1998 P Cr (PLP)

13. At the outset, the learned counsel for the appellant stated that the case in hand was concocted and the version given in the F.I.R. (Exh.P.A.) was absolutely incorrect and false. He further stated that A.S.‑I Ghazanfar Khan (P.W.4) has suppressed the facts because nothing was recovered from the possession of the appellant as has been depicted by him. He further contended that it was for this reason that nobody from the public was associated with the recovery process although quite a few persons were present on the spot when the recovery of contraband heroin powder was allegedly effected from the possessions of the appellant.

14. The learned counsel further submitted that the perusal of the recovery memo. (Exh.P.W.2/1) would show that it is absolutely silent as to when, where and at what time the recovery was allegedly effected. In the above back ground the veracity of the recovery memo. (Exh.P.W.2/1) was questioned vehemently.

15. Besides the learned counsel contended that it is now well settled principle of law that it' the law provided that an act should be done in a particular manner, then in that case, it shall be done in that manner and not in any other way. In support of his contention he placed reliance on the following case law:‑‑ (1) 1996 PCr.LJ 514 Ghulam Hussain and others v. The State. "(f) Where the law provides a particular manner then that thing should be done in the prescribed manner and not in any other way." (2) 1985 PCr.LJ 1985 Muhammad Rafiq v. The State. "(c). Ss. 342 & 364‑‑Trial Court failing to comply with provisions of S.364 Cr.P.C. and affixing stamp of certificate instead of writing such certificate in his hand‑‑‑Held, where law provides a procedure for doing a thing in a particular method, that thing should be done in prescribed manner and in no other way or it should not be done at all."

16. According to the learned counsel for the appellant the A.S.‑I. Ghazanfar Khan (P.W.4) the head of the police patrolling party, failed to associate even one independent witness from the public with the arrest of the appellant and the recovery of heroin powder from his possession even though the alleged incident, took place near graveyard of Tofkian. This fact alone would rendered the prosecution case highly doubtful and would support the claim of the appellant that the case against him was concocted. Further it has not been made clear by the prosecution as to what prevented the Investigating Officer (P.W.4) from associating anybody, from the public, to witness the recovery of heroin powder from the possession of the appellant. In fact the evidence on the file would show that no attempt whatsoever was made by the Investigating Officer (P.W.4) to get the recovery witnesses by an independent/disinterested person. In this setting of facts, the accusation, on the very face of it, is a vague as it is ambiguous. Reliance may be placed on case reported as titled Qaloo v. The State 1996 PCr.LJ

496. It was held:-- "Arts. 3 & 4‑‑‑Criminal Procedure Code (V of 1898), S.103‑‑ Appreciation of evidence‑‑‑Persons from the public despite being present and available having not been called upon to become recovery Mashirs, Mandatory provisions of S.103, Cr.P.C. stood violated‑‑ Excise Inspector who was the complainant in the case and recorded the F.I.R. had himself acted also as Investigating Officer and his evidence in circumstances required independent corroboration which was not available, rather besides having contradicted himself he was contradicted by other production witness in the matter of the chase given to the accused, presence of persons at the time of incident and the distance between the place of incident and the village of the accused‑‑ Patrol party consisting of seven members could not be believed to have allowed the accused to escape‑‑‑No independent evidence was available regarding recovery‑‑‑Benefit of doubt was given to the accused in circumstances and he was acquitted accordingly."

16. In my opinion since the persons from the public, being available and present, were not even called upon to become the recovery witnesses therefore, the mandatory provisions of section 103, Cr.P.C. were definitely violated.

17. Besides this in this case the allegation of the appellant that the Investigating Officer (P.W.4) was on inimical terms with him and his family and had a motive for falsely implicating him in this case is fully established from the cross‑examination of the Investigating Officer (P.W.4) The same isle reproduced as under:‑‑ "It is correct that prior to this occurrence on 12‑12‑1992 I had registered a case against the brother of accused namely Arab Zaman vide F.I.R. No.221 which is Exh.D.5. Similarly I had recorded F.I.R. and registered a case against another brother of accused namely Maqsood vide F.I.R. No.18 dated 10‑12‑1992 which is Exh.D.6. on 10‑12‑1992 I had also registered a case vide F.I.R. No.219 of Police Station Khanpur against Arab Zaman the real brother of accused which is Exh.D.7. It is correct that the said Arab Zaman and Maqsood against whom I registered the case, are real brothers of the accused. It is correct that on 20‑4‑1996 the real brother of accused Khalid namely Masood was murdered by the police in his house in the limits of Police Station Khannur. It is correct that a Private complaint has been filed by the brother of deceased namely Sardar against me and S.H.O. namely Mehmood Hussain which is pending before the learned Sessions Judge, Haripur. It is incorrect to suggest that in all the cases registered by me against the brothers of accused Khalid they have been acquitted being false cases and the present case is also a chain of the said false cases. It is further incorrect to suggest that nothing was recovered from the accused and I planted the said recovery just to counter the acquittal orders of his brother. "

18. In addition to this, it may be observed, that A.S.‑I. Ghazanfar Khan P.W.4) is himself a complainant and has also acted as an Investigating Officer Legally, he could not assume this dual function and it was incumbent upon him to have entrusted the investigation of the case to another disinterested Police Officer. This fact by itself, has rendered the very trial of the case a sheer, mockery. Additionally, it may be pointed out that if such a procedure‑practice is allowed to continue, it would give a licence to the police to involve innocent people in false/fake case according to their whims. This trend, in my opinion, is extremely dangerous and is accordingly depreciated with contempt. In this respect I am also, to a great extent, supported by the following cases: (1) 1996 PCr.LJ 440 Muhammad Altaf v. The State "Art.4‑‑‑Appreciation of evidence‑‑‑Complainant police official also acting as Investigating Officer‑‑‑Although the evidence of a complainant police official who also becomes the Investigating Officer is admissible in evidence yet for safe administration of justice for sustaining the conviction of an accused such evidence should be corroborated by independent evidence." (2) Qaloo v. The State 1996 PCr.LJ 496 "(b) Arts.3 & 4‑‑‑Evidence‑‑‑Complainant also acting as Investigating Officer‑‑‑No specific bar exists under the law against complainant Officer becoming the Investigating Officer, but being the complainant it cannot be expected that as an Investigating Officer he will collect any material which goes against the prosecution or gives any benefit to the accused‑‑‑Evidence of such Officer, therefore, is a weak piece of evidence and for sustaining a conviction it would require independent corroboration and will be scrutinized with great care and caution."

19. Needless to mention here that in the case in hand the fact that the appellant was tortured brutally by the complainant/Investigating Officer A.S.‑I. Ghazanfar Khan (P.W.4) is fully established by the statement of Dr. Shaukat Hussain (C.W.1) The Doctor stated: "On 31‑3‑96 I examined Khalid Mahmood son of Sain Mehboob, resident of Village Tofkian, Police Station Khanpur brought by Imtiaz Ahmad F.C. at 01‑30 p.m. and found the following: (1) Scattered small bruises on the left side of back of chest. Bluish black discolouration. (2) Scattered multiple bruises 4" x 1 " and 6" x 1 " diamension on the right buttock, scattered all over buttock. Redish Blue discolouration. All blunt simple injuries with duration No.1 more than 5/7 days and No.2‑1/2 days duration. I have seen my report Exhs.P.W.4/D, D‑5/C.W.1/1 which is correct and bears my signature correct and bears my signature correctly. x x x for accused. It is correct that I had examined Khalid Mahmood on the orders of Senior Civil Judge/Ilaqa Magistrate Haripur, vide application Exh.P.W.4/D‑

4. I have also signed on both sides of the said application. It is correct that Khalid Mehmood was produced by the local police for his medical examination. I had gone through the Medical Jurisprudence Books i.e. Moodi, Tariq etc. It is correct that bruise changes its colour by the passage of time. Within 24 hours its colour remains red, while the bluesh colour starts after 48 hours after its infliction. The bruises remain bluish from 3 to 6 days and after that it starts brownish and after lapse of about 10 to 12 days it starts black and remain so for 3 to 4 weeks. It is incorrect that bluish colour after' lapse of 72 hours changes its colour in black according to Moodi. It did not mention the word about while a giving duration of injury No.1. I found the 2nd Injury as fresh within duration of 1 to 2 days. I do not know the name of a counsel who was with complainant at the time of his medical examination. Investigating Officer of the present case was also present in the hospital at the time of examination Khalid Mahmood, it is correct that Azmatullah Walid, Advocate was not present at the time of medical examination of Khalid Mehmood, nor he had requested for any favour to Khalid Mehmood, XXX By the A. P. P. All the injuries were on the back side of the body of the examinee. The injuries can occur due to falling or slipping unintentionally. The injuries can be the result of beating of any stick etc."

20. On the other hand, the learned counsel for the State when confronted with the above situation, could not rebut the position emerging from the above line of reasoning. Resultantly, the prosecution evidence produced in this case is hereby discarded. The appeal is accepted and the conviction and sentence awarded by the Additional Sessions Judge, Haripur, vide his judgment, dated 22‑9‑1997 is set aside. The appellant shall be set at liberty forthwith if not required in any other case.

21. A copy of this judgment alongwith the copies of the statement of A.S.‑I. Ghazanfar Khan (P.W.4.), Dr. Shaukat Hussain (C.W.1) and the appellant recorded, on oath, under section 340(2), Cr.P.C. shall be sent to Inspector General of Police N.‑W.F.P. (by name) with the directions to take appropriate action against the said A.S.‑I. Ghazanfar Khan (P.W.4) as he had not acted in the discharge of his duties honestly besides torturing the appellant while he was in his custody. The police have no power/authority or right, whatsoever to torture the persons who are in its custody for investigation. The action so taken shall be intimated to this Court within a period of one month positively. H.B.T/ 12/P Appeal accepted.