SHABBIR AHMAD Versus THE STATE

MIAN ABDUL KHALIQ, J: -- Shabbir Ahmad alias Shabira appellant aged 28 years was tried by the Special Court, Suppression of Terrorist Activities, Bahawalpur Division, Bahawalpur and vide judgment dated 29-6-1993 the learned Court convicted the appellant under sections 9 and 13 of the West Pakistan Arms Ordinance (XX of 1965) and sentenced him to 4 years' R.I. and to pay a fine of Rs.10,000. in default whereof to suffer further R.I. for 6 months. The appellant has come up in appeal to assail his conviction and sentence.

2. The prosecution case is that P.W.4 Muhammad Sadiq, Inspector/S.H.O. on 3-4-1.993 at 11-30 a.m. alongwith P.W.3 Pervaiz Iqbal, A.S.I. and other police officials was on patrol duty at Mauza Chak Gobind Mor when the appellant alongwith another person reached on a motor-cycle, who was apprehended and from him Klashnikov P.1 loaded with magazine which contained 20 live bullet P.2/1-20 was secured as he could not produce the licence.

3. To prove the recovery of crime property the prosecution examined P.W.3 Pervaiz Iqbal, A.S.I. and P.W.4 Ch. Muhammad Sadiq, Inspector/S.H.O. The appellant denied the prosecution allegation and disowned the Klashnikov and bullets and stated that he was innocent and on account of suspicion of his involvement in a police encounter, his house was raided. As he was not at his house, the police took his parents alongwith them. He was produced by Mehr Pir Bakhsh, H.C. before Ch. Muhammad Sadiq, S.H.O. (P.W.4). he was kept in illegal custody by the police and the case property was planted. In his statement under section 340(2), Cr.P.C. he stated that he was innocent. He did not want to add anything else to his statement recorded under section 342, Cr.P.C. and the same may be read as part of his statement. He produced Siddique Ahmad (D.W.1), his father, who stated that he had produced his son alongwith Mehr Pir Bakhsh H.C. before P.W.4 and the case property was planted.

4. Relying on the evidence of P.W.3 Pervaiz Iqbal, A.S.I. and P.W.4 Ch. Muhammad Sadiq, S.H.O. the learned trial Court convicted and sentenced the appellant as stated above.

5. It is contended that although the recovery was alleged to have been made from a roadside frequented by traffic, but no public witness was joined in the recovery proceedings. As both the recovery witnesses are police officials, no reliance can be placed on their testimony without some independent corroboration. Recovery of Klashnikov P.1 alongwith the live bullets from the appellant clearly seems to be fabricated and planted. Conversely, learned counsel for the State states that the police officials are as good witnesses as ordinary persons, therefore, their evidence was rightly acted upon by the learned trial Court. P.W.4 simultaneously acts as a prosecutor, investigator and a witnesses in the same case. P.W.3 is subordinate to P.W.4. The presence of a natural witnesses is, therefore, a necessity. No doubt the police officials are as good witnesses as others, but their statements in the peculiar circumstances of the case cannot be relied upon,. i.e. the number of Klashnikov P.1 in Exh.P.B. the report of the Armourer Ghulam Abbas, Constable (P.W.2) is over-written as well as in Exh.P.B./4, an application by P.W.4 Ch. Muhammad Sadiq, S.H.O. to the D.S.P. for permission to obtain certificate from the Armourer. It is noted with regret that the number of the Klashnikov in the abovementioned exhibits was overwritten.

6. In the instant case both the recovery witnesses are police officials. Although the recovery was alleged to have been made from public thoroughfare but no attempt was made to associate any member of the public in the recovery proceedings. It is hardly believable that the appellant would keep on advancing towards the police even on seeing them and would not have tried to slip away. He could have easily thrown away the crime property on witnessing the police party. .

7. For the foregoing reasons, we hold that the prosecution evidence is not trustworthy and reliable to sustain the prosecution case by itself. Resultantly the appeal is accepted, the conviction and sentence of the appellant is set aside and he is acquitted of the charge. He shall be released forthwith, if not required in any other case.

N.H.Q./S-388/L ????????????????????????????????????????????????????????????????????????????????? Appeal accepted.