P L D 1993 Karachi 337 (PLP)

"I do not know the accused before the date of his arrest. During the time he was on bail he had manhandled me saying that why I was giving evidence against him. Due to his beating, my jaws and teeth were affected. He had also fired at me. Some Mohallah people had intervened and rescued. I had lodged report about this incident at Shah Faisal Colony Police Station.I came to know later that he had been entering houses of the people armed with pistol with criminal intention. He has created tension in the locality." The appellant recorded his statement under section 342, Cr.P.C. in which it was stated that Zafar Farooq, P.W.1 is a stock witness of the police and that he was victimised because the police had suspected him of having connection with MQM. The appellant also gave his statement on oath stating that his father had reported to the higher authorities against the conduct of the police which annoyed it and that the police had raided his house, insulted the female relations and foisted the Klaghnikov upon him. The appellant's father D.W.2 in his deposition supported the version of the appellant further stating that during night in the curfew days of 1988, he and the appellant were arrested by A.S.I. Saeedullah Khalid, P.W.2 and were released on payment of Rs.3,

000. After the re-arrest of the appellant he demanded Rs. 14,000 for his release which he could not pay. He had made complaint against police to the President of Pakistan and received reply vide Exh.18. He also produced the Daily Jang dated 27-5-1988 (Exh.19) which contained news of the arrest of his son alongwith several others, the translation whereof was as under:-- "THE DAILY'JANG'NEWSPAPER DATED 27TH MAY, 1988. Heading: 8 young men arrested in Shah Faisal Colony, Arms recovered. Heading The accused persons al4o opened firing at police in order to avoid arrest. Karachi (Staff Reporter) According to information Shah Faisal Colony's Police raided Juma Buffaloes Pen and arrested 8 young men alongwith explosive substance early in the morning of Thursday. The accused persons who were arrested opened fire at police party, as a result of which two constables viz. Shams and Mumtaz sustained slight injuries. However, the accused persons were not given opportunity to escape. P.S. Incharge of Shah Faisal Colony, Inspector Abdul Sattar Datho alongwith S.I. Muhammad Mohsin and S.I. SaeeduHah by suceessful raiding arrested the accused persons viz. Zahid alias Zinwa, Muhammad Arif, Arif,Siddiqi Niaz Ahmed, Mazhar Ali, Muhammad Hanif, Ather and Rafique. Besides these are Klashnikov, one Rifle of .12 bore, three pistols, one revolver and three cartridges were recovered. According to police the accused persons are involved in the Vardats of dacoity and theft, while there are already registered cases against the accused persons Zahid and Rafique. During the investigation the police expects further disclosures. S.S.P. East Babat Khatab announced cash award and appreciation certificates to the personnel in respect of arrest of the accused persons." D.W. I Shamim, mother of the appellant and D.W.3 Liaquat, a neighbour of the appellant also deposed to the effect that the police had entered the house of the ppellant during night and beaten him up mercilessly and that no weapon was recovered either from the house or from the appellant. The rationale which prevailed upon the learned Special Court to convict the appellant firstly was that there was no reason for the police to involve an innocent man in the offence in question. Secondly, P.W.1. Mashir Zafar Farooq, is an independent witness and no enmity has been alleged against him and lastly and more importantly there was a news item appearing in the daily Jang of 27th May, 1983, that eight young men including the appellant were arrested in Shah Faisal 'Colony who were armed with weapons and had fired at the police. The learned trial Court failed to take into consideration the appellant's alleged enmity with the police although specifically urged by him. Perhaps he took it as an afterthought as the letter addressed by the appellant's father to the President was subsequent to the appellant's arrest. What, however, cannot be overlooked are a number of glaring discrepancies and calculated improvements on the face of record and many lapses on the part 07 A the prosecution. In the first instance it is pertinent to note that the F.I.R. ' refers nowhere to the appellant's encounter alongwith other boys with police or their sitting together in the bushes which aroused the suspicion of the complainant A.S.I. Saeedullah P.W.2. Similarly there is nothing in his deposition to the presence of the other police party following him in a private Suzuki is stated by P.W.1 War Farooq in his deposition. The object of the A.S.I. Saeedullah P.W.2 as per his own version was to pick up P.W.1 and one Tanwir to act as Mashirs of recovery and arrest of four/five suspected boys in the bushes but the testimony of Zafar Farooq P.W.1 was that he and the said Tanwir were picked up by Saeedullah to become witness to one person only, namely, the appellant. Furthermore, the admission of P.W.1 Zafar Farooq that the appellant had quarreled with him, gave him beating and opened fire at him had gone unnoticed by the learned trial Court. He, therefore, cannot be an independent or uninterested witness and his testimony becomes doubtful. The learned trial Judge in the formation of his decision has referred to the above-quoted news item. He states: "One important docyment produced by D.W.2 Rafiq is a copy of Newspaper 'Jang' dated 27th May, 1988, in which there is a news on the front page saying that eight (8) young men were arrested in Shah Faisal Colony who were armed with weapons and had fired at the police. In this news one of the persons arrested has been named as Zahid Rafiq who can be no other person than the present accused. He was arrested on 26-5-1988 and the news had appeared on the next day i.e. 27-5-1988." According to the learned trial Judge the newspaper under reference is an important document although admittedly it was not proved in accordance with law. What is more is that the appellant's identification stood proved by the newspaper report simply because his name had appeared in it. Such findings are patently erroneous and cannot sustain. Newspaper reporting devoid of personal knowledge of a reporter on the basis of information received by him will be a mere hearsay and is inadmissible in evidence. In Sarup Singh v. Emperor, 26 Cr..LJ 1925, a Division Bench of '-Lahore High Court held as follows: "A newspaper cannot be admitted in evidence without formal proof of the fact that it is what it alleges to be. A mere production of a newspaper is no proof of the truth of its contents. A statement contained in a newspaper unless specifically proved as having been made by a particular person can only be treated as an anonymous statement and merely hearsay and consequently inadmissible in evidence." In Halsbury's Laws of England (Fourth Edition), Volume 17, para 223, page 158 it is stated' "A witness may refer to a newspaper report to refresh his memory, if he read the report at the time when he had a recollection of the statements contained in it and knew them to be true; but a newspaper report is not generally admissible as evidence of the facts recorded in it. R v. Totson (1864) 4 F & F 103; Hindson v. Ashby (1896) 2 Ch.1 CA. Here it may be added and clarified that the Oanun-e-Shahadat, 1984 nowhere envisages presumption as to the genuineness of a newspaper or D journal as was found under section 81 of the repealed Evidence Act, 1872. A newspaper cannot be admitted in evidence as before without formal proof nor it contents shall stand proved unless testified by a witness. The newspaper was produced by the father of the appellant D.W.2, perhaps with a view t r, but the prosecution story as false but it had no evidentiary value and cannot form the basis of the conviction of the appellant as he was not an eye-witness to the incident which he otherwise expressly denied in his deposition. These are the reasons for accepting the appeal and setting aside the conviction and sentence of the appellants vide our short order dated 23-12-1992. N.H.Q./Z-203/K Appeal accepted.