MUHAMMAD ASIAM Versus THE STATE

1. ABDUL RAHIM KAZI, J: -- This jail appeal has been filed challenging the judgment passed by the Court of Special Judge for Suppression of Terrorist Activities, Larkana in Special Case No.78 of 1993 hereby the present appellant was convicted to undergo R.I. for four years and t0 Pay a fine of Rs.5,000 or m default to suffer R.1. for one year more. He has however, been allowed the benefit of section 382-B, Cr.P.C.

2. Briefly the facts are that on 11-8-1993 a police party of Police Station Kaber vide entry No.24 made at 21-30 hours left the police station on patrol duty. It is also the case of the prosecution the on way the police party had taken one Aligul, a private person with them and they had held Nakabandi on Mirokhan Kamber Road at about 12-00 mid-night. It is also alleged that at about 4-00 hours they saw the present appellant armed with Klashnikov coming from western side on the road and after having challenged the appellant, the police party captured him and recovered a Klashnikov alongwith a fitted magazine containing 15 live bullets and one empty magazine. The appellant is said to be without licence for the said weapon. Police had prepared the Mashirnama of Wardat which was signed by Constable Nazir Ahmed and said Aligul. The accused. and the weapon were then brought to the police station where the F.I.R. was lodged as Crime No.95,/93 under section 13-D, Arms Ordinance. The police after recording the statements of the witnesses had also got their statements under section 164, Cr. P.C, recorded before the Mukhtiarkar and F.C.M., Kamber on 26-8-1993 where he recorded his confession. The case was then challaned on 28-8-1993.

3. Charge under section 13-D, Arms Ordinance was framed against the accused on 8-9-1993 which is Exh.2 on the record. The appellant pleaded not guilty and therefore, the case was set for trial.

4. The prosecution has examined four witnesses i.e. P.W s. Aligul and P.C. Nazir Ahmed who both acted as Mashirs of arrest and recovery, A.S.I. Muhammad Mithal who headed the patrolling party and is the Investigating Officer and Rafiq Ahrned, Mukhtiarkar and F.C.M. Kamber who has recorded the statements of the witnesses under section 164, Cr.P.C. and also the confession of the present appellant. The prosecution then closed their side and the statement of the appellant was recorded under section 342, Cr.P.C. The appellant has denied the allegations brought against him and has claimed that he was riding a bus from Sehwan on the said date when a police constable had asked him to vacate the seat for, him and on his refusal he was got involved in this false case by the said police constable and that the Klashnikov and its ammunition has been foisted on -him. The appellant did not examine any witness in his defence but he has examined himself on oath. The trial Court after hearing the appellant and the Special Public Prosecutor found the appellant guilty and sentenced him as stated above.

5. The point for determination in the case was:

6. Whether the accused went armed with a Vlashnikov two magazines and 15 live rounds without a valid licence?

7. We have heard the appellant who has been produced from jail and is not represented by any counsel. We have also heard the learned A.A.-G. and perused the record. It may be observed that the provisions of section 8 of the Suppression of Terrorist Activities (Special Courts) Act, 1975 provide that burden of proof would lie on the accused to show that he is not so guilty. The provision's of section 8 read as under:

8. "8. Burden of proof. --- Where any person accused .of having committed a schedule offence is found to be in possession of or to have under his control, any article. or thing which is capable of being used for, or in connection with, the commission of such offence, or is apprehended, in circumstances which tend to raise a reasonable suspicion that he has committed such offence, he shall be presumed to have committed the offence unless he can prove that he had not in fact committed the offence:"

9. The - above provision of course lays down that where a person is accused of having committing a scheduled offence or having in his control any article or thing capable of being used for or in connection with the commission of a scheduled offence, shall be presumed guilty unless he proves otherwise. From the plain reading of the above provision it is clear that it has to be shown that the accused is alleged to have committed such scheduled offence or he is in possession or control of such article or thing, which could be used for the purpose. In the present case the allegation against the appellant is that he was in possession of a Ylashnikov alongwith two magazines and 15 bullets and therefore, liable to be punished under section 13-D of the Arms Ordinance. Now in view of the provisions of section 8 above it is necessary for the prosecution to show that the accused had been in possession of the said' weapon. Keeping this aspect in mind we proceed to examine the evidence. The first witness examined by the prosecution is Aligul, a private person who was taken by the police party to act as Mashir. This witness in his examination-in- chief at the very opening states that he was taken by the police party on the said date at 4-00 a.m. However, he immediately corrects himself and says that it was 4-00 p.m. when he was going to his village and the police met him and took him for patrol. Now this act itself goes to belie the prosecution case as according to the F.1.R. and the record of police investigation entry No.24 was made in the Roznamcha on 11-8-1993 at 21-30 hours and according to the A.S.I. Muhammad Mithal they had collected one person, namely, Aligul after having left the police station for patrol duty. The third witness P.C. Nazir Ahmed in his cross-examination states that it was 10-00 p.m. when P.W. Aligul was called by A.S.I. Muhammad Mithal to accompany the police party. The inconsistency in the time given by the witnesses, of whom only P.W. Aligul is an independent witness, itself creates a doubt in the case of the prosecution. This doubt is further strengthened by other material inconsistencies. This Mashir Aligul in his cross-examination states that he owns 10 Jarebs of land and that his son cultivates his lands and gives him half of the produce. Immediately in the next sentence lie contradicts himself and says that he is a Hari and cultivates land of one Haji Chandio. P.W. Nazir Ahmed in his cross- examination says P.W. Aligul owns land and cultivates the same. This contradiction renders the statement of this Aligul to be doubtful. Again P.W. Muhammad Mithal in his cross-examination states that he and other witnesses had gone to the office of Mukhtiarkar on a Tonga for recording the statements of the witnesses under section 164, Cr.P.C. As against this P.W. Aligul in his cross-examination states that they had gone to the office of Mukhtiarkar in a police mobile (motor van). This witness Aligul in his cross-examination has also stated that at the time of recording of 164, Cr.P.C. statements the Mashir and Investigating Officer were also present alongwith hirri in the office of the Mukhtiarkar. This gives rise to the presumption that the 164, Cr.P.C. statements were recorded by the Mukhtiarkar in presence of the Investigating Officer and therefore, could not be said to have been made voluntarily and under the presence of the Police Officer. As against this Mukhtiarkar in his deposition has stated that he had called the witnesses one after the other for recording their statements under section 164, Cr.P.C. In these circumstances the statements under section 164, Cr.P.C. would be of no value in the present case. There is yet another aspect with regard to these statements under section 164, Cr.P.C. as they are recorded after a delay of 11 days. The incident took place and the appellant was arrested on 12-8-1994 whereas these statements were recorded on 23-8-1994.

10. As for the confession of the present appellant it maybe observed that he was arrested on 12-8-1993 while his confession was recorded on 26-8-1993 8 i.e. after having remained in police custody for 14 days. This itself is sufficient to discard the said confession.

11. In view of the above discussion we are of the view that the prosecution has failed to discharge the initial burden of showing that the said Klashnikov alongwith magazines and bullets were recovered from the present appellant. The burden of proof as under section 8 of the Suppression of Terrorist Activities (Special Courts) Act, 1975 would shift to the accused only when the C prosecution initially shows that such weapon was found to be in possession of the present appellant. In these circumstances we allow this appeal, set aside the judgment passed by the trial Court and the conviction awarded to the appellant. The appellant shall be released forthwith if not required in any other ID case.

12. Above are the reasons for the short order announced in Court on 2-8-1994.

13. N.H.Q./M-2007/K Appeal accepted.