ORDER SHEET
IN THE HIGH COURT OF SINDH AT KARACHI.
Criminal Appeal No. 153 of 2001.
PRESENT;-Mr. Justice Shabbir Ahmed.
Mr. Justice Sadiq Laghari
1. For order on M.A. 1808/2002.
2. For Regular hearing.
3.
7.11.2002
Syed Jawed Iqbal, Advocate for the Appellant.
Mr. Arshad Lodhi, AAG for the State.
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1. Granted.
2. The appellant was tried for the offence under Section 13-D of Arms Ordinance by Special Judge I, Karachi Central and was convicted by judgment dated 31.8.2001, convicting the appellant to suffer R1 for three years. The benefit of Section 382-B was also extended to the appellant.
The brief facts of the prosecution case as reflected in FIR are that Muhammad Aslam Khan of P.S. Gulbahar with police personals was in the area on 19.12.1998 when party faced en-counter, at about five hours near Kariata Hotel, Gujar Nala, Nazimabad No.2, with MQM terrorist, as a result thereof Muhammad Waseem received injury. Who along with appellant were apprehended on the spot with one Kalashnicove each without number. It was further alleged that other members of unlawful assembly Hafeez, Shuja, Sartaj, Malang, Hashim @ Hashoo, Iftikhar pappi @ Bholla, Shahid @ Pajar, Soni, Safdar, Kazim Raza, Qayyan, Tanveer @ Chacho, Javed @ Pinki, Aziz @ Dada, and Obaid @ K-2, decamped under the cover of firing. Appellant and Muhammad Wasim were arrested unlicensed arms were seized in presence of Sub Inspectors Muhammad Safdar and Muhammad Yousuf, in joint memo of arrest and recovery a separate FIRs in respect of police en-counter and 13-D of Arms Ordinance against the appellant and Wasim were recorded. The un-licensed Kalashnicove was sent to Ballistic Expert for examination.
After completion of investigation the appellant was sent up for trial. At the trial the appellant denied the charge.
The prosecution in support of its case examine (PWI) Choudhry Muhammad Aslam, who was heading the police party and had arrested the appellant, secured unlicensed Kalashnicove under memo of recovery (Ex.4), lodged the report (Ex.5) investigated the case and dispatched the Kalashnicove for report (Ex.6). Which is in position of P.W.1 Sarwar who was one of the member of party and acted as mashir of recovery.
The appellant met the prosecution case with bare denial with innocence plea and his involvement falsely by police . He has not examined himself under Section 340(2) Cr.P.C. but examined Shakila Begum, his own mother, in defence. She has stated that her son, the appellant, was present in the house when at about 4:00 a.m. he heard the fire and police came and took his son to police station. She subsequently came to know that police has challan him in a case.
On conclusion of the trial the learned trial Court after evaluating the prosecution and defence evidence recorded the findings of guilty against the appellant and convicted the appellant for the offence u/s 13-D.A Ordinance with sentence referred to herein above by judgment dated 31.8.2001, which is impugned through this appeal.
We have heard Mr. Syed Javed Iqbal, Advocate for the appellant and Mr. Arshad Lodhi, Assistant Advocate General for the State with their assistance we have reappraised the evidence produced by the prosecution and the defence, at the trial.
It may be stated that the appeal has arisen as result of appellant in an off shoot case under Section 13D, of the main case of encounter with police, wherein the appellant was allegedly apprehended on spot with unlicensed Kalshnikov i.e. Special Case No. 14/1999under Section 147, 148, 149, 186, 353, 324, PPC (Crime No. 386/1998) wherein the appellant with ten other co-accused namely Wasim, Tanveer, Nadir Shah, Nomi Butt, Muhammad Javed, Aziz Dada, Muhammad Hashim, Shahid were tried and acquitted by judgment dated 11.3.2002 with finding that the prosecution case seems to be doubtful. Muhammad Wasim who was arrested with appellant in similar circumstances has been acquitted for the charge u/s 13D Arms Ordinance by judgment dated 7.5.2002 by extending the benefit of doubt.
We are of the view that the prosecution has not been successful to prove the charge against the appellant beyond any shadow of doubt and the appellant is entitle for the acquittal
Dictum laid down by the Supreme Court of Pakistan in State V. Bashir and others, (PLD 1997 S.C. 408) wherein the Apex Court commented on joint mashirnama of recoveries in the similar circumstances in the following words:-
“It may be stated that simplicities the fact that there is a joint Mashirnama of recoveries of the incriminating articles, may not be fatal if the same identified each of the recovery with the accused concerned with all relevant particulars but if such a joint Mashirnama is vague and cannot identify with certainty the articles recovered from a particular accused, such a Mashirnama cannot be relied upon. In the instant case, Mashirnama Exh.5-A is a joint Mashirnama of arrest and recovery of the arms and ammunition. The Kalshnikovs were allegedly recovered from accusedRahimdad and Bashir with live cartridges. The Klashnikov was recovered from which of the accused. If no identity mark were placed by SIP Muhammad Refigure, in that event, the above contention would have force. This aspect has not been dilated upon by the Courts below and, therefore, it needs no further discussion.”
In present case joint recovery memo in respect of two KK one from the appellant and the other from Waseem has been produced as Ex.4. Neither the memo nor the evidence makes the two KKs clearly distinguishable. Thus they do not establish the guilt of the appellant beyond any shadow of doubt. It will be highly unsafe to sustain the verdict of conviction based on such evidence. Therefore, we acquit the appellant by extending the benefit of doubt. The appeal is allowed, the impugned Judgment is set aside. The appellant , if in custody be released forthwith unless required in any other case. JUDGE
JUDGE