1998 P Cr (PLP)

SYED DEEDAR HUSSAIN SHAH, J.‑‑‑--In this appeal judgment dated 29‑8‑1996 delivered by Special Judge for Suppression of Terrorist Activities, Larkana is challenged.

2. Appellant was convicted and sentenced to suffer R.I. for five years and to pay fine of Rs.10,000 or in default of payment of fine to undergo further R.I. for one year for an offence under section 13(d) of the Arms Ordinance read with Suppression of Terrorist Activities (Special Courts) Act, 1975.

3. On 10‑9‑1997, after hearing learned counsel for the parties appeal was allowed by short order. We proceed to record the reasons for the same.

4. The facts of the prosecution case are that S.H.O. Banaras Khan of Police Station Taluka Larkana lodged report on behalf of the State being Crime No. 15 of 1996 stating therein that on the day of incident he alongwith subordinate staff left the police station on a police mobile vide entry No.8, dated 17‑2‑1996 for patrolling purpose. During patrolling S.H.O. Banaras Khan received information from Frontier Constabulary, Sindh that one person duly armed with klashnikov is present on the protective Bund near Village Dodo Sunhiry. After receiving such information complainant alongwith P.C./1435 Abdul Qadir Chandio, Hawaldar/158181, Muhammad Younis and P.C. 203491 Gulab Khan left for Jhali Band at 16‑00 hours when complainant and his subordinate staff reached at Jhali Band near Dodo Sunhiry Village, they saw a person armed with K.K. coming from south. When he reached near the police party they informed him about their identity. Knowing this he tried to run away but complainant and his subordinate staff encircled him and caught hold of him Complainant then enquired from him his name who disclosed his name to be Ali Dino son of Muhammad Ibrahim Khuhro resident of Ismail Ja Pirr Taluka Larkana. Complainant searched the accused and recovered one klashnikov alongwith magazines from his right hand and one bullets bag containing three magazines and 90 bullets. S.H.O. enquired from the accused about his antecedents and licence of arms and ammunition to which accused disclosed his name Ali Dino son of Muhammad Ibrahim Khuhro but failed to produce valid licence for KK and ammunition. S.H.O. prepared the memo of arrest and recovery at the spot in presence of Mashirs Gul Hassan and P.C. Lal Bux. Accused as well as his property were brought at the police station where F.I.R. under section 13(d), Arms Ordinance was registered.

5. After usual investigation final charge‑sheet against the accused was filed in the Court. Charge was framed against the accused for an offence under section 13(d), Arms Ordinance as Exh.2 to which he pleaded not guilty and claimed to be tried as Exh.3.

6. The prosecution in support of their case examined complainant Sub Inspector/Investigating Officer, Muhammad Banaras as Exh.4, who produced the attested copy of Roznamcha entry as Exh.4/A, memo. of recovery and arrest of accused as Exh.4/B. He also produced F.I.R. as Exh.4/C. Mashir H.C. Gul Hassan was examined as Exh:5 and the learned S.P.P. Incharge of the case closed the side on behalf of prosecution as Exh.6.

7. Statement of accused under section 342, Cr.P.C. as Exh.7 was recorded who denied the allegations levelled against him by the prosecution and stated that he was implicated in the case due to enmity with his tribe i.e. Khuhros, Chandios and Kalhoros and the K.K.. bullets and magazines had been foisted upon him. Accused denied the recovery of K.K., bullets and magazines. He did not examine himself on oath and did not produce 'any evidence in his defence. After hearing the parties, learned Judge convicted the appellant as referred hereinabove.

8. We have heard Mr. Asif Ali Soomro, learned counsel for the appellant who has contended that learned trial Court has failed to appreciate, assess and evaluate the evidence adduced by the prosecution. That the evidence adduced at the trial is insufficient to warrant conviction. That the evidence of recovery witnesses suffers from discrepancies, improbabilities and material contradictions. That the learned trial Court has erred in believing the evidence That the impugned judgment is not based on the correct appraisal of the evidence and that the learned trial Court has erred in not extending the benefit of doubt to the appellant. Learned counsel cited the following case‑law:

(1) Mishal Khan v. The State 1983 PCr.LJ 1628, (2) Muhammad Shafi v. The State PLD 1987 FSC 16, (3) Niaz Muhammad v. The State 1990 PCr.LJ 331, (4) Yameen Kumhar v. The State PLD 1990 Kar. 275 (5) Rehmat Ali v. The State 1994 PCr.LJ 475, (6) Muhammad Saleem v. The State 1992 PCr.LJ 35, (7) Inayat Ali v. The State 1994 PCr.LJ 1825, (8) Iltaf Hussain v. The State, 1996 SCMR 167.

9. Mr. Ali Azhar Tunic, learned A.A.‑G. has supported the impugned judgment and stated at the bar that prosecution has proved the case against the appellant beyond reasonable shadow of doubt. The discrepancies, improbabilities and material contradictions pointed out by the learned counsel for the appellant are minor in nature which cannot be considered for acceptance of the appeal to set aside the judgment of the learned trial Court. Mr. Ali Azhar Tunio, learned A.A.‑G. has cited the following case‑law:‑‑ (1) Roshan and 4 others v. The State PLD 1977 SC 557, (2) Rab Rakhio and 2 others v. The State 1992 SCMR 793, (3) Saeed v. The State 1995 PCr.LJ 1203 (4) Muhammad Zaman v. The State 1995 PCr.LJ 33.

10. We would like to refer the discrepancies, improbabilities and material contradictions pointed out by the learned counsel for the appellant. Muhammad Banaras, S.H.O. P.W.1 in cross‑examination to the learned counsel for the accused/appellant has stated:‑‑ "It is correct to suggest that there is Tomb of Pir Sher and village Pir Sher where I received spy information. It is incorrect to suggest that employees of Irrigation Department were present on the Regulator of Dadu Canal at that time. It is correct that I have mentioned the name of informer Hawaldar Muhammad Younis No.158181 of F.C. (Law Enforcing Agency). It is correct that I neither called Hawaldar nor asked him to act as Mashir. When I received spy information I informed my subordinate staff for the arrest of accused. It is correct that I have not mentioned m the memo. of recovery that K.K. was unloaded. It is correct to suggest that all the police diaries, Mashirnama, 161, Cr.P.C. statements are in one handwriting of P.C. Muhammad Ali whom I had directed. It is correct that the name of P.C. Muhammad is not mentioned in the F.I.R. or in the list of witness in challan sheet."

11. Complainant has denied the suggestion that all the formalities were completed by him at the police station; and that he had not received spy information and that he had not foisted the case due to pressure of Shabbir Ahmed Chandio, M.N. A.

12. H.C. Gul Hassan P.W.2 who acted as Mashir of arrest, recovery of K.K. and ammunition from the possession of the appellant has stated in his cross‑examination which is as follows:‑‑ "It is correct that after the arrest f the accused we all including arrested accused and three persons of Law Enforcing Agency returned back to the police station. It is correct that there were employees of Irrigation of Department at the Regulator of Dadu Canal. Mashimama of recovery and arrest was prepared by S.H.O. in his own handwriting anti obtained my signature."

13. The prosecution story which is very brief to the effect that on receipt of spy information through Law Enforcing Agency, S.H.O. proceeded there, caught hold of the appellant and recovered K.K. and magazines. Subsequently, Mashimama of arrest and recovery was prepared. That the discrepancies, improbabilities and material contradictions in the evidence recorded by the trial Court pointed out by the learned counsel for the appellant and referred hereinabove clearly show that evidence adduced by the prosecution is not constant, trustworthy and implicit reliance cannot be placed on it. S.H.O. Muhammad Banaras, the complainant and H.C. Gul Hassan, Mashir have materially contradicted each other on the factum of availability of the persons of the Law Enforcing Agency, arrest and recovery of the K.K. and ammunition from the possession of appellant and the preparation of the Mashimama which clearly shows that witnesses have either deliberately suppressed the material facts from the Court or have stated wrong facts before the Court on oath. According to S.H.O., Muhammad Banaras, P.C. Muhammad Ali was all along with him who prepared the Mashimama but it is strange enough to note that P.C. Muhammad Ali has neither been shown as a witness in the charge‑sheet submitted by the police nor he was examined by the prosecution. The main witness according to S.H.O. is Muhammad Ali in whose handwriting the Mashimama of recovery was prepared. Hawaldar Muhammad Younis, according to complainant was the person whose name has been disclosed by the complainant but S.H.O. neither called Muhammad Younis nor asked him to act as Mashir. According to S.H.O. on receiving spy information he informed his subordinate staff for the arrest of the accused. On this point he is contradicted by Gul Hassan who has stated that Muhammad Banaras received spy information and he neither informed him nor any other subordinate staff about. information.

14. Now we would like to discuss the case‑law referred by the learned counsel for the appellant and mentioned hereinabove. (1) In this case a learned Division Bench of this Court held as follows:‑‑ "Even if we were to hold that the recovery can be proved through the solitary testimony of an investigation Police Officer, in our view his testimony be such, which would inspire confidence. Any misstatement or suppression of a material fact by the Investigating Officer on oath before the trial Court will react on his creditability and will put the Court on guard." (2) A Division Bench decision of learned Federal Shariat Court held that:‑‑ "Conduct of police party being not above board, in the raid, no blanket protection could be given to police in circumstances. (3) In this case a learned Division Bench observed that:‑‑ "Contradictions in depositions of police officials might be minor in themselves but when taken cumulatively and seen in background of absence of any independent witness, assumed greater significance and vitiated authenticity of prosecution evidence." (4) In this case learned D.B. observed that:‑‑ "Where the case of prosecution depends entirely on recovery of arms and ammunition, care has to be taken by Court to scrutinise the statement of the witness for recovery with caution and the prosecution should also take care to produce independent and reliable witnesses to prove the recovery." (5) In this matter a learned Division Bench observed that:‑‑ "Despite the recovery having been made from a public thoroughfare no attempt was made to associate any member of the public in recovery proceedings, recovery witnesses were police officials." (6) In this case learned D.B. held that: "Both the recovery witnesses were trained police officials who had made inconsistent statements regarding important particulars. (7) In this matter learned D.B. held that:‑‑ "Failure on the part of prosecution to join any public witness in the investigation to witness the recovery despite their availability, had cast doubt on the entire prosecution." . (8) Rule laid down in this authority by their Lordships is that‑‑ "Recovery to be supported by public witnesses. Argument that public witnesses do not come forward to support such like recoveries because of risk to their life and liberty, nonetheless cannot absolve the police of their heavy responsibility to produce witnesses from public. "

15. Mr. Ali Azhar Tunio, learned A.A.‑G. has cited the following authorities which has been mentioned in the earlier part of the judgment and now we discuss the same as under:‑‑ (1) On the morning of 17th October, 1967, in the presence of four eye‑witnesses of whom P.W. Mst. Rehmate, was herself injured and Ata Muhammad, Ali Muhammad, Mst. Aisha, Ali Bahadur, Ghulam son of Mirza, and Ghulam son of Mehdi of village Churand, District Gujrat, were killed. Twenty‑two accused, including the five appellants were prosecuted for the offences under sections 302, 307 read with 149 and section 148 of the P.P.C. for rioting, killing the six deceased persons and causing injuries to Mst. Rehmate. Out of them Additional Sessions Judge, Gujrat, acquitted Baqri son of Khushi, and Muhammad, son of Raju and convicted the remaining 20 for the offences charged and sentenced as under:‑‑ (i) Roshan Mutalli, Nadir and Ghulam, appellants were sentenced to death under section 302/149, P.P.C. and the remaining 16 accused were sentenced to transportation for life. (ii) All 20 were sentenced to 2 years' R.I. under section 148 and .1 years' R.I. under section 307/149. On appeal filed by the convicts and reference received under section 374, Cr.P.C. a Division Bench of the Lahore High Court gave the benefit of doubt to 15 of convicts and acquitted them of all the charges. In appeal from conviction and sentences of the remaining five who were appellants, in this background of the matter their Lordships of the Supreme Court has held that:‑‑ "The occurrence took place in October, 1967 and the accused were brought to trial in May, 1971 nearly after 3‑1/2 years. After the trial rustic witnesses, including Mst. Rehmate, were subjected to lengthy and gruelling cross‑examination extending over periods ranging from two to four days each, by counsel who has acquired a reputation for employing brow‑beating tactics on witnesses and was criticised for this practice in a case which came before the Court some years ago. Under these circumstances, it should come as no surprise to discover that the cross‑examination of the prosecution witnesses brought out certain contradictions between the statements made by them at the trial and the statements recorded earlier by the committing Magistrate and the police. "

17. The facts of this case are quite different and distinguishable from the case in hand. In the impugned judgment, the prosecution examined two P.Ws. one complainant Muhammad Banaras and H.C. Gul Hassan, the Mashir both of whom are trained police personnel and both of them have given quite different versions about the factum of the arrest and preparation of Mashirnama of recovery of K.K. and ammunition from the possession of the appellant. Both the P.Ws. have materially contradicted each other on the receipt of spy information by the S.H.O. and the presence of Irrigation staff at the regulator mentioned and referred hereinabove in the earlier part of this judgment. This authority has no bearing to the facts of the present case. "(2) In this case P.W. Bakhshal son of Noor Muhammad on 17‑7‑1978 was driver of deceased Naseem Ahmed Khan Kharal who lodged the F.I.R. at Police Station Gambat that on the night between 13 and 14‑7‑1978, the deceased was sleeping in the Courtyard of Otaq, the complainant Munshi Gul Muhammad Shaikh, and Ayoob Abro were also sleeping on separate cots near the cot of the deceased, when at about 2‑00 a.m. the complainant woke up on account of some sound and found on the electric light accused/ respondent Rab Rakhio armed with a pistol and accused/ respondent Saleh son of Jumo armed with hatchet standing towards the head side of the cot of deceased Naseem Ahmad Khan Kharal, he also found that Attu alias Atta Muhammad, also armed with hatchet; was standing in the Courtyard near the entrance. He also witnessed placing of pistol on the left cheek of the deceased by accused Rab Rakltio and firing of the same at him. Thereafter, he raised cries and on his cries as well as on fire‑arm report, P.Ws. Gul Muhammad Shaikh and Ayoob Abro woke up and found the above accused persons in the Otak, who threatened them not to get up from their cots otherwise, they would also be murdered. After that, the respondents ran away. The complainant and above P.Ws. Gul Muhammad Shaikh and Ayoob Abro found Naseem Ahmed Khan Kharal lying murdered and the blood was oozing out from his injuries. On the fire‑arm report and cries, P.W. Taj Muhammad and other Haris of the deceased were also attracted to the place of Wardat, to whom P.Ws. Gul Muhammad Shaikh and Ayoob Abro narrated the facts. The complainant and the above P.Ws. found one empty cartridge of .12 bore pistol lying in the Courtyard near the wall towards northern side of the cattle shed. The complainant left the above persons near the dead body and he went to Gambat Police for lodging the F.I.R. On 25‑7‑1978 Muhammad Aslam Soomro S.H.O., Police Station Gambat arrested Rab Rakhio from his house situated in Mitho Khuhro who ultimately led to the recovery of weapons and unlicensed country made pistol in the presence of Mashirs Photo and Nooral. After completion of the investigation final charge sheet in the Court was submitted against the accused for offences under sections 120‑B, P.P.C., 449, 302 read with section 34, P.P.C. Rab Rakhio was also charged under section 13‑D of the West Pakistan Arms Ordinance."

18. The learned Additional Sessions Judge, after conclusion of the trial directed the acquittal of other seven co‑accused from the charge but convicted the three respondents. The learned Additional Sessions Judge also submitted reference for confirmation of death sentences awarded to the accused. The accused also filed appeals which were allowed by High Court and reference was rejected. Their Lordships of the Supreme Court considered the reasons and findings of the Additional Sessions Judge in the following terms:‑‑ "The learned defence counsel had attacked the recovery of country made pistol from accused Rab Rakhio. In this respect it was argued that both the Mashirs before whom the recovery was made, were not the persons of the locality, and they were chance witnesses. As I have already discussed in this case, that the police had first arrested accused Rab Rakhio and Saleh son of Jumo from the village of Mitho Khuhro in Taluka Ratodero, district Larkana. The recoveries were not made at that place. It was flood season and both the Mashirs were picked by Mr. Muhammad Aslam Soomro, S.H.O. from Riperi Bridge while he went to arrest the accused persons. It has come in his evidence that at some place they had gone on foot and at other place they had gone by boat to the village of the accused. Therefore, in such situation the S.H.O. was right in securing the two Mashirs before he went to arrest accused Rab Rakhio and Saleh son of Jumo, who were at large since the time of incident. " Their Lordships further observed that:‑‑ "From the above‑quoted portion of the judgment of the learned Additional Sessions Judge, it is evident that there was cogent reason for not having a Mashir of the locality from where the recovery was effected at the pointation of respondent No.

1. Even if we were to ignore the evidence of P.W. Photo for the above reasons, the testimony of the S.H.O., namely, of P.W.19 Muhammad Aslam Soomro remains in the field, which can be relied upon as has been held by this Court in the case of Muhammad and others v. The State PLD 1981 SC 635, wherein inter alia it has been held that testimony of policeman as to witnessing recovery of articles from an accused cannot necessarily be disbelieved merely because of his being policeman."

19. Honourable Supreme Court was pleased to allow the appeal, set aside the acquittal recorded by High Court and maintained the conviction awarded by the learned Additional Sessions Judge with the modification that death sentence was substituted by life imprisonment.

20. We are afraid, the facts of this case in any manner are not helpful to the case of the prosecution. In this case apart from the evidence of S.H.O. Aslam Soomro, there was evidence of Mashirs of recovery which was attacked by the learned counsel for the accused before the trial Court on the ground that Mashirs were not the persons of the locality. While the arrest of the appellant Rab Rakhio was effected from Mitho Khuhro, the Mashirs and the police has reached the place by going on foot and at other place they had gone by boat because it was the flood season. The acquittal of the respondent was disallowed by the Supreme Court and the judgment of the learned trial Court was maintained with the modification in the sentence. Here in this case though admittedly P.C. Muhammad Ali had prepared the Mashirnama of arrest and recovery who according to S.H.O. was all alongwith with the police party but he had not been cited as witness in the case. Moreover, Hawaldar Muhammad Younis of F.C. (Law Enforcing Agency) was also available with the complainant but he was not made Mashir of the alleged recovery. Under the circumstances this authority in any event is not applicable to the present case and is not favourable to the prosecution to maintain the impugned judgment. (3) The rule laid down in this case is that minor discrepancies and contradictions which do not materially affect the credibility of prosecution witnesses or make their version highly inconsistent can be ignored. This authority in our humble opinion is not helpful to the case of the prosecution. The discrepancies, contradictions which have already been pointed out and referred hereinabove are not minor in nature but those discrepancies and contradictions have materially affected the case of the prosecution and their evidence which is highly, inconsistent is hardly acceptable. (4) In this case Muhammad Zaman appellant was required by police vide F. I. R. No. 165 of 1991 registered at Police Station Jalalpur Jattan for an offence under section 302/148/149, P.P.C. alongwith Abdul Jabbar, Muhammad Ilyas and Aziz Ahmad. During investigation of the murder case the appellant was arrested with hot pursuit and keeping in view the case for an offence under section 302, P.P.C., this case was subsequently registered under section 13 of the Pakistan Arms Ordinance, 1965 and appellant Muhammad Zaman was convicted to suffer R.I. for three years with‑ fine of Rs.10,000 and the appeal was also dismissed by the Lahore High Court.

21. The facts of this case are also not relevant to the facts of this appeal. Appellant here in this appeal was not required in any other case whereas S. H. O. on receipt of spy Information arranged the patrolling of the police party and subsequently, he effected the recovery. In our opinion, this authority has no bearing on the facts of the present appeal.

22. We have considered the arguments of the learned counsel for the parties. We have also minutely gone through the evidence recorded by the learned Trial Court. The discrepancies, material contradictions and', improbabilities pointed out by the learned counsel for the appellant, referred hereinabove are of such a nature, which cannot be lightly brushed aside. Both the prosecution witnesses on the point of receipt of spy information, arrest of accused, recovery of arms and ammunition and preparation of Mashirnama have given quite different versions contrary to each other which has made the case of the prosecution highly doubtful. The evidence of both the P.Ws. who are gained police personnel is not consistent and trustworthy/which cannot inspire confidence.

23. The case‑law cited by Mr. Asif Ali Soomro is relevant and applicable to the facts of the present case which we respectfully follow. The case‑law relied upon by the learned A.A.‑G. is quite different and distinguishable from the facts of the appeal in hand. With due respect to the authorities we are of the considered opinion that these authorities have no bearing to the facts of the present appeal.

24. The learned Trial Court has not analysed/examined the evidence adduced by the prosecution but learned Trial Court has considered only the examination‑in‑chief and has not given anxious thought to the cross‑examination carried on by the learned counsel for the appellant. In order to do complete justice, the Court is required to consider the examination‑in‑chief and cross examination in juxtaposition so as to reach the correct conclusion.

25. It would be pertinent to observe that learned 'Trial Court has not considered the evidence which has come on record during cross‑examination and has simply considered the examination‑m‑chief. It has rightly been held that cross‑examination is the only source through which truth can be had from the mouth of the witness but Trial Court has not analysed/considered the cross examination of the P.W. at all, which has resulted in erroneous conviction and miscarriage of justice. Consequently, for the foregoing reasons appeal is accepted impugned judgment and conviction awarded by the Trial Court is hereby set aside. Appellant may be released forthwith if not required in any other case. H.B.T./A‑156/K Appeal accepted.