1995 PLP 592 (MLD)

Date of hearing: 15th June, 1994. MUKHTAR AHMED JUNEJO, J.‑‑‑Appellant Awais Shibli has called in question his conviction and sentence by the Judge, Special Court (Suppression of Terrorist Activities), Hyderabad, in Criminal Case No.34 of 1993 which is outcome of F.I.R. No.1l of 1993 of Police Station Hussainabad. According to said F.I.R. appellant Awais Shibli was already in custody of C.I.A. Police, when on 2‑2‑1993 he was picked up by A.S.I. Abdul Rahim Soomro of Police Station Hussainabad for interrogation. The appellant allegedly volunteered before A.S.I. Abdul Rahim Soomro to produce the weapons allegedly used in commission of Crime No.6 of 1993 of Police Station Hussainabad. Thereafter, on the same date at 7‑55 p.m. the appellant led the police to a ground behind the Public School Unit No.3, Latifabad and produced from there a plastic bag containing a Klashnikov and two magazines and 17 five bullets. The plastic bag containing said articles was lying buried before being taken out after digging the earth. A.S.I. Abdul Rahim Soomro secured the Klashnikov, magazine, bullets and the plastic bag under a Mashirnama. Subsequently, the appellant was taken by A.S.I. Abdul Rahim Soomro alongwith the recovered property to Police Station Hussainabad where a case under Arms Ordinance was registered against him. After due investigation he was challenged. At his trial the appellant pleaded not guilty to the charge Exh.2 containing prosecution allegations. Prosecution examined P.Ws. Abdul Rahim Exh.4 and Ghulam Mustafa Exh.7 and closed side under statement Exh.8. In his statement Exh.9, the appellant denied the prosecution allegations and alleged enmity with the then Government. The appellant explained that it was on the instructions of the then Government that he was arrested so many times, despite his being successful in obtaining the orders from the High Court in his favour. The appellant added that he was arrested on 2‑1‑1990 and then detained without any lawful authority, when his mother filed a petition in the High Court at Hyderabad. That subsequently his brother Shoaib Shibli and his sister‑in‑law also filed petitions for his release. The appellant added that his custody was being shifted from one police station to any other police station to defeat the orders about his release by the High Court. In particular, the appellant referred to an order (copy Exh.10) of the High Court by which he was released on 19‑1‑1993 on furnishing surety. That after his release he was again rearrested by C.I.A. Police and kept blind‑folded before being challaned in this case. The appellant did not give his statement on oath and did not lead any evidence in his defence. At conclusion of his trial, the appellant was convicted for the offence punishable under section 13‑E of the Arms Ordinance and was sentenced to suffer R.I. for five years vide impugned judgment dated 26‑12‑1993. Hence this appeal. Mr. Zahoor Balouch, learned counsel for the appellant argued that conviction of the appellant is based on solitary evidence of two police officers, not supported by any independent evidence. Learned counsel pointed out a contradiction in the evidence of the two Police Officers. It was next argued that the investigating police had not complied with the provisions contained in section 103 of Cr.P.C. inasmuch as not a single private person was made to witness the alleged recovery as a Mashir, although the appellant was picked up from C.I.A. Centre situated at back of the Central Jail and brought to alleged place of recovery which is at the back of Public School in Unit No.3, Latifabad. Learned counsel referred to a D.B. judgment in Criminal Miscellaneous Application No.68 of 1992 and Criminal Miscellaneous Application No.301 of 1992, dated 19‑1‑1993 where it was observed that name of the appellant does not appear in any F.I.R. in which he was involved and that S.H.Os. of different police stations wanted to keep the appellant in detention without evidence against him in spite of the fact that his name does not appear in any F.I.R. Learned counsel for the appellant referred to the case of Amir Ali v. The State 1993 PCr.LJ 457 where both the recovery witnesses in a case under the Arms Ordinance, were police officers and the view taken was that testimony of police officers is treated with incredibility and cannot be believed because firstly the area is sensitive and secondly there are houses near the open plot of recovery. Reliance was also placed on the case of Yar Muhammad and 3 others v. The State 1992 SCMR 96 where it was observed as below:‑‑‑ "Unless from the facts and circumstances of the case it is not possible to obtain Mashir of the same locality where the recovery and arrest is made the prosecution may pick up any other person to act as such otherwise it is the duty of the investigating agencies to pick up Mashir from the locality itself." Learned AA: G. supported the conviction of the appellant and argued that no private person was prepared to act as Mashir and in such circumstances absence of private Mashir of recovery is of no consequence. Learned AA.‑G. was of the view that evidence of a person cannot be rejected simply on the ground that he is police officer. In support he cited the case of Muhammad Naeem alias Neema v. The Stag 1992 SCMR 1617. In presence of observations made by a learned D.B. of this Court on 19‑1‑1993 in Criminal Miscellaneous Application No.68 of 1992 the Investigating Officer who investigated this case on 2‑2‑1993 should have been very cautious in seeing that, some private persons were associated with the recovery more particularly in a case of this nature where entire evidence depends upon the evidence of recovery. In case any private person was refusing to act as Mashir, the police officer could have taken appropriate legal action against him. The concerned police officer ought to have realized, that a D.B. of this Court had observed that S.H.Os. of different police stations wanted to keep the appellant in detention without evidence. In order to make this case distinguishable from the cases in respect of which said observations were made by the learned D.B. the investigating officer was duty bound to make efforts for compliance with letter and spirit of the provisions contained in section 103 of Cr.P.C This has not been done in this particular case. With such background it is difficult to maintain conviction of the, appellant, on the basis of evidence of only two police officers, even if, contradictions pointed out in their evidence are ignored. For the: foregoing reasons, we accept this appeal, set aside the conviction and sentence of the appellant and order his acquittal. He be released from custody forthwith if not required in any other case. N.H.Q./A‑1513/K Appeal accepted