KHALID MAHMOOD Versus THE STATE

SALAHUDDIN MIRZA, J. -- This appeal is directed against the judgment, dated 19th January, 1993 delivered by Special Court No.II, Suppression of Terrorist Activities, Karachi whereby the appellant was convicted under section 13-E of the Arms Ordinance for being in possession of an unlicensed Klashnikov rifle and its three magazines containing a total of 88 bullets and sentenced to undergo R.I. for four years. The facts as per F.I.R. in Crime No.349/92 recorded at Police Station Gulberg on 6-11-1992 at 19-40 hours at the instance of S.H.O. Mamrez Khan of the said police station are as follows.

2. In the afternoon of 6th November 1992 S.H.O. Mamrez Khan received spy information that one blue coloured Charade car Model 1984 bearing No.D-1855, which was snatched at gun point on 5-11-1992 from the area of Ajmer Nagri Police Station was seen in Federal "B" Area of Gulberg Police Station. On receiving this information the S.H.O. made Nakabandi of the area and during the Nakabandi at about 18-50 hours four persons were spotted coming in the said car from the side of Shafiq corner Nagan Chowrangi. The car was going towards Sohrab Goth. The S.H.O. signalled the car to stop but it accelerated the speed and even fired a shot on the police party and members of a Law Enforcement Agency. However, it was chased whereupon the driver of the car lost control of the vehicle and collided with the footpath dividing the up and down lanes of the road near the Edhi Home. Public gathered there. Three persons Habib, Shahid and Raees managed to escape but the fourth person who was sitting on the front seat next to the driver was apprehended. His name turned out to be Khalid Mehmood, the present appellant. One Klashnikov rifle bearing No.18059965 alongwith 88 live cartridges in three magazines was recovered from his possession. The arms and ammunition was secured, H.C. Muhammad Arif Jameel and a private person Azfar Mehboob acting as Mashir. After necessary investigation the accused was challaned in the Special Court No.II (S.T.A.) Karachi, where the case was registered as Case No.33 of 1992. The prosecution examined the said Mashir Azfar Mehboob as P.W.1 and the S.H.O. Mamrez Khan as P.W.2. The Mashir produced the Mashirnama of arrest of appellant and the recovery of the unlicensed arm and ammunition from his possession as Exh.3/A and the S.H.O. produced the F.I.R. Exh.4/A and the report of the Ballistic Expert Exh.6/A (which established that the rifle recovered was a 7.62 mm bore Klashnikov rifle which was an automatic weapon. In his 342, Cr.P.C. statement accused denied the whole prosecution story and stated that he was a part-time worker of M.Q.M. and had been falsely implicated in the case and at one time was even labelled as a guard of Safdar Baqri although he did not know Safdar Baqri at all. The appellant did not examine any defence witness nor he examined himself on oath. Learned trial Court, believing the prosecution evidence as narrated above, convicted and sentenced the appellant to undergo R.I. for four years. Feeling aggrieved from the said judgment the present appeal has been filed. Learned counsel for the appellant and learned AA.-G.. have been heard.

3. The first objection of the learned counsel for the appellant was that P.W.1 Azfar Mehboob was not the witness of the locality and therefore, there was a clear violation of section 103, Cr.P.C. which provides that a person of the locality should be made the Mashir of search. We do not find any substance in this objection. Agar Mehboob was going along the road when the car in which the appellant is alleged to have been travelling dashed against the footpath and was stuck up. He stopped on seeing the accident and was available on the site. He was not procured from any far-off place. Besides, this is not a case in which any place was searched and on that account also this objection could not be raised. We, therefore, reject this objection. It was then pointed out that a pistol was also recovered from the said car and in that regard P.W.1 Azfar Mehboob stated that it was found lying below "his" seat, meaning thereby that it was recovered from below the seat on which the appellant was sitting whereas P.W.2 Mamrez Khan stated that the pistol was found lying below the back seat (and not from below the seat on which the appellant was sitting since he was said to have been sitting on the front seat of the car) and learned counsel pointed out that it was a material contradiction in the prosecution story. A perusal of the Mashirnama Exh.3/A merely states that the pistol was recovered "from under the seat of the car". Learned counsel for the appellant also pointed out that the Mashirnama Exh.3/A states that the vehicle collided with the footpath in the middle of the road dividing the up and down lanes and P.W.1 Azfar Mehboob also stated so whereas P.W.2 S.H.O. Mamrez Khan stated that the car also collided with an Electric Pole near Edhi Home. It may be noted that the F.I.R. also does not state that the car had collided with an Electric Pole and it also states that the car had collided with the middle footpath. We agree with the learned counsel for the appellant that these discrepancies throw some doubt as to the authenticity of the manner in which the appellant was apprehended and the Klashnikov rifle and its ammunition recovered from his possession. We also find it difficult to believe that stolen vehicle was being used on the Karachi streets with its original Registration Number Plate. It is a matter of common sense that the thieves could have easily manipulated the number plate of the car. Establishing a Nakabandi after receiving spy information as to the presence of the stolen car in Federal "B" Area also does not appear to be plausible. No evidence has been produced to show on what points the Nakabandi had been established. Both the prosecution witnesses also state that the appellant was found sitting on the front seat of the car but this also sound unnatural because the first impulse of the appellant, after the car had hit the footpath or the electric pole, as the case might have been, would have been to make a dash for safety just as the three of his associates did. In that case, the appellant would have been apprehended while making good his escape from the car. However, we are asked to believe that he remained sitting on his seat and allowed himself to be apprehended without making any effort to escape or even without firing from his rifle to scare the personnel of the police and Law Enforcing Agencies in an attempt to escape. The conduct of the appellant, as made out by the prosecution, appears to be rather strange and therefore, raises doubts as to its authenticity. In our view, therefore, it is a case in which the appellant is entitled to benefit of doubt. We would, 8 therefore, accept this appeal, set aside the impugned judgment and direct that the appellant may be released forthwith if not required in any other case.

N.H.Q./K-342/K Appeal accepted.