IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Crl. Appeal No.D-23 of 2002

PRESENT:

Mr. Justice Naimatullah Phulpoto,

Mr. Justice Salahuddin Panhwar,

Appellant : Jalaluddin Khaskheli, through Mr. Naushad Ali

Tagar, Advocte.

Respondent : The State, through Mr. Imtiaz Ali Jalbani,

Assistant Prosecutor General.

Date of hearing: 23-04-2014. Date of Judgment: 30.04.2014.

J U D G M E N T.

NAIMATULLAH PHULPOTO, J.- Appellant/accused Jalaluddin Khaskheli was tried by the learned II-Additional Sessions Judge/STA Judge, Taluka Kashmore at Jacobabad, in STA Case No.55/2000, arising out of Crime No.107/1997, registered against appellant at Police Station Buxapur, under Section 13(e) of Pakistan Arms Ordinance, 1965. After full-dressed trial, through judgment dated 28.3.2002 the appellant was convicted under Section 13(e) of Pakistan Arms Ordinance, 1965 and sentenced to suffer R.I for 03 years and to pay fine of Rs.25000/-; in case of default in payment of the fine appellant/accused was ordered to suffer R.I for 03 months more. Appellant was extended benefit of Section 382-B, Cr.P.C.

2. Brief facts of the prosecution case as disclosed in the F.I.R are that on 10.9.1997 ASI Arshad Ali was posted as Company Commander of S.R.P Kandhkot. On the fateful date, Inspector Jamshed Ali, PC Muhammad Qasim and DSP Gul Muhammad Shar came in his office for the purpose of inspection of the weapons issued to PCs Bashir Ahmed, Jalaluddin and Muhammad Sulleman. Thereafter, ASI Arshad Ali and others proceeded to the Police Check Post Ali Bux Jakhrani, where above-named police constables were posted. At that time, PCs Bashir Ahmed and Muhammad Sulleman were present alongwith weapons, whereas PC Jalaluddin was not present, however, his rifle was lying there. In presence of DSP and Armourer PC Muhammad Qasim weapons issued to the above-named police constables were checked. After checking the weapons, PC Muhammad Qasim, Armourer informed ASI Arshad Ali and others that the official weapons have been replaced and the weapons in the hands of the accused persons were Country-made. Thereafter, certificate to that effect was issued by Armourer PC Muhammad Qasim. On the basis of the opinion of the Armourer, ASI Arshad Ali arrested accused PCs Bashir Ahmed and Muhammad Sulleman. A mashirnama of arrest and recovery was prepared in presence of the mashirs, namely, Inspector Jamshed Ali and PC Muhammad Qasim. Thereafter, accused and property were brought at Police Station Buxapur and F.I.R was lodged against the above-named police constables under Section 409, PPC.

3. Separate F.I.R under Section 13(e) Arms Ordinance, 1965 was also lodged by ASI Roshandin against Jalaluddin on behalf of the State. It was alleged that official rifle allotted to appellant Jalaluddin was replaced by accused. After usual investigation challan was submitted against the accused under Section 13(e) Arms Ordinance, in the Court of learned Sessions Judge and Special Court for STA, Jacobabad.

4. A formal Charge was framed against the appellant by the trial Court under Section 13(e) Arms Ordinance at Ex.2, to which the appellant pleaded ‘not guilty’ and claimed trial.

5. At the trial, prosecution examined witnesses, namely, PW-1 Complainant Roshandin at Ex.07, who produced F.I.R at Ex.7-A, mashirnama of arrest and recovery at Ex.7-B; PW-2 Jamshed Ali at Ex.8; PW-3 Armourer PC Muhammad Qasim at Ex.9, and PW-4 Arshad Ali at Ex.10. Learned DDA closed the prosecution side vide statement dated 11.12.2001 at Ex.11.

6. Statement of the accused/appellant Jalaluddin was recorded under Section 342, Cr.P.C at Ex.12, in which prosecution allegations were denied. Appellant replied that P.Ws have deposed against him falsely at the instance of the DSP. However, no evidence was led in defence and even appellant declined to examine himself on oath in disproof of charge before the trial Court and claimed innocence.

7. Mr. Naushad Ali Tagar, learned advocate for the appellant mainly contended that the appellant Bashir Ahmed has been acquitted in Criminal Appeal No.D-25/2002 through the judgment dated 19.3.2013. He has further contended that appellant Jalaluddin has also been acquitted in the main Anticorruption case and there is no direct evidence that the weapon issued to the appellant was substituted by the accused. It is argued that the weapon was not recovered from the possession of the appellant, but it was lying at the Police Picket, from where the same was taken in possession by SIP Arshad Ali. It is submitted that weapon was not sent to Ballistic Expert for report. It is argued that the prosecution case is doubtful. In support of contentions reliance is placed on the case of Tariq Parvez v. The State, reported in 1995 SCMR 1345.

8. Mr. Imtiaz Ali Jalbani, Assistant Prosecutor General, argued that all the prosecution witnesses have fully supported the prosecution case and have categorically stated that the weapon/rifle was substituted by the appellant and prosecution has proved its case. He has fully supported the impugned judgment recorded by the trial Court.

9. Before addressing the contentions raised by appellant’s Counsel it would be conducive to refer the relevant portion of deposition of witnesses:

P.W Arshad Ali has deposed that on 10.9.1997 he was posted as Company Commander of SRP Kandhkot. On that date Inspector Jamshed Khan, PC Muhammad Qasim and DSP Gul Muhammad Shar came to his office for inspection of weapons issued to PCs Bashir Ahmed, Jalaluddin and Muhammad Sulleman. He accompanied them to Police Check Post Ali Bux Jakhrani, where PC Bashir Ahmed and Muhammad Sulleman were present alongwith weapons, whereas appellant PC Jalaluddin was not present, but his rifle was lying there. On checking PC Muhammad Qasim Armourer informed them that the weapons were not genuine and the same were country-made and such certificate was issued by Armourer PC Muhammad Qasim. Then PCs Bashir Ahmed and Muhammad Sulleman were arrested and such mashirnama was prepared in presence of mashirs Inspector Jamshed Ali and PC Muhammad Qasim. The accused and the weapons were then brought at PS Buxapur, where F.I.R bearing crime No.107/1997, under Section 13(e) Arms Ordinance, was lodged. PW ASI Arshad Ali could not identify the weapon/rifle lying in Court, which was secured from the appellant, at the time of checking.

In cross-examination he replied that one or two times he checked the weapons before this incident but defect was not found by him. PW further replied that he could not say whether the weapon/rifle recovered from the possession of the accused was same which was officially issued to him.

PW Muhammad Qasim has deposed that on 10.9.1997 he was posted in Headquarter Sukkur Armour and on the said date he alongwith Inspector Jamshed Ali and DSP Gul Muhammad Shar proceeded to Kandhkot under the orders of SSP, Sukkur SRP. They met Company Commander Arshad Ali at Kandhkot. At Check Post Ali Bux Jakhrani he checked the rifle issued to accused, which as per their register was China Made, but the rifle secured from the possession of accused was not genuine and it was country-made. Then SIP Arshad Ali arrested accused Bashir Ahmed and Muhammad Sulleman, who were present there, alongwith their rifles and then they went to PS Buxapur. He further stated that he issued Certificate in capacity of Armourer and mashirnama was prepared, which was also signed by him as mashir. According to him, SIP Arshad Ali lodged F.I.R against the accused and accused Jalaluddin appeared at PS after some time. He identified the case property viz., three rifles available in Court to be same which were recovered from the accused.

In cross-examination, PW Muhammad Qasim replied that he checked the number of rifle recovered from accused Jalaluddin, which is same. He admitted that this rifle was same number which was officially issued to accused. He again denied that the rifle secured from the possession of accused is same which was officially issued.

PW Jamshed Ali has deposed that on 10.9.1997 he was posted as Incharge Oath at SRP Sukkur and on that day as per direction of SSP Sukkur of SRP he accompanied DSP Gul Muhammad Shar and PC Muhammad Qasim Armourer to Kandhkot, where they met Company Commander Arshad Ali, who took them to Check Post Ali Bux, where he checked the rifles with the help of Armourer Muhammad Qasim of PCs Bashir Ahmed, Muhammad Sulleman and PC Jalaluddin. According to him, as per their record, the weapons issued to said accused were China made. He has stated that the rifles of all the accused secured from their possession were country-made. Then, Arshad Ali arrested and took accused Bashir and Muhammad Sulleman to PS Buxapur, where PC Jalaluddin voluntarily appeared later-on and he was also arrested and thereafter Arshad Ali lodged F.I.R. He was made mashir and co-mashir was PC Muhammad Qasim. PW Jamshed Ali also could not identify the weapon lying available in Court.

In cross-examination he replied that the rifle recovered from possession of accused, which was issued by their office to accused PC Jalaluddin. He stated that he could not say whether same rifle was recovered from the accused which was issued by the office. He also stated that the mashirnama of arrest and recovery was prepared at police station.

ASI Roshandin Mazari has deposed that on 10.9.1997 he was posted at PS Buxapur, where SIP Arshad Ali came alongwith accused Bashir Ahmed and Muhammad Sulleman, so also the weapons and by producing mashirnama of arrest and recovery SIP Arshad Ali requested him for lodging F.I.R against the accused. He registered separate F.I.Rs under Section 13(e) Arms Ordinance against accused Bashir Ahmed, Muhammad Sulleman and PC Jalaluddin and prepared mashirnama of arrest and recovery, which was signed by mashirs Arshad Ali and PC Muhammad Qasim.

In cross-examination, ASI Roshandin Mazari replied that the case property viz., semi-automatic rifle available in Court was country-made and original rifle was recovered from mosque near police station. He had also prepared mashirnama of recovery of original semi-automatic rifle.

10. While meticulous examination of referred evidence and careful consideration of grounds agitated by appellant’s Counsel, we have come to the conclusion that prosecution case is highly doubtful, for the reasons that no direct evidence has been produced at trial in order to substantiate the charge that official China Rifle was really substituted by the appellant. There is legal force in the contention of the learned Counsel for the appellant that possibility of substitution could not be ruled out in the ‘Malkhana’. Moreover, material witness Incharge ‘Malkhana has not been examined by the prosecution to prove that official China Rifle, case property in the case, was allotted to the appellant. It is very strange that after recovery of the rifle it was not sent to the Ballistic Expert for his report. PC Muhammad Qasim Armourer claimed to be Ballistic Expert, but ordinary Police Constable without specialization in the relevant field would not be equated with Ballistic Expert. Thus, in the instant case, opinion of PC Muhammad Qasim cannot be safely relied upon for the purpose of conviction. In absence of expert opinion it cannot be held with legal certitude that weapon recovered in absence of the appellant was really of the kind alleged by the prosecution, namely, China made, automatic or semi-automatic weapon. Besides, prosecution has failed to bring on record entry/order whereby alleged weapon was officially allotted to the appellant; no date has been mentioned by the prosecution on which the appellant had substituted such weapon. It has also come on record that at the time of checking the weapon appellant was not present at the police picket, only weapon was lying there. This circumstance is also fatal for the prosecution. ASI Arshad Ali had failed to produce before the trial Court departure entry to satisfy the Court that he had actually left alongwith DSP by associating PC Muhammad Qasim for checking the weapons. ASI Arshad Ali had also failed to identify the case property before the trial Court. Appellant in his statement recorded under Section 342, Cr.P.C claimed his false implication at the instance of the DSP, who was head of the police party, but he has not been examined at trial. It is settled law that non-examination of material witness would be certainly beneficial circumstance for the accused. Further, aforesaid narration of the evidence on record manifests that it cannot be said with judicial certainty that arm/rifle allegedly allotted to the appellant was manipulated by him. Co-accused Bashir Ahmed, who was convicted by the trial Court, in identical circumstances has been acquitted by this Court in Criminal Appeal No.D-25/2002. Appellant has been acquitted by trial Court through order dated 31.5.2011. Apart from that, we have come to the conclusion that learned Special Judge, STA, had no jurisdiction to try the case under the provisions of Suppression of Terrorist Activities Act, 1975, for the reasons that in the Schedule of the Act of 1975 it is mentioned as under :-

“(c) Any offence punishable under the Arms Act, 1878(XI of 1878), or any offence punishable under any of the following sections of the West Pakistan Arms Ordinance, 1965 (West Pakistan Ordinance No. XX of 1965), namely, sections 8, 9 and 10, if committed in respect of a cannon, grenade, bomb, rocket or a light or heavy automatic or semi-automatic weapons such as a Kalashnikov, a G-III rifle or any other type of assault rifle.”

The above-mentioned Schedule, which gives jurisdiction to the Special Court, no where reflects that official weapon falls in such category as no Ballistic Expert report regarding weapon recovered from the appellant was not brought on record, as such Special Court for STA had no jurisdiction to try the case under the provisions of the Suppression of Terrorists Activities (Special Courts) Act, 1975, consequently proceedings are liable to be vitiated.

11. In the view of above defects in the prosecution, it is pertinent to mention that prosecution has miserably failed to prove its case against appellant beyond reasonable shadow of doubt. It is settled principle of law that while extending benefit of doubt to an accused person it is not necessary that there should be many circumstances which create doubts. If a single circumstance creates reasonable doubt in a prudent mind about the guilt of accused, then accused would be entitled to award such benefit not as a matter of grace and concession but as a matter of right. Reliance is placed upon the case of Tariq Parvez v. The State, reported in 1995 S C M R 1345.

12. Keeping in view the above-stated reasons, we allow this appeal, therefore, the conviction and sentence awarded to the appellant is set aside and he is acquitted of the offence charged with. Appellant is present on bail, his bail bond stands cancelled and surety is hereby discharged.

JUDGE

Qazi Tahir/*