1980 P Cr (PLP)

Atta‑ur‑Rehman petitioner was tried by Summary Military Court No. 21, Gujrat, for offences under Martial Law Regulations Nos. 13, 18 and

33. He was convicted by the said Summary Military Court vide its order dated 11th January, 1979 and sentenced to 9 months' rigorous imprison ment and a fine of Rs. 5,

000. In default of payment of fine he was ordered to undergo further rigorous imprisonment for a period of 3 months. The petitioner has assailed his conviction and sentence by means of this writ petition. This judgment will dispose of the same.

2. It was alleged by the prosecution that the petitioner attempted to create disaffection towards the Armed Forces in that he, between the night of 5th and 6th August, 1978 at 1‑15 a. m. at Flashman Hotel, Rawalpindi, was found to be in possession of a booklet entitled "General Zia Ki Taqreer Ka Post‑mortem" and (2) "Reply to General Zia's speech of June 25, 1978". The said booklet contained material seeking to bring into hatred and tended to excite disaffection towards the Armed Forces of Pakistan and to create alarm and despondency amongst the public. He was further charged for propagating the cause of a political party prejudi cial to the purpose for which Martial Law was proclaimed and that he was distributing directly or indirectly material pertaining to a cause of a politi cal party.

3. Prosecution produced Syed Fida Hussain, Magistrate 1st Class, P. W. 1 ; Muhammad Khalil Sub‑Inspector, P. W. 2 ; Ameer Ahmed Sub‑Inspector, P. W. 3 ; Haq Niwaz Kiani Deputy Superintendent of Police, P. W. 4 : Abdul Aziz Inspector, P. W. 5 in support of its case.

4. The petitioner when examined denied the allegations against him. He stated that he was working as Private Secretary to Mr. Yahya Bakhtiar and that he was residing in Peoples Lawyers Chambers with other members of the staff. On 5th August, 1978 he was told by Mr. Yahya Bakhtiar to shift to Hotel Flashman where he himself was staying. Accordingly he shifted to Room No. 56 of the said Hotel. On the night of occurrence when he was present in his room there was a knock at his door. He open ed the door and found one Deputy Superintendent of Police, one Inspector and 10/12 police constables present outside the door. The Deputy Superintendent of Police showed him two pamphlets captioned :‑ (1) "General Zia Ki Taqreer Ka Post‑mortem" (2) "Reply to General Zia's speech June 25, 78", and asked him whether he had any more in his possession. He further stated that he denied having been possession of any such booklets. There after the Deputy Superintendent of Police ordered the search of the room. The room along with its bathroom was thoroughly searched but nothing could be found. No search warrants were shown to him. Thereafter the Deputy Superintendent of Police ordered the Inspector to take him to Police Station Saddar. He was taken there and tortured by the police. He was asked to confess the possession of the two booklets mentioned above. He, however, refused to do so. He was produced before a Magistrate on 6th August, 1978 at his residence who remanded him to police custody. He was taken to Lahore Fort where he was kept till 20th August, 1978. He was tortured and compelled to make a confessional statement. Thereafter he was removed to District Jail Gujrat. He produced three witnesses in his defence. Ghulam Qadir, D. W. 1, stated that he was confined in Lahore Fort on 8th August, 1979 when the Deputy Superintendent of Police introduced the accused to him as one Atta‑ur‑Rehman. He had not known the accused previously. He denied that it was he who during the investigation of the case had disclosed to the police that the objectionable pamphlets/ booklets were given to him by Atta‑ur‑Rehman, the present petitioner. Mohammad Aslam. D. W. 2, stated that he was present at Flashman Hotel on the day of occurrence when the police came to search the room of the petitioner. Mr. D. M. Awan, Advocate, was also present there. Mr. D. M. Awan asked the police officials for the production of search warrants. It was there that a servant. of the hotel came running and told them that the police had arrested Atta‑ur‑Rehman, the present petitioner. D. M. Awan Advocate, D. W. 3, deposed that on the day of occur rence he was staying in Room No. 42, Flashman Hotel, Rawalpindi, in connection with the appeal of Mr. Z. A. Bhutto which was being heard by the Supreme Court of Pakistan. The police party which was headed by one Deputy Superintendent of Police raided the premises of the Hotel. The police also arrested Atta‑ur‑Rehman petitioner who was working as Secretary to Mr. Yahya Bakhtiar and was living Room No.

56. He asked the Deputy Superintendent of Police and the Magistrate for the, authority under which this raid was conducted. No such search warrants were shown to him. On the other hand he was told that the petitioner was being arrested in connection with a case registered at Police Station, Gujrat. He asked for a copy of the F.I.R. but the police party refused to show him that. He further added that no recovery of any incriminating material was made in his presence. He further stated that the Deputy Superintendent of Police was already having two pamphlets in his hand. In answer to a Court question Mr. D.M Awan, D. W. 3, further stated that Mr. Peter Gilani and Haroon were working as Personal Assistant and Steno, respectively and were living in that room with their typewriters for their use.

5. Record of the case has been produced by Mr. Khalilur Rehman Ramdey, learned Assistant Advocate‑General and the same has been perused with the help of the learned counsel for the parties and arguments heard. Syed Fida Hussain, Magistrate, P. W. 1, accompanied the police when the petitioner was arrested from Room No. 56, Flashman Hotel, Rawalpindi. It was in his presence that the Rooms No. 56 and 43 of the said Hotel were searched. There is nothing on the record to indicate that any formal order was passed by any authority or that any search warrants were obtained by the police or by this Magistrate for the search of his room. There is nothing on the record to indicate that provisions of section 165, Cr. P. C. or for that matter provisions of section 103, Cr. P. C. were complied with. The F. I. R. in this case also referred to sections 53 and 54 of the Press and Publications Ordinance, 1963. There is a specific provision in the form of section 39 of the Press and Publications Ordinance which deal with the power of search warrants. This section empowers the District Magistrate to issue warrants to a police officer not below the rank of Sub‑Inspector to enter upon and search the premises where the objectionable material may be stored. Obviously the provisions of section . 39 had not been .complied with .either. It has been held in a number of cases that where safeguards provided by section, 165, Cr. P. C. are not followed search is without jurisdiction and bad in law. Reliance in this regard is placed upon Emperor v. Muhammad Shah (48 Cr. L J 161). Syed Fida Hussain, P.W. 1, had stated during cross‑examination that nothing was recovered or taken into possession by the police from Room No. 56 from which the petitioner had been arrested. Haq Niwaz Kiani Deputy Superintendent of police, P.W. 4, had also admitted that during the search of his room (Room No. 56) nothing objectionable was recovered. The two objectonable booklets/pamphlets had been recovered during the arch of Room No.

43. There is evidence that this Room No. 43. was being used as an office by the team of lawyers namely, Mr. Yahya Bakhtiar, D. M. Awan, Ghulam Ali Memon and other Advocates defending Mr. Z. A. Bhutto in the Supreme Court of Pakistan. Abdul Aziz Inspector, P.W. 5, had categorically stated that this room was being usad as office and that there were many documents pertaining to various cases in this room and that there was no bedding there. 'Mr. D. Mr. Awan, D. W. 3, stated that Peter Gilani and Haroon were working as Personal Assistant and Steno respectively and were living in that room with their type‑writers for their use. It is also in evidence that the petitioner was acting as Secretary to Mr. Yahya Bakhtiar. Thus it is established from this evidence that nothing whatever was recovered from Room No. 56 which was in the possession of the petitioner. Two objectionable pamphlets were recovered from Room No. 43 which was being used by Mr. Yahya Bakhtiar and his other colleague Advocates as office. Besides, Mr. Atta‑ur‑Rehman, the present petitioner, one Mr. Peter Gilani Personal Assistant and Mr. Haroon a Steno were using the said Room No.

43. The prosecution has thus failed to establish that Room No. 43 was in the exclusive possession of the petitioner. It is established law that where an incriminating article is found in a place in possession o more than one person, it is not possible to fix liability on any particular individual. The mere fact that a person points out a place where property is concealed, if that place is not his own, would not justify the Court in drawing the conclusion that the person who pointed out the article had retained it, nor does the mere knowledge of the place of concealment would necessarily lead to the conclusion that the person having such knowledge participated in the act of concealment. Reliance in this regard is placed upon Das Ram Gehla Ram v. Emperor (A I R 1941 Lah. 471), Crown v. Santa Singh (I L R 26 Lah. 137) and Muhammad Shafi v. State (1173 P Cr. L J 1066). It may also be noted that no public witness has come forth to support the case of the prosecution. No person from the public or from the Hotel Management was called by the police to witness the recoveries alleged to have been effected from the petitioner. This is a clear violation of section 103 of the Code of Criminal Procedure. Recoveries in this case are sought C to be proved by the Investigation Officer and the Magistrate who accompanied the police. All these persons are interested in the conviction of the accused. These recoveries have not been proved by disinterested witnesses. Therefore, the same can be brushed aside as ingenuine. Reliance in this regard is placed upon Pehlwan and others v. The State (1975 P Cr. L J 1096).

7. In view of the afore‑mentioned discussion I hold that this is a case of no evidence and that the petitioner could not be convicted by any reasonable person on the kind of evidence adduced by the prosecution in this case. The conviction and sentence of the petitioner is set aside. He would be set at liberty forthwith unless he is wanted in some other criminal case. This writ petition is accepted. There would be no order as to costs. Petition accepted.