material witness and has also been made mashir. The case of the prosecution is that 5 TT pistols alongwith one Kalashnikove were recovered from the possession of the appellant and this factual position is recorded in the FIR and mashirnama. However, the mashir HC Ghulam Noor has admitted in court that he does not know if any Kalashnikove was recovered from the possession of the accused but 5 TT pistols only. This PW-1 has toppled the version of prosecution in respect to recovery, as the major item of recovery i.e. Kalashnikove has not been acknowledged by him in the recovery. Additionally, the said witness was not sure even about 5 TT pistol and plastic bag, while he was examined in court and he has deposed such factual position in
his cross-examination. Further the property was not produced in Court, at the time of recording of the evidence of this witness as such it was not shown to the witness to confirm whether this property was same or otherwise. Another witness Abdul Rahim is stated to be a private witness, who has supported the recovery of arms as per prosecution case but due to contrary acknowledgement by both the mashirs’ version of either of the witnesses suffers from doubt. The veracity of statement of pw Abdul Rahim has been also questioned and through cross-examination it has come on record that the said witness has also acted as witness in other cases of police and specially of Investigating Officer Mohammad Ramzan. The witness was also confronted with his statement before the Magistrate under section 164 Cr.P.c. in respect to plastic bag (thiely) with the accused or Rs.25/- from him. The said witness has also admitted that there were other private witnesses but they were not requested to act as mashirs. The evidence of PW Abdul Rahim has strongly been challenged by learned counsel for the appellant on the ground that he was stock witness of the police.
The Investigating Officer of this case, at the first instance, has denied that he knows PW Abdul Rahim but lateron he admitted that in three cases of one Gul Ali alias Gogo, one of the witness is Abdul Rahim but that Abdul Rahim and PW Abdul Rahim in this case are different. On the other hand witness Abdul Rahim has admitted in cross-examination that he has appeared as witness in one case before ATA relating to accused Gul Ali alias Gogo. This confronted factual position establishes that Abdul Rahim was not a true witness but an arranged one, hence he evidence cannot be relied upon.
We have also observed that prosecution has not given description of plastic bag (theily) and its size and strength, as strong bag is required to hold one Kalashnikove, 5 TT pistols as well as more than 100 bullets. Apparently plastic bag cannot hold weight of above ammunitions and specially while the accused was carrying them with intention to board a conveyance.
Keeping in view the above discrepancies in the evidence of prosecution witnesses as well as suspicious character of PW-2, we find that the case of the prosecution is not made out.
By a short order dated 25.01.2006 we have allowed the appeal and above are the reasons for the same.
J U D G E
J U D G E
Samie