1988 P Cr (PLP)

The brief facts giving rise to the present appeal are that on receipt of reliable information that Shamshad Ali and Irshad Ali residents of 223-L, Sector II-C-I, North Nazimabad, Karachi have been indulging in preparation of forged National Identity Cards. and Immigration of manpower on forged documents, Mohammad Sadiq Assistant Director F.I.A. Crime Circle-II, Karachi with the assistance of his subordinate staff and Mashirs Yar Mohammad son of Sahib Din R/o B-3, U.K. Apartments University Road, Karachi, and Mohammad Azam Khan son of Abdul Shakoor Khan resident of B-3 U.K. Apartments, University Road; Karachi, raided the house where Shamshad Ali was found present. They recovered 77 National Identity Cards with plastic covers, 82 National Identity Cards without plastic covers, 90 National Identity Cards tampered by removing photographs, and other material which has been mentioned in the F.I.R. The Mashirnama was prepared at the spot in presence of the above Mashirs. Thereafter the accused and the material was taken to the P.S. where report was lodged by Mohammad Sadiq Assistant Director on 25-5-1985 at 11-00 a.m. After necessary investigation the appellant was challaned. A formal charge was framed against the appellant to which he pleaded not guilty. At the trial prosecution examined complainant Mohammad Sadiq P.W.1, he has produced the Mashirnama as Ex. 3-A and F.I.R. as Ex. 3-6, Shamsuddin P.W.-2, S.I.P., Crime Circle No.1, he has produced a letter sent to the Assistant Director Registration Dado for verification of rubber stamps as Ex. 5-A and the reply received as Ex. 5-B. Similar letters were issued to Registration Officer, Karachi West and the letters and replies have been produced as Exs. 5/C to 5/F. Ali Asghar Court witness No.1 was examined by the Court who has produced the summons issued against the Mashirs Yar Mohammad and Mohammad Azam and the same have been produced as Exs.4-A to 4-D. After close of the prosecution case the statement of appellant Shamshad Ali was recorded under section 342, Cr.P.C. in which he denied the allegations. He also examined himself under section 240 (2), Cr. P.C. and stated that he was implicated falsely; and he never resided at the house from which the alleged material was recovered nor it was in his possession. Mohammad Sadiq P.W.1 has supported the contents of his F.I.R. and has produced the Mashirnama as Ex. 3/A. He has produced the F.I.R. as Ex. 3/B. in cross-examination he has deposed that the house of the accused was situated in thickly populated area. He did not pick up any person from the locality to act as Mashir. He did not call for any evidence to show that the house from where the material was recovered belonged to the accused as owner or as tenant. He denied a suggestion that Mashirs Mohammad Azam and Yar Mohammad were stock witnesses. He has admitted that he had registered a separate case under passport and Immigration Ordinance against the accused. He denied a suggestion that he never raided the house of the accused nor secured any property. The Mashirs were picked up by him from New Karachi and the place was about 1 mile away from the house of the accused. No person of the locality was attracted when they had raided the house. Shamsuddin S.I.P. has deposed that he had accompanied Assistant Director Mohammad Saddiq in connection with the raid on the house of the accused. The two Mashirs Yar Mohammad and Mohammad Azam were picked up from near the house of the accused in North Nazimabad. Accused Shamshad Ali was found in the house. On search the material mentioned in the Mashirnama was found from his house and such Mashirnama was prepared by the Assistant Director. Ex. 3/A was the same Mashirnama. The articles and the accused were then taken to the police station where the Assistant Director registered the case on behalf of the State. He (witness) had recorded the statements of the witnesses during the course of investigation. He had forwarded the rubber stamps for verification of their genuiness to Assistant Director Registration Office, Dadu, ano the letter has been produced as Ex.5/A. He had received the reply of the said letter which he has produced as Annexure 'B'. He had written a similar letter to Registration Office Karachi, and had received a reply which he has produced as Lxh.5/C and 5/D. Such letters were issued to Deputy Director Immigration and Passport Karachi, and a reply also was received thereto, he has basis for conviction of the appellant. The learned Assistant Advocate-General for the State has contended that no serious effort was made to procure the presence of private mashirs, and the evidence of two police officers could not be relied upon for the purpose of conviction in view of the above circumstances. I have considered the contentions of the learned counsel. It is an admitted position that the private mashirs although cited in the challan were not examined before the Court. The complainant Mohammad Sadiq and P.W. Shamsuddin are Police Officials, and they were definitely interested in the conviction of the appellant. There is contradiction in the evidence of the two witnesses inasmuch as according to the complainant the Mashirs were picked up from New Karachi a place which was about one mile away from the house from where the alleged material was recovered whereas according to Shamsuddin SIP the mashirs were picked up from Nazimabad a place which was situated nearby the house in question. Admittedly the articles were not sealed at the place of Wardat and no effort was made to pick up Mashirs from locality, for which there is no explanation from the prosecution. In the case of Mohammad Boota v. The State, 1985 P Cr. L J 1378) it was observed by the Federal Shariat Court that: "No witness from locality of raid included in raiding party nor made a witness to attest recovery memo of incriminating articles allegedly recovered from the house of the accused. Mandatory provisions of section. 103, Cr.P.C. held not complied with. And, therefore, conviction and sentence was set aside, looking to the circumstances of the case and the conduct of the complainant that he did not make any effort to pick up Mashirs from the locality. I feel hesitante to put explicit reliance on the evidence of two Police Officers, and therefore, while extending the benefit of doubt to the appellant, the appeal is allowed, conviction and sentence of the appellant is set aside, and he is acquitted of the charge. He is on bail and his bond stand discharged. I had decided the above appeal by a short order on 21-3-1988 and these are the reasons for the same. M.Y.H/S-182/K Appeal allowed.