Cr. Jail Revision No.49 of 2006
14-6-2006
Mr. Tajjamul Hussain, Advocate for Applicant who is present in custody.
Mr. Aga Zaafar, AAG for State
AMIR HANI MUSLIM, J.- Through this criminal revision the applicant has impugned the judgment passed by the trial Court convicting him under Section 13-D Arms Ordinance 1965 to suffer R.I. for 1 year, which judgment of the trial court was appealed against and in Cr. Appeal No.16/2005 and was affirmed by the 1st ADJ Malir Karachi. Both these judgments have been impugned through this Criminal Revision.
It has been contended by the learned counsel for the applicant that the FIR was registered on 21-2-2003 at 1815 hours by ASI Amanullah Marwat of Anti Narcotics Team Malir town Karachi against the applicant U/S 13-D of the arms ordinance and in the last two lines the complainant ASI Amanullah Marwat had unauthorizedly assigned the investigation to ASI Nadeem ur Rehman one of the member of the same narcotic team. He submits that the entire investigation was conducted under the dictation of the complainant and was dishonest. In this regard according to the learned counsel for the applicant the investigation can only be entrusted by the Incharge and not by a member of any Anti Narcotics team as has been done in the instant case. He submits that the complainant, who in the FIR has stated that the investigation shall be conducted by ASI Nadeem ur Rehman, had committed incurable defect, which was fatal to the prosecution. His next contention was that even the ASI Nadeem ur Rehman was not competent to under take investigation, as he was himself the member of the Anti Narcotic Team, which had arrested the Applicant and registered the case. In support of his contention he has relied upon the case of Iftikhar @ Dani v. State, reported in PLD 1995 Lahore 606. His next contention was that no private witness was examined by the prosecution through the Applicant was alleged to have been arrested from Prince Ali Bhai School on 21-2-2003 at 1815 hours. He submits that it has come on record that the place from where the Applicant was arrested, had a patrol pump and a bus stop and was a public place, but the investigating authority avoided to cite any private witness as mushir of recovery. His next submission was that non-production of private witness without valid reason by the prosecution was fatal as such a violation should extend benefit to the Applicant. He has relied upon the judgment of the Honourable Supreme Court in the case of State v. Farman Hussain reported in PLD 1995 SC Page-1 at page-3.
His next contention was that the weapon allegedly recovered from the Applicant was not sent to the Ballistic Expert and no plausible explanation was offered either by the complainant or by the I.O. The learned Counsel further submitted that the Courts below had passed the impugned judgment in violation of the provision of Section 103 Cr.P.C. and have failed to extend the benefit of doubt to the Applicant in violation of the principles laid down by the Honourable Supreme Court in the case of Tariq Pervez v. State reported in 1995 SCMR 1345. He submits that both the Judgment impugned in these proceedings had legal infirmity and were liable to be set-aside.
As against this, the learned AAG does not dispute that no private person was cited as witness of recovery. He also concedes that the weapon should have been sent to the Ballistic Report in order to establish whether such weapon was functional or not as it has come in evidence that the alleged recovery was effected from the garbage, which implies that the weapon was not functional.
I have heard the learned Counsel and learned AAG for the State and also perused the record. The evidence brought on record is dependent upon the deposition of the Complainant who was member of Anti-Narcotic Team, the I.O. who was also member of Anti-Narcotic Team and one PC Jamal Shah. The evidence brought on record further suggests that the Applicant was arrested from a public place and private persons though available were not cited witness and the I.O. in violation of provision of Section 103 Cr.P.C. has cited only police officials as witnesses which fact alone creates doubt and reflects adversely on the part of the prosecution. Additionally, the depositions of witnesses brought on record have material contradictions in as much as in the cross-examination the Complainant, Amanullah Marwat, he has admitted that the Applicant was arrested from a location which has hotel, a school and a petrol pump. PW PC Jamal Shah deposed that nobody from the locality was called to act as witness by the Complainant. In the deposition of Nadeemur Rahman, the I.O. he has deposed that the pistol was not sent to the Ballistic Expert without giving any explanation.
The learned Counsel for the Applicant has advanced weighty arguments in regard to the violation of the provisions of Section 103 Cr.P.C. Non-citing of private person as witness without a valid reason is always suspected and the prosecution has failed to give any plausible explanation as to why private person were not cited as witness of recovery.
Additionally, the contradictions pinpointed herein-above in the evidence of the prosecution is not confidence inspiring and Courts below were in error in convicting the Applicant on this material.
For the aforesaid reasons this Criminal Jail Revision Application is allowed, impugned judgments are set aside and the Applicant shall be released forthwith if not required in any other case.
These are the reasons of my short order dated 14-6-2006.
Judge