SHAH NAWAZ Versus STATE
SYED KHURSHEED HYDER RIZVI, J . -- This appeal is directed against the judgment passed by the learned Judge, Special Court No.1 (Suppression of Terrorist Activities), Karachi, dated 29-7-1992 whereby appellant Shah Nawaz was convicted by him under section 3/4, Explosive Act and was sentenced to imprisonment for life.
2. The case of the prosecution against the appellant is that P.W. Mazhar Hussain, Sub-Inspector, S.I.C. alongwith his staff was on patrol duty when at about 8-30 or 9 a.m. on 31-12-1991 he received spy information that one man was standing at D.D. Choudhry Road near Government Dispensary Baghdadi having two bags in his possession. He, therefore, alongwith Mashirs P.W. Malik Ali Muhammad and Muhammad Umar reached there and found appellant standing there having two bags in his hand. On opening one bag they recovered two Klashnikovs, six magazines containing 10 rounds each and 40 extra rounds. Appellant had no licence for the same and, therefore, Klashnikovs magazines and rounds were secured. On opening other bag police recovered a tin, which was opened and one Handgrenade, 11 Fuses 9 Time Switches and one Bausto Timer were also secured. Such Mashirnama was prepared. The appellant was arrested. S.I. also recorded statements under section 154, Cr.P.C. against the appellant separately for keeping in his possession the aforesaid articles. 154, Cr.P.C. statements were sent to Baghdadi Police Station, Karachi where F.I.R. was lodged on the basis of these statements. After usual investigation appellant was sent up before the Court.
3. Appellant pleaded not guilty to the charge framed against him under section 13-D, Arms Ordinance.
4. The appellant denied the allegations in his statement. He stated that he is a student of MA. Final in Public Administration Department, Karachi University, Karachi. On 24-12-1991 at 3 p.m. he was picked up by the police from in front of Gate of Urdu Arts College and since then he has remained in custody. On 18-1-1992 the Court directed the police to produce him in Court. According to him he was also referred for medical examination report of which was not received in the Court. He also stated that his father informed the Honourable Chief Justice, Sindh High Court, President and Prime Minister of Pakistan and Home Secretary, telegraphically. He produced the copy of the telegrams sent by his father alongwith the receipts.
5. The learned counsel for the appellant has submitted that prosecution has failed to prove the case against the appellant because the evidence of the two witnesses namely Malik Ali Muhammad and Mazhar Hussain are contradictory to each other. We have noted that Mashir Malik Ali Muhammad has stated in his evidence that he was standing near Sadiq Shaheed Chowk near Government Dispensary when a police mobile came there and called him to act as Mashir which he did. The other Mashir also arrived there as soon as he was called by the police. In cross-examination he stated that he was residing near Cantt. Station which is about 10 miles away from the place from where the appellant is stated to have been arrested. He also stated that he had gone to his uncle on that day. He further stated that he was at about one furlong away from the Lea Market Crossing from where the police took him with them. He also stated that appellant was already there with the police when he and other Mashir reached there. He also stated that when they reached the place from where the appellant was arrested, the police showed them the articles which were produced before the Court telling them that they were recovered from the possession of the appellant.
6. The evidence of the other witness namely S.I. Mazhar Hussain is quite different as according to him he had received the spy information while he was sitting in Azam Hotel near Lea Market. According to him Azam Hotel is at a distance of about one furlong from Lea Market Crossing. He further stated that accused was standing about 4 furlongs away from Lea Market and 5 furlongs away from Azam Hotel. It is important to note that the discrepancies found in the evidence of both these witnesses lead to the only conclusion that the case of the prosecution against the appellant is not free from doubt. It will also be noted that Mashir Malik Ali Muhammad lived about 10 miles away from the place from where the appellant is said to have been arrested. His presence at the scene of offence at such odd hours of night is doubtful. According to him he had gone to meet his uncle at about 10 p.m. on 31-12-1991. Even if he had gone to meet his uncle on that day, there appears to be no justification of his presence at the scene of offence at about 3 a.m. in the night. The copies of the telegrams produced by the appellant show that he had been arrested by the police much earlier from the date he is said to have been arrested by the police in this case.
7. For what we have said above, we are of the view that prosecution has failed to prove its case against the appellant beyond reasonable doubt. We. therefore, extend the benefit of doubt to the appellant and consequently accepting the appeal, acquit the appellant. He may be set at liberty forthwith if not required in any other case.
8. By a short order dated 22-3-1993 we had acquitted the appellant and above are the reasons for the same.
N.H.Q./S-1028/K ??????????????????????????????????????????????????????????????????????????????? Appeal accepted.