1995 PLP 1532 (MLD)

‑‑‑‑S.13‑‑‑Criminal Procedure Code (V of 1898), S..103 ‑‑‑ Suppression of Terrorist Activities (Special Courts) Act (XV of 1975), Sched.‑‑‑Appreciation of evidence‑‑‑Accused was convicted and sentenced on the charge that a loaded klashnikov rifle was recovered from him‑‑‑Witness of alleged recovery was a subordinate Police Official who was also complainant in the case and no independent and respectable person from locality was called to attend and witness the search‑‑‑Recovery in such cases being an important piece of evidence was to be established by independent, disinterested and respectable persons of locality‑‑‑ Express and mandatory provisions of. S.103, Cr.P.C. relating to search and recovery, could not be ignored or brushed aside on whim and caprice of Investigating Officer except on well‑founded grounds and in exceptional cases‑‑‑Violation of provisions of S.103, Cr.P.C. or unexplained therefrom, had shade search and recovery in the case, unreliable‑‑‑Investigating Officer had combined triple positions in, himself as he was not only an Investigating. Officer, but also was a complainant and witness in the case‑‑ While confining such triple positions in himself it was essential for the Investigating Officer to offer a reasonable explanation in respect of his wilful omission to call respectable persons of locality to attend and witness search and recovery, especially when accused had alleged that a resident of village was present at the spot, but neither he was associated with recovery nor examined as a witness‑‑‑Possibility about accused having been falsely implicated in the case, could not thus be excluded‑‑‑Manner in which the Investigating Officer, who was also complainant in the case; had conducted himself, amply demonstrated that investigation carried out by him amounted to' mockery as neither he prepared site plan of the place where alleged recovery was effected nor he had associated any disinterested person with alleged recovery, though available‑‑‑Such deliberate lapses on the part of Investigating Officer had rendered recovery beset with grave doubt ‑‑‑Klashnikov, alleged to have been recovered from accused, was not sent to Ballistic Expert for his opinion as to whether it was in fact a klashnikov rifle or otherwise an automatic or semi‑automatic weapon‑‑‑In absence of any expert opinion, it could not be said with legal certitude that weapon recovered was really of the kind alleged by prosecution‑‑‑Offence, in circumstances, would not fall within the ambit of Schedule to Suppression of Terrorist Activities (Special Courts) Act, 1975, which would render the jurisdiction of Trial Court doubtful and very basis of trial before said Court altogether wanting in case‑‑‑Quality of evidence that had been adduced from prosecution side being not up to the mark conviction of accused could not be sustained‑‑‑Conviction and sentence of accused were set aside and he was acquitted of offence charged with. Muhammad Khan v. Dost Muhammad PLD 1975 SC 607; PLD 1990 SC 1083; Yar Muhammad Khan and others v. The State 1992 SCMR 96 and 1992 PCr.1J 1287 ref. Muhammad Akbar Khan Swati for Appellant. Adam Khan Jadoon for the State. Date of hearing: 9th August, 1994. Muhammad‑ Akram son of Ali Zaman, appellant was charged and tried under section 13 of the Arms Ordinance before the Special Judge (Suppression of Terrorist. Activities), Abbottabad, who convicted and sentenced him for that offence to suffer rigorous imprisonment for three years and a fine of Rs.3,000 or in default to undergo six months simple imprisonment by judgment dated 2‑6‑1994, which is being assailed by way of this appeal.

2. The prosecution case, briefly, is that on 15‑8‑1993 at 5‑30 a.m., A.S.I. Mumtaz Hussain Shah P.W.2, accompanied by F.C. Khan Afsar P.W. and L.H.C. Muhammad Anwar, under the direction of S.H.O. Police Station, Nara, conducted a raid in village Basheera for the arrest of proclaimed offender, namely Mohabat in' F.I.R. No.18 under section 302, P.P.C. of the aforesaid police station. In consequence, the arrest of the wanted person could not be affected ‑due to non‑availability in his house. However, one person took to flight from that house towards field, but he was given a chase and eventually apprehended by F.C. Khan Afsar P.W.1. A klashnikov rifle was found on his person and it was loaded with a Magazine containing 16 bullets. He gave his name as Muhammad Akram son of Ali Zaman, who is the present appellant. He could not produce licence or permit in respect of klashnikov, which was, taken into possession vide recovery memo. Exh.P.R. in the presence of F.C. Khan Afsar P.W.1 and L.H.C. Muhammad Anwar, not produced, as attesting witnesses. Thereafter, a Murasila Exh.PA/1 was prepared at 5‑30 a.m. sent to Police Station, Nara, where, on its basis, a case under section 13, Arms Ordinance was registered. In support of its case, the prosecution examined F.C. Khan Afsar P.W. and A.S.I. Mumtaz. Hussain Shah P.W.2, S.I. Ashiq Hussain Shah P.W.3 and L.H.C. Muhammad Anwar P.W.4. Of them, the L.H.C. registered a case on foot of. Murasila while S.I. Ashiq Hussain Shah submitted a challan against the appellant on completion of the investigation. The first two witnesses, however, supported the prosecution story set out above. In his statement under section 342, Cr.P.C., the appellant professed innocence, denied the truth of the charge and ascribed the case against him at the instance of complainant in the murder case referred. His contention is that Ali Dad D.W.1, a resident of village was present at the spot and he was neither associated with recovery nor examined as a witness. After conclusion of the trial, the Special Judge recorded the conviction and sentence imposed on the appellant, as already stated.

3. I have heard learned counsel for the appellant and State Counsel and also gone through the record of the case carefully. At the very out set it was pointed out and urged‑on behalf of the appellant that there was non compliance of provisions of section 103, Cr.P.C. inasmuch as witnesses of recovery were subordinate to A.S.I. Mumtaz Hussain Shah P.W.1, complainant and no independent and respectable person from locality was called to attend and witness the search and recovery is thus unreliable. Elaborating his argument, learned counsel for appellant has stressed that the purpose of this section of law is to ensure that the deposition offered in Court in respect of the result of search should not solely depend upon the Police Officials but also on the testimony of independent and respectable persons of locality and that possibility of mischief of fabrication or concoction be avoided by availability of such independent and disinterested persons and the accused be not left totally at the mercy of Investigating Officer. In this respect, reliance is placed on the authority reported as Muhammad‑ Khan v. Dost Muhammad PLD 1975 SC 607, which lays down that object of section 103, Cr.P.C. is to safeguard against possible chicanery and concoction, therefore, Courts will ordinarily insist on a strict compliance with this requirement and view its breach with suspicion unless an explanation, is forthcoming for failure to secure the presence of respectable witnesses or omission to examine them in Court. The same view is expressed in PLD 1990 SC 1083 and Yar Muhammad Khan and others v. The State 1992 SCMR

96. There is no denying the fact that recovery in a case like the one in hand is an important piece of evidence which is to be established by independent, disinterested and respectable persons of locality. This is precisely the reason that the express and mandatory provision of section 103, Cr.P.C. cannot be ignored or brushed aside on whim and caprice of the investigating officer except on well‑founded grounds and in exceptional cases. On these premises, it is strongly urged that violation of the provision of law under reference or unexplained digression therefrom, exposes the alleged recovery to distrust.

4. In the instant case, the Investigating Officer had prior knowledge of arranging raid on the house of the proclaimed offender for his 1pprehension and that, on his own showing, the appellant was residing in the same house. He is a complainant and also an Investigating Officer, beside being a witness. While combining the triple positions in himself, it was essential for this witness to offer a reasonable explanation in respect of his wilful omission to call respectable persons of locality to attend and witness the search and recovery, especially when Ali Dad D.W. was present at his elbow 'as also when all villagers are usually available in their respective houses at early morning time. He has not taken the plea that he sent ‑for the notables of the village or deputed any constable to fetch them. In this state of matters, the possibility about the appellant having been falsely implicated in the case cannot be excluded. Significantly the defence witness has positively stated that nothing incriminating was recovered from the possession or person of the appellant. To offset the effect of his evidence, a false stance is taken by the complainant, that as a sequel to raid, the appellant ran out of his house with a weapon' in hand. It was highly improbable as while being in house, he could easily take up the plea that the fire‑arm, if at all existing, was belonging to his brother and he had nothing to do with it nor could it be in his exclusive possession .in a joint residence. The conduct. imputed to the appellant is inconsistent with normal course of events. In the circumstances, I have no reason' to disbelieve Ali Dad D.W., who has no interest to save the skin of the appellant nor is he related to him in any wise. I equally cannot avoid the. inference that A.S.I. Mumtaz Hussain Shah, P.W.2 who undoubtedly bears a badge of complainant would be least expected to conduct investigation in an unbiased manner and indeed the way he has conducted himself amply demonstrates that investigation carried out by him amounted to mockery. He has neither prepared site plan of the house of proclaimed offender nor of the place where the alleged recovery was effected, nor has he associated any disinterested person with alleged recovery, though available. These deliberate lapses on his part render the recovery beset with grave doubts. This doubt does not diminish but is aggravated by a most jarring feature, such as, on arrival of A.S.I. Mumtaz Hussain Shah P.W.2, at the spot at 5‑30 p.m. he first carries out raid in the required house, then gives a chase to appellant and disarms him, also prepares a recovery memo. and finally scribes a Murasila at spot and despatches the same to police station. He makes ‑one believe that all this was accomplished by him within fifteen minutes. This circumstance, standing by itself, furnishes an inherent proof of fictitious and fabricated nature of recovery relied upon by the prosecution. The alleged recovery is not legally worthy of acceptance and I discard the same from my line of consideration for the reasons stated above.

5. Notwithstanding the above, the klashnikov, alleged to have been recovered in this case was not sent to the ballistic expert for his opinion as to whether it was in fact a klashnikov rifle or otherwise an automatic or semi automatic weapon. To some extent, the judgment reported as 1992 PCr.LJ 1287 and relied upon by the learned counsel for the appellant is attracted and binds the factual position of the instant case. In the absence of any expert opinion, it cannot be held with legal certitude that the weapon recovered is really of the kind alleged by the prosecution, namely automatic or semi automatic weapon. This being so, the offence would not fall within the teeth of the Schedule to the Suppression of Terrorist Activities (Special Courts) Act, 1975, which would render suspect the jurisdiction of the learned trial Court. Thus the very basis for trial before Special Judge is altogether wanting in the instant case. In other words, the trial in the Court of Special Judge stands vitiated. In view of the quality of evidence that has been adduced from the prosecution side, the conviction of the appellant cannot be sustained. So, from whichever angle, the appeal is looked at, it has force and merit and that it must succeed. Resultantly, the conviction and sentence passed on the appellant is set aside and he is acquitted of the offence charged with. The appellant is on bail, his bail bond is discharged and he is set free. The fire‑arm with ammunition recovered in the case stands confiscated to the State. H.B.T./1714/P Appeal allowed.