ABDUL RAQEEM Versus THE STATE

1. MUKHTAR AHMED JUNEJO, J .--- Appellant Abdul Raqeem has challenged his conviction and sentence by the Judge, Special Court-II, Suppression of Terrorist Activities, Karachi in Case No.5 of 1993.

2. According to the prosecution, on the night between 6th and 7th February, 1993 a police party headed by S.I.P. Kunwar Asif left Police Station Peerabad for night patrol. On the following morning at about 7 a.m. S.I.P. Sadiq accompanying the police party received spy information that two persons were proceeding to hills of Muslimabad under suspicious circumstances. Police party picked up P.W. Muhammad Afzal on the way and proceeded towards the hills, where two persons including the present appellant were present. Police caught hold of the appellant and searched his person. The appellant was allegedly carrying a bag containing one S.M.G. and two magazines containing 80 rounds. The appellant had no licence for possessing the same. He was arrested and recoveries were made under Mashirnama. Subsequently the appellant was taken to Police Station, Peerabad where F.I.R. was registered by S.I.P. Muhammad Sadiq. The case was investigated by S.I.P. Kunwar Asif who sent the recovered S.M.G. to the Ballistic Expert and on receiving his report challaned the appellant.

3. At his trial the appellant pleaded not guilty to the charge Exh.2 containing the prosecution allegations.

4. Prosecution examined P.Ws. Muhammad Sadiq Exh.3, Muhammad Afzal Exh.4, and Kunwar Asif Exh.5. In his statement Exh.7 appellant Abdul Raqeem denied the prosecution allegations and alleged enmity with P.W. Muhammad Afzal, who is said to be a narcotic dealer. Appellant added that Muhammad Afzal, who was narcotic dealer was prevented from selling heroin. Appellant further stated that he was arrested from his house at 2-00 a.m. on the night between 6th and 7th of February, 1993 and the weapon was foisted upon him.

5. The appellant gave his own statement on oath Exh.10 and examined DWs. Qamar Ahmed Khan Exh.8 and Syed Shahid Hassan Exh.9. At conclusion of the trial, learned trial Court convicted the appellant for the offence punishable under section 13-E of Arms Ordinance and sentenced him to undergo R.I. for four years. Hence this appeal.

6. Mr. Mehmood Alam Rizvi, counsel for the appellant argued that besides the incriminating articles one bag and some cash were allegedly recovered from the appellant but the same were not produced in the trial Court and that there was a contradiction about the distance from which the appellant was first seen and that the alleged recovery was earlier than picking up of Mashir Muhammad Afzal. Learned counsel further argued that the recovered weapon was not sealed at the spot and that Mashir Muhammad Afzal was of dubious character and was Mashir in other cases and was co-accused with a drug baron. Another contradiction pointed out was that besides Kunwar Asif no witness stated that 80 rounds were also recovered from the appellant.

7. Mr. Ashiq Raza, Advocate for A.G., Sindh for State supported conviction of the appellant and contended that P.W. Muhammad Afzal was a private person and an independent witness. It was also argued that the so-called enmity was not put to P.W. Muhammad Afzal and that the contradictions pointed out were not material. P.W. Muhammad Sadiq Exh.No.3 who was S.I.P. Peerabad Police Station supported the prosecution about recovery of one bag containing S.M.G. with two magazines each containing 40 rounds. He supported the Mashirnama of recovery Exh.3-A. He also supported and produced F.I.R. Exh.3-B lodged by him at Peerabad Police Station. Prosecution also examined P.W. Muhammad Afzal Exh.4, who acted as Mashir of recovery. P.W. Muhammad Afzal, who is resident of Banaras Colony deposed that he was returning from the house of his sister in Qasba Colony when he was picked up by a police party near the hills of Muslimabad and was told by police that they wanted to arrest two persons who were on the hills. He added that he was taken to the hills where no public man was present except two persons, held by police including the appellant. He added that appellant was holding a bag containing one S.M.G. and two magazines containing certain rounds for which the appellant had no licence.

8. Evidence of both the witnesses mentioned above shows that firstly the appellant was caught and then Muhammad Afzal was picked up as Mashir. Muhammad Afzal in his cross-examination stated that he was not literate. At the same time he stated that he put his signatures on two documents. He expressed his inability to say, as to, what were the contents of the Mashirnama Exh.3-A which was not read over to him as admitted by him. He was only told that the memo. Exh.3-A was about seizure of the weapon. He further stated in cross?-examination that his statement was not recorded at the police station but it as recorded at the spot. He admitted that his duty hours in Shipyard as Khalasi from 8-00 a.m. to 3-00 p.m. and that he was going to the Shipyard, when called by the police. This is in contrast with his earlier version that he was returning from house of his sister when picked up by police. P.W. Muhammad Afzal as well as S.I.P. Muhammad Sadiq did not state if the recovered weapons were sealed at the spot. S.I.P. Sadiq did not remember this. In the F.I.R. Exh.3-B the number of the S.M.G. recovered from the appellant is shown to be 56-1 12058895 and in the Mashirnama Exh.3-A same number is given but in report of the Ballistic Expert Exh.5-A number of S.M.G. is given to be ^[66] 56-1 12058895. Admittedly the recovered S.M.G. was not sealed at the time of recovery and there is no guarantee if the same S.M.G. was sent to the Ballistic Expert. Presence of Muhammad Afzal at the place of recovery is doubtful as-he is resident of Banaras Colony, Karachi, while the recovery took place at Muslimabad Hill near Police Post. P.W. Muhammad Afzal Exh.4 stands self?-contradicted inasmuch as he stated in his examination-in-chief that he was returning from house of his sister in Qasba Colony when taken by police party to the hills, while he stated in his cross-examination that he was going to the shipyard when on the way he was called by police. Muhammad Afzal Exh.4 falsely stated in cross-examination that he had gone to his sister's house as her husband had received injury in his arm. He had no reason to go there because his sister's husband was admitted in Jinnah Hospital, where his sister and her sons had gone as further stated by him in his cross-examination. He admitted that he did not go to Jinnah Hospital where his sister's husband was admitted. The alleged recovery was made from a third place viz. Hills of Muslimabad. It is difficult to believe that at the place of recovery no public man was present at 7-00 a.m.

9. The third witness Kunwar Asif Exh.5 supported the prosecution evidence about recovery of a bag with one S.M.G. and two magazines containing 80 rounds from the appellant, who had no licence for the same. He supported the Mashirnama Exh.3-A. P.W. Kunwar Asif is, however, a Police Officer being S.I.P. and hence he cannot be termed as an independent witness. In his cross-examination Kunwar Asif stated that P.W. Muhammad Afzal was brought to the police station. This shows that the Mashirnama of recovery was prepared at the police station and not at the spot. S.I.P. Kunwar Asif further stated that he recorded statements of the witnesses immediately after returning to the police station. He is contradicted by P.W. Muhammad Afzal who claimed to have been examined by police at the spot. Kunwar Asif said in cross-?examination that number of the weapon mentioned in the report Exh.5-A tallies with the number given in memo. Exh.3-A. On comparison of the two, it appears that there has been some tampering in the report Exh.5-A.

10. In his statement on oath Exh.10 appellant Abdul Raqeem said that on the night between 6th and 7th February, 1993 he was sleeping in his house when at 2-10 a.m. he was awakened by knocking at door of his house. On opening the door, the appellant found S.I.P. Muhammad Sadiq who took him away in his mobile to Police Station Peerabad. Appellant added that the said S.I.P. required information about M.Q.M. and told him that he was involved in cases of dacoity and possession of unlicensed weapon. Appellant alleged that he was harassed for two hours and was asked to pay Rs.50,000 for his release or else a Klashnikov would be foisted upon him. Appellant explained that one S.M.G. was planted over him on his refusal to pay the amount demanded. That an F.I.R. was also registered against him and others. The appellant added that P W. Muhammad Afzal used to sell heroin in the locality and he was prevented from selling the same and this annoyed him. D.Ws. Qamar Ahmed Khan Exh.8. and Syed Shahid Hussain Exh.9 supported the appellant that the latter was taken away by police from his house.

11. The prosecution case has to stand on its own legs. Police picked up as Mashir a person whose character was challenged, whose truthfulness was doubted, and who did not prove contents of the Mashirnama Exh.3-A. Before signature of Muhammad Afzal was obtained on the Mashirnama Exh.3-A, he was not read over said Mashirnama as stated by him. In the circumstances case against the appellant is not free from doubt.

12. For the foregoing reasons the conviction and the sentence of the appellant are set aside and he stands acquitted and his appeal stands accepted. He be released forthwith if not required in any other case. Such short order was passed on 23-12-1993 and these are reasons for the same.

13. N.H.Q./A-1571/K ?????????????????????????????????????????????????????????????????????????????? Appeal accepted.