1994 P Cr (PLP)

According to the F.I.R. appellant Zahid Hussain was already in police custody when he was taken out from the police lock-up and was interrogated. During interrogation the appellant is said to have agreed to produce one Klashnikov, one magazine and 30 live cartridges said to have been concealed at some place. He led police to a land adjacent to Raj Wah and near village Walyo Khoso and produced from there one Klashnikov, with a magazine and 30 live bullets, which were concealed under dried grass. The same was recovered under a Mashirnama. The appellant had no licence. S.H.O. Muhammad Uris of Thariri Mohabat Police Station took the appellant and the recovered property to said police station, where he registered the case against the appellant under the Arms Act as the appellant had no licence. At his trial the appellant pleaded not guilty to the charge containing the prosecution allegations. Prosecution examined S.H.O. Muhammad Uris Exh.5 and LNK Karim Bux Exh.4. In his statement Exh.7, the appellant denied the prosecution allegations and alleged that he was falsely implicated in this case at the instance of Abdul Hamid Khan Jatoi, a Zamindar, due to political rivalry. Appellant added that he went to the police station on 9-9-1992 to get released his father Haji Adam and his cousin Haji Khadim but police detained him. Appellant added that police demanded illegal gratification which he did not pay. In his statement on oath Exh.8 the appellant stated that nothing incriminating was secured from his possession and he was implicated falsely. In his defence, he examined D.Ws. Haji Muhammad Uris Exh.9 and Khuda Bux Exh.10. At conclusion of the trial, the trial Court convicted the appellant for the offence punishable under section 13-E of the Arms Ordinance and sentenced him to undergo R.I. for seven years and to pay fine of Rs.10,000 or to suffer further R.I. for one year. Hence this appeal. Mr. Hidayatullah Abbasi, learned counsel for the appellant argued that the case against the appellant was false, and that no independent witness was examined to support police version. It was also argued that the appellant was already in custody before the alleged recovery. Learned counsel took exception to the fact that Muhammad Uris was complainant as well as Investigating Officer in the case. The recovery was said to be from hedge which was accessible to anybody, as argued. Learned counsel pointed out certain contradictions, which according to him are rare when all the witnesses are police people. The Mashirnama of recovery was said to have been written by W.P.C. Bashir Ahmed, whose name did not appear either in the F.I.R. or in the Mashirnama. The Mashirnama, according to the learned counsel, appears to have been written at the police station. Lastly it was argued that the appellant was a primary teacher, who was assigned election duty at Mehar during the last National Assembly Elections and' his conduct had annoyed a politician who entangled him in this case. In support learned counsel cited the cases of:-- (i) Rao Muhammad Jalees alias Jaloo v. State 1990 P Cr. L J 26, (ii) Muhammad Azeem v. State 1977 P Cr. L J 671, (iii) Abdul Hameed v. State 1987 P Cr. L J 1707, (iv) Ashiq Hussain Chandio v. State Y L D 1992 Kar. 5, (v) Yameen Kumhar v. State P L D 1990 Kar.

275. Mr. Abdul Latif Memon, A.A: G. conceded that the appellant was ah eady in police custody before the recovery, which was from a heap "pallal" grass. Learned AA: G. argued that plea of the appellant that he was entangled due to enmity was put to one of the two prosecution witnesses. It was added that no enmity was alleged with the witnesses and that the appellant was rightly convicted and given lesser punishment as he was an educated person. In respect of the police witnesses learned AA.-G. cited the case of Obaid Ullah v. The State 1992 P Cr. L J

726. Complainant Muhammad Uris Exh.5 and LNK Karim Bux Exh.4 have supported the prosecutior*that on 27-11-1992 the appellant, who was already in custody, led them to a place at Rajwah and produced from there one Klashnikov with a magazine containing 30 bullets and that the same was lying under a heap of "Pallal" grass, which was lying in a "Khara" of an uncultivated land near Rajwah. In his cross-examination Karim Bux Exh.4 stated that he and police party proceeded from police station straight to the Wardat and the vehicle was parked at Gul Muhammad Mori. In his chief Karim Bux said that after leaving the police station, police party reached house of the appellant and from there he led them to the place of recovery. Karim Bux admitted that Thariri Mohabat was thickly populated area of 30/40 thousand people and that while going to the village of the appellant no public person was picked up by S.H.O. on the way and there were 7/8 villages near village of the appellant. Karim Bux also stated that some persons were passing from the way near the Wardat but the S.H.O. did not call for any such person, during stay of 30/45 minutes at the Wardat. Karim Bux added that Mashirnama Exh.4-A of recovery was prepared by W.P.C. Bashir Ahmed at dictation of S.H.O. and the S.H.O. read over the Mashirnama but name of W.P.C. Bashir Ahmed was not mentioned in it. Karim Bux admitted that the appellant was a teacher and that the case property was wrapped in a white plastic bag, which was not available in the trial Court. S.H.O. Muhammad Uris supported the Mashirnama of recovery Exh.4-A and produced F.I.R Exh.5-A lodged by him against the appellant. In his cross-examination he admitted that population of village Thariri Mohabat was 30/40 thousand. He admitted that the appellant was a primary teacher and no public person was taken at the time of the recovery. He admitted that there were 3/4 villages on the way from police station to village of the appellant. He admitted that while he reached the place of recovery two persons passed and they were approached to act as Mashirs but they declined. This thing was not mentioned either in the F.I.R. or in the Mashirnama. He denied the fact that Mashimama was prepared by W.P.C. Bashir Ahmed. He contradicted P.W. Karim Bux by saying that the recovered property was not covered by anything. In view of such contradictions it is difficult to rely on the evidence of the two police officers. No doubt in the case of Obaid Ullah v. The State 1992 P Cr. L J 726, the view taken was that evidence of Police Officers cannot be totally brushed aside unless the investigation is said to be dishonest or conducted mala fide against the accused. In the cited case the police evidence did not show so many contradictions as in the instant case. In the case of Rao Muhammad Jalees alias Jaloo v. The State 1990 P Cr. L J 26, the view taken was that where two or more respectable inhabitants of the locality had not witnessed the search the recovery action was in violation of section 103, Cr.P.C. vitiating the trial. In the .case of Muhammad Azeem 1977 P Cr. L J 671, two Police Officers appeared as witnesses to recovery and not an independent public witness was cited and it was held that the possibility about ,the accused having been falsely implicated in the case cannot be excluded. In the case of Abdul Hameed v. The State 1987 P Cr. L J 1707 it was held that section 103 makes it mandatory upon the officer about to make a search to call upon two or more respectable inhabitants of the locality in which the place to be searched is situated, to attend and witness the search and if this provision is breached, grave doubt would be cast on the whole transaction. In the case of Ashique Hussain Chandio P L D 1992 Kar. 5. the view taken was that the provisions of Chapter VII of Cr.P.C. make it clear that they relate to the search of any place. It was held that said provisions cannot be restricted only to a house or a closed place, but they would apply to even an open place, an open area, a playground etc., from where recovery can be made for which search is conducted. In the case of Yameen Kumhar P L D 1990 Kar. 275 it was held that provisions contained in section 103, Cr.P.C. are mandatory and the same cannot be ignored or brushed aside on the whims and caprices of the Investigating Officer except on well-founded grounds and in exceptional cases. It was also held that the recovery has been made in contravention of section 103, it is the duty of the prosecution to explain it and give valid anal reasonable explanation for such digression. It was also held that recovery is an important piece of evidence which is to be proved by disinterested, independent and respectable witnesses of the locality. In view of the authorities cited at the Bar and in view of the quality of evidence that has been adduced from the prosecution side, the conviction of the appellant cannot be sustained. Consequently this appeal is accepted and conviction and sentence of the appellant is set aside and he is ordered to be released forthwith if not required in any other base. Such short order was passed on 21-7-1993 and these are reasons for the same. N.H.Q./Z-216/K????????????????????????????????????????????????????????????????????????????????? Appeal accepted.