1992 PLP 578 (MLD)

SALAHUDDIN MIRZA, J.‑‑‑F.I.R. No.36/90 of Police Station "A" Section Latifabad, Hyderabad, was recorded on 27‑3‑1990 at 1800 hours under section 13‑E of Arms Ordinance at the instance of SIP Muhammad Farooq of the said Police Station and the prosecution case as made out therein is that a police party was on patrol duty under the charge of S.I.P. Muhammad Farooq and when it reached American Hospital in Unit No.7 Latifabad at about 1645 hours it saw some young persons standing on the road in suspicious manner whereupon the Police Party stopped their vehicle and came out of it in order to apprehend them at this the young persons tried to escape and ran towards UBL Unit No.7 and finally entered House No.12 of Block "D" of Unit No.7. The Police party, which was also accompanied by SDM and SDPO of Latifabad, entered the said house after encircling the same. On entering the house, the police party saw MPA Tariq Javed of Karachi having a meeting with eight or ten persons in the room located on the left side of house. In the front room the police party encountered tour young persons "sitting in suspicious circumstances". The police party enquired their names whereupon they gave their names as Kamal Ahmed, Syed Orangzeb, Ashiq Rasool and haziuddir, who are the appellants in this appeal. The police party arrested them and ASI Aqeel Ahmad and Constable Nizamuddin acted as mashirs of their arrest. The personal search was conducted but nothing was recovered. Then the room in which the four persons were sitting was searched and four empty holsters of Revolver and 2 Towels were recovered from underneath the sofa on which the said four persons were sitting. Search of the attached room resulted in the recovery of a Mouzer, two magazines and 13 rounds from the flush tank of the' bath room. (It was not disclosed whether the magazines and the rounds were of the said mouzer or of some other weapon). Search of another room resulted in the recovery of one "small" Klashnikov in bad condition and also having no number. All the articles were duly taken possession of by the Police party. The police party had a talk with MPA Tariq Jawed and Deputy Mayor Rasheed Bhaya and MPA Ameenuddin, who were all present in the house, and all three of them stated that they did not know the four young persons who were not known to them. Search of another room in the upper storey of the house produced some documents and Rs.1,150 in cash which were also secured. The police party came to know that. the house was the office of APMSO and was in the charge of Muhammad Shahabuddin. Since the four young persons could not produce any licence of the arms and ammunition recovered as stated above, a case under section 13‑E of Arms Ordinance was registered against them. All of them were charged under section 13‑E of Arms Ordinance and they pleaded not guilty. The prosecution, in support of their case; examined three persons. P.W.1 is Muhammad Farooq, SIP (the complainant) who supported the case as made out in the FIR. In cross‑examination he stated that he did not record the statements of MPA Tariq Jawed or of any of the other eight or nine persons (including the Deputy Mayor) who were having a meeting with the MPA. He further stated in cross‑examination that Deputy Mayor Rasheed Bhaya and MPA Ameenuddin came to the said house after the police party was already inside it. He also produced the mashirnama of arrest of the appellants/accused and the recovery of the various articles, the details of which have already been given above, and the F.I.R. The second witness is P.W.2 Nizamuddin Constable. His deposition is practically the same as that of P.W.1 Muhammad Farooq. The third witness is P.W.3 Aurangzeb SDM Latifabad. His version of story is somewhat different. According to him, some of firing had taken place near American Hospital and when the police party reached there at about 5‑00 p.m. it followed the culprits in the street and then in the house. Further statement of Mr. Aurangzeb is similar to the other two witnesses. The SDM however could not recognize the appellants as the persons who were arrested from the house. He also could not identify in the Court the property secured from the house. In 342, Cr.P.C. statements the appellants denied the entire prosecution case and in answer to the question as to why the prosecution witnesses had deposed against them, they replied that none had deposed against them. On the basis of this evidence learned Special Judge, Special Court for Suppression of Terrorist Activities Hyderabad, vide judgment, dated 18th March, 1991, found the appellants guilty of the charge and convicted them under section 13‑E of Arms Ordinance and sentenced them to suffer R.I. for three years. Feeling aggrieved from their conviction and sentence the appellants have filed this appeal before this Court.

2. The learned counsel for the appellants has raised three points before us. Firstly, that the evidence on record does not make out a case under section 9 or 13‑E of the Arms Ordinance: secondly, that the Investigating officer conducted the investigation in violation of section 103 of Criminal Procedure Code inasmuch as independent persons were available to act as mashirs of search of the house and of recovery of the alleged incriminating articles from there and of the arrest of the appellants but they were not associated with the investigation; and, thirdly, that it is a case of mis appreciation of evidence by the learned trial Court.

3. It is not the case of the prosecution that the appellants were armed when the police party saw them in the street. The F.I.R. as well as the examination‑in‑chief of the complainant SIP Muhammad Farooq make it clear that the appellants were found in suspicious circumstances. What those suspicious circumstances were has not been explained. At any rate, they were not said to be armed and therefore the logical conclusion is that they were unarmed. According to the prosecution version itself, the appellants tried to escape on seeing the police party and entered House No.12. Again, according to the prosecution this House No.12 was office of APMSO and was in the charge of one Shahabuddin. Far from proving, the prosecution has not even alleged any connection between the appellants and the APMSO or between the appellants and the said house. As such, the ingredients of section 9 of the Arms Ordinance have not been established. Section 9 provides that no person shall have in his possession or under his control any arms or any ammunition or military stores except under a licence and in the manner and to the extent permitted thereby. On the strength of the prosecution case itself, the recovered arms and ammunition cannot be said to be in the possession of the appellants or under their control because according to the prosecution version itself, the appellants tried to flee from the street when they encountered the police party' and entered House No.12. This House No.12 is not shown to be the residence of any of the appellants nor it has been shown that the appellants had any connection with or control over this house. It may be noted that r `PA Tariq Jawed was present in the said house and having a meeting with eight or nine other persons. Thus, according to the prosecution itself, these persons were to some extent in control of the said house. If so, it is not clear why a case under section 13‑E of Arms Ordinance was not registered against them and was registered against the appellants who had only tried to escape from the police party and taken shelter in the said house. According to the learned counsel for the State, it is a case of constructive possession in terms of section 9 of the Arms Ordinance. We fail to see how four strangers entering a house in the circumstances shown in the F.I.R. could be deemed to be in constructive possession of the articles found in the said house. Learned counsel for the appellants had referred us to the judgments of Nasir Ali v. The State (1988 PCr.LJ 1960) in which the facts were that an unlicensed knife was recovered from the house of accused and yet it was held that exclusive possession of the accused was not proved because other members of the family of the accused were also residing in the same house. It was a case in which recovery was made from the house of the accused himself and yet it was held that his exclusive possession was not proved. The case of the appellants before us stands on a much stronger footing because here the recovery has been made not from house of the appellants, but from a house with which, even according to the prosecution itself, they had no concern and had merely entered it at the spur of the moment to avoid confrontation with the police patrol party. A similar view was taken in the case of State v. Kazi Pervez Iqbal (PLD 1978 SC, 64).

4. Of course, the superior Courts have held more than once that a police officer is as good a witness as any other private person and recovery of an incriminating article can be successfully proved on the strength of a Police Official acting as mashir of recovery. However, provisions of section 103, Cr.P.C. have not been rendered redundant and they are very much in force. This section provides that whenever any place is to be searched, the Officer or other person intending to make the search shall call upon two or more respectable inhabitants of the locality to attend and witness the search. Now, it is not the case of the prosecution that no independent person could be procured at the nick of time and none was available at the Wardat. MPA Tariq Jawed may not be a person of the locality because he was stated to be of Karachi but he was having a meeting with eight or nine other persons and the presumption is that all of them belonged to the same locality. Why none of, them was associated with the search of the police, recovery of the incriminating articles and arrest of the appellants has not been explained. It is rather surprising that the Investigating Officer did not even care to take down the names of those eight or nine persons who were having meeting with MPA Tariq Jawed. In this regard reference may be made to the case of Yameen Kumhar v. The State (PLD 1990 Kar. 275). In our view it is a case in which the charge against the appellants cannot be held to have been established even if the entire prosecution evidence is believed in toto. We have gone through the impugned judgment and are of the view that it is clear case of mis appreciation of evidence.

5. In view of above discussion, we are of the view that the prosecution failed to prove the charge against the appellants. As a matter of fact, a bare reading of FIR would show that the appellants cannot be held to be in possession of or in control of any article, incriminating or otherwise, as contemplated in section 9 of the Arms Ordinance, found in House No.12. We would therefore, set aside the sentence and conviction of the appellants and accept the appeal. All the appellants are in custody and they may be set at liberty forthwith unless they are required in any other case.

6. These are the reasons for the short order we had announced on the conclusion of the hearing. H.B.T./A‑1098/K Appeal accepted.