1995 PLP 607 (MLD)

Muhammad Daud A. Baloch for Appellant. Zawar Hussain Jafferi, AA.‑G. for the State. Date of hearing: 29th November, 1994. WAJHIUDDIN AHMED, J.‑‑‑The facts of the case need not be re stated as the same are duly detailed in the impugned judgment of the learned Special Judge (STA), Larkana. All the ;witnesses in the case against the appellant are police officers. Appellant was allegedly apprehended from his house and recoveries allegedly were made upon the appellant himself volunteering to do so. P.Cs. Abdul Ghafoor and Zulfikar are Mashirs but only Abdul Ghafoor has been examined. The other witness in the case is S.H.O. Veehar, Muhammad Suleman. Both Abdul Ghafoor and Muhammad Suleman, P.Ws.l and 2 respectively, have admitted that there are some 80 to 100 houses in the village from where the appellant was apprehended. It is also an admitted fact that there were people of different castes in the village and the explanation that the other villagers, being caste‑fellows of the appellant, did not accede to become Mashirs would, therefore, not hold. Furthermore the police had acted on spy information and the arrest and recoveries were made during day time. Obviously Mashirs could be taken to the site but that too was not done. Besides it is the case of the prosecution that personnel of the Law Enforcement Agency were also associated with the arrest and the recovery. None of them has figured as a witness. While the appellant did not offer himself as a witness, he examined D.W. Niaz Muhammad, who is from the same village as the appellant. Inter alia this witness deposed that no raid was conducted in his village and no arrest or recoveries were made from there. The witness was not questioned about the specific raid in the village at the relevant time pertaining to the incident in question. He was generally asked and replied that police does raid villages in the area but that was not proper cross‑examination on the question. The e witness's assertion that the referred raid did not take place therefore, remained un-rebutted. In the foregoing circumstances, which clearly entail the applicability of the rule in section 103, Cr.P.C., as held in the case of Yameen Kumhar v. State PLD 1990 Kar. 275, we have to view the provision of section 8 in the Suppression of Terrorist Activities (Special Courts) Act, 1975. That section runs thus:‑‑‑ "

8. Burden of proof.‑‑‑Where any person accused of having committed a scheduled offence is found to be in possession of, or to have under his control, any article or thing which is capable of being used for, or in connection with, the commission of such offence, or is apprehended, in the circumstances which tend to raise a reasonable suspicion that he has committed such offence, he shall be presumed to have committed the offence unless he can prove that he had not in fact committed the offence." It will be seen that the incidence of burden of proof on the accused in cases covered by the aforementioned provision in Act XV of 1975 would arise only where a person accused of having committed a scheduled offence is either "found to be in possession of, or to have under his control any article or thing which is capable of being used for, or in connection with the commission of such offence" etc. Thus to fall within the quoted part of section 8 ibid., which is the first part of that section, recovery must be proved appropriately against the accused prosecuted under the Act and unless such recovery is appropriately proved and the requirements of section 103, Cr.P.C. are duly satisfied the incidence of burden of proof would not stand displaced and lie on such an accused person against whom due recovery in the foregoing terms is not shown or established. As to the second part of section 8 of Act XV of 1975, requirement again is that apprehension or arrest of the accused ought to have come about "in circumstances which tend to raise a reasonable suspicion" that the arrested accused had committed a scheduled offence. It is only then that the burden of proof would stand shifted and the (re-buttable) presumption under the section would arise. Neither the recovery nor the arrest has been established to have satisfied the conditionalities of the section 8 aforesaid and the relevant presumption therefore never arose. For such reasons as are recorded above we are satisfied that the prosecution has failed to establish its case before the learned Judge of the trial Court. The conviction is set aside upon the acceptance of the appeal. Appellant would be released from custody forthwith unless required in any other case. N.H.Q./S‑1113/K Appeal accepted.