P L D 1998 Lahore 401 (PLP)

MUHAMMAD NASEEM CHAUDHRI, J.--This appeal is directed against judgment dated 5-10-1992 passed by Ch. Zahoor Hussain, Judge, Special Court, Suppression of Terrorists Activities, Gujranwala Division, Gujranwala whereby he convicted and sentenced Mohsin Atta appellant son of Ch. Atta Ullah, caste Jat Warraich, resident of Chauranwali, District Gujrat to undergo rigorous imprisonment for a period of 5 years and to pay a fine of Rs.20,000 or in default of its payment to further undergo R.I. for a period of six months under section 13 of the Arms Ordinance, 1965.

2. The facts giving rise to this appeal are narrated in complaint Exh.PB sent by Umar Farooq Bhatti, D.S.P., Phalia, District Gujrat (P.W.2) to the S.H.O., Police Station Parianwali on the basis of which Ghalib Hussain Moharrir; A.S.I. of the said Thana (P.W.3) prepared formal F.I.R. Exh. PB/1. It is narrated in Exh.PB that he (complainant P.W.2) in the company of Mr. Khadim Hussain Bhatti, A.S.P., Kharian Circle, District Gujrat P.W.1, Mr. Kamal-ud-Din A.S.P., (under training) Syed Zawar Hussain Shah, D.S.P: Mandi Bahauddin, Abdul Hamid Kiyani D.S.P., City Gujrat, Syed Shabbir Hussain Shah, Inspector C.I.A., Gujrat, Syed Riaz Ali Shah, Inspector/S.H.O., Police Station Parianwali P.W.7, Tahir Mahmood S.I., Mazhar Hlassain Shah, S.I. Ghulam Haider S.L, C.I.A., Gujrat and Abdur kasool, A.S.1./Reader to D.S.P., Mandi Baha-ud-Din alongwith 40 Constables were present in Mauza Chauranwali in connection with the investigation of Crime Case No.185 registered at Police Station Parianwali on 10-5-1990 under section 216, Pakistan Penal Code. They entered the residential house of Mohsin Atta appellant and went to his bed-room. Umar Farooq Bhatti, D.S.P. P.W.2 took into possession klashinikov P-1 with two magazines P-2/1-2 containing 140 rounds P-3/140, 9.22 bore rifle P-4, two magazines P-5/1-2, 25 rounds P-6/1-25 and rifle G-III bore P-7 and 285 rounds P-8/1-285 vide memo. Exh.P-A attested by Mr. Khadim Hussain Bhatti, A.S.P. P.W.1 as well as Syed Zawar Hussain Shah, D.S.P., Mr. Kamal Din, A.S.P. (under training) and Abdul Majeed D.S.P. (all three not produced). He prepared site-plan Exh.PC of the place of recovery. Riaz Hussain Shah, S.H.O. Police Station, Parianwali P.W.7 submitted application Exh.P.W.-7/A to the Ilaqa Magistrate and obtained warrant Exh,P.W.4/A which he handed over to Muhammad Anaar, Constable P.W.4 to effect the arrest of Mohsin Atta appellant who had become an absconder. Exh.P.W.4/B was the proclamation and a copy of the same was pasted on the door of the Court at Phalia. The report of Muhammad Antar Constable P.W.4 is Exh.P.W.4/C and Exh.P.W.4/D. Muhammad Nawaz, A.S.I. P.W.6 arrested Mohsin Atta appellant on 25-9-1991 and sent him to the Judicial lock-up on 26-9-1991. Muhammad Hanif Naseem, Fire-arms Expert, Forensic Science Laboratory, Lahore (P.W.51 examined klashinikov P-1 in the Court on 26-7-1992 and gave his opinion that the same was automatic rifle of 7.62 mm bore commonly known as klashinikov. Muhammad Nawaz, D.S.P. P.W.8 investigated the case and recorded the version of Mohsin Atta appellant. A brother-in-law of the appellant produced before the said D.S.P. the affidavits of some persons about the innocence of the appellant, some licences of the firearms in the names of the accused, photostat of the visa of the accused and the record of Pilot Hotel, Rawalpindi showing his presence there on the day of alleged recovery. Before him it was pleaded on behalf of the appellant that he had left for London on 11-5-1990. After completing the investigation the S.H.O. submitted the challan before the trial Court.

3. Mohsin Atta appellant was charged under section 13 of the Arms Ordinance, 1965 who pleaded not guilty thereto. At the trial the aforesaid witnesses stood in the witness-box and supported the prosecution case. When examined under section 342 of the Code of Criminal Procedure the appellant termed the alleged recovery of unlicensed klashinikov P-1 as false who did not own the same. He took up the plea that he was.not present in the village on 10-5-1990 who had gone to Peshawar on 8-5-1990 from where he arrived at Rawalpindi on 10-5-1990, purchased the dollars, stayed in Pilot Hotel, Rawalpindi and left for London on 11-5-1990. He took up the plea that one Ch. Faiz Muhammad was his political adversary in the area and due to his influence he was falsely involved in this case without any legal justification. He took up the stand that rifle 30.06 bore was owned by his brother-in-law Haji Muhammad Tabrez who was its licence-hblder and he had arrived in his house. He expressed that .22 bore rifle was his licensed rifle.

4. Akhtar Hussain Jaffari D.W.1 is a cousin and brother-in-law of Mohsin Atta appellant who stated that he intimated the Superintendent of Police, Gujrat that Mohsin Atta was involved in a false case who had gone to London. Haji Muhammad Tabrez D.W.2 is the brother of the wife of Mohsin Atta appellant who-stated that he came to the house of Mohsin Atta who had left on 8-5-1990 at 8-00 a.m. to go to abroad and that in his absence the police raided his house who also took away his licensed rifle. Irshad Ullah D.W.3 stated that he visited the house of Mohsin Atta on 10-5-1990 when the police took away two rifles from his house and went away. Muhammad Ashraf retired A.S.I. D.W.4 claimed that he also partly investigated this case and visited Pilot Hotel, Rawalpindi where he checked the record about the stay of Mohsin Atta appellant. Muhammad Yaqoob D.W.5, a Sub-Manager in Grindlays Bank, . Rawalpindi, stated that on 10-5-1990 Mohsin Atta accused received 200 dollars from the Bank. Shabbir Ahmad D.W.6 is the Manager of Pilot Hotel, Rawalpindi who stated that Mohsin Atta booked the Hotel for 24 hours at 2-00 p.m. on 10-5-1990. Atta Ullah D.W.7 is the father of Mohsin Atta appellant who stated that Mohsin Atta lived in Village Chauranwala alongwith his family members, that there w$re eight rooms on~the first floor, that his son Mohsin Atta had left for Peshawar to enquire about the health of an ailing relative on 8-5-1990 and that on 10-5-1990 he was not present in the house when the police raided the same. The appellant produced different documents Exh.D.C. to Exh. D.W.-20/2, the photostats of different documents out of which Exh.D.C. is a photostat of F.I.R. No.185 registered on 10-5-1990 at 8-20 p.m. under section 216, P.P.C. at Police Station Parianwali, District Gujrat on the ground that one Sikandar, fugitive of law, involved in Criminal Case No.86 of 1989 under section 302, Pakistan Penal Code registered at Police Station Parianwali was seen, having his dinner, by Umar Farooq Bhatti, D.S.P. and police party when both the aforesaid Sikandar and Mohsin Atta (appellant) fled away on a mare on seeing the police party. It is proper to express that the aforesaid police officers mentioned in this judgment pertaining to F.I.R. No.186 dated 10-5-1990 registered at Police Station Parianwali are also mentioned as the persons present at the time of the aforesaid raid, after which aforesaid F. I. R. No. 185 dated 10-5-1990 was registered.

5. After hearing the parties the trial Court gave the weight to the raid of the police, recovery of unlicensed klashinikov P-1, statements of the recovery witnesses and the alleged abscondence of the appellant. Consequently the appellant was convicted as narrated above. He has preferred this appeal which has been resisted by the State.

6. We have heard the learned counsel for the appellant as well as the learned State Counsel and gone through the record before us. The contentions of the learned counsel for the appellant are that fake and false proceedings were conducted, that F.I.R. No. 185 dated 10-5-1990 was registered at Police Station Parianwali at 8-20 p.m. under section 216, Pakistan Penal Code which was said to be under-investigation when the alleged recovery of klashinikov P-1 was effected regarding which the complaint was sent at 8-00 p.m. He clarified that the complaint about the recovery of klashinikov P-1 could not be sent at 8-00 p.m. when the earlier F.I.R. was registered at 8-20 p.m. under section 216, Pakistan Penal Code. He maintained that no search warrant was obtained and it is a case of transgression of authority on the part of the police officers. According to him Mohsin Atta appellant had left the village on 8-5-1990 for Peshawar who went to Rawalpindi on 10-5-1990 and his presence in the house alongwith Sikandar, fugitive of law, mentioned in F. I. R. No. 185 of 1990 (copy Exh.D.C.) could not be expected. He pointed out that it is a case of political victimization at the instance of Ch. Faiz Muhammad adversary in the political field .especially when about 50 police officers/officials participated while illegally entering the house of the appellant. On the contrary learned counsel for the State laid the emphasis that the police was justified to enter the house of Mohsin Atta appellant on 10-5-1990 without any search warrant as he was found alongwith one Sikandar, fugitive of law, of Crime Case No.86 of 1989 registered at Police Station Parinawali under section 302, Pakistan Penal Code. He maintained that the police officers are as good witnesses as the persons from the public and that the conviction against the appellant has rightly been recorded. We are of the view that the reasoning adopted by the learned counsel for the appellant has to prevail. Legally under section 54 of the Code of Criminal Procedure an accused involved in cognizable offence can be arrested by the police without warrant. If any fugitive of law is in a house the police is empowered under section 47/48 of the Code of Criminal Procedure to ewer the house with the reservation that the females are to be provided the opportunity to retire from the place keeping in view their prestige and honour. It is important to note that about the initial raid to arrest Sikandar absconding accused of Crime Case No.86 of 1989 registered under section 302, Pakistan Penal Code at Police Station Parianwali from the Dera of Mohsin Atta, there is nothing in the statements of Khadim Hussain Bhatti, A.S.P. P.W.1 and Umar Farooq D.S.P. (complainant) P.W.2. In the instant matter entry in the Dera of Mohsin Atta appellant was allegedly made on 10-5-1990 before 7-30 p.m. on the basis of secret information -about the presence of one Sikandar absconding accused of the aforesaid F.I.R. 86 of 1989. However, no copy of the said F.I.R. No.86 of 1989 was adduced in evidence by the prosecution to justify the said stand/contention of the Police. Without that it cannot be held that free legal hand was available to the police to enter the Dera of Mohsin Atta appellant. Mere writing in the matter in F.I.R. No.185 dated 10-5-1990 registered under section 216 is not enough to enable the police officers to enter the Dera of Mohsin Atta appellant which even otherwise has been claimed to be owned by his father Atta Ullah D.W.7. It is pertinent to mention that fromt he Dera of Mohsin Atta appellant situated in Chauranwali after the alleged completion of the proceedings about the arrest of Sikandar absconding accused and preparation of complaint. the relevant complaint was sent at 7-30 p.m. to the S.H.O., Police Station Parianwali which was at a distance of 6 miles from the said Dera. The entry of this complaint was made on 10-5-1990 at 8-20 p.m. in the daily diary at report No. 29 of the said 'Thana'. Thereafter, F. I. R. No. 185 (copy Exh.D.C.) was formally prepared which keeping in view the recitals must have consumed at least half an hour. At the foot of the said F. I. R. No. 185 it is mentioned that a copy was being sent to D.S.P., Phalia. Keeping in view the distance of 6 miles between Police Station Parianwali and Village Chauranwali it cannot be expected that copy of F.I.R. No. 185 reached Parianwali before 8-00 p.m. It is not in the record that the number of F.I.R. recorded under section 216 and mentioned at No. 185 was intimated by the Thana clerk to Umar Farooq Bhatti, D. S. P. in the Dera/house of Mohsin Atta appellant on wireless. In this view of the matter it is simply surprising that in complaint Exh.P.B. of the instant criminal case it is mentioned that it was during the investigation of Crime Case No. 185 registered at Police Station Parianwali under section 216, Pakistan Penal Code that the raid was effected and unlicensed klashinikov P-1 was recovered. In this regard complaint Exh.PB of this case is referred to wherein it is narrated that the same was prepared before 8-00 p.m. and was sent at 8-00 p.m. to the S.H.O., Police Station Parianwali for the registration of the formal F.I.R. It is proper to repeat that if previous complaint was entered in the daily diary of Thana at 8-20 p.m. and thereafter, F. I. R. No. 185 dated 10-5-1990 was prepared how it was possible to send the complaint Exh.PB at 8-00 p.m. after recovery of unlicensed klashinikov P-1 and thereafter, the complaint sent at 8-00 p.m. was entered in daily diary of Thana at 8-55 p.m. on the basis of which formal F.I.R. Exh.PB/1 was prepared. The aforesaid analysis and dissection of the matter is enough to establish that the proceedings conducted by the Police Officers in the instant F.I.R. No.186 dated 10-5-1995 are false which were based on false complaint Exh.PB.

7. In the complaint, exaggeration has been made about the alleged recovery of many illicit weapons (arms) while during the trial only klashinikov P-1 was asserted to be without licence. Thus, the initial stand of the appellant that his and that of his brother-in-law's licensed rifles were also taken into possession by the Police is correct and rather this fact has also been determined by the Trial Court in his favour.

8. It was admitted by Umar Farooq Bhatti, D.S.P. D.W.2 that no search warrant was obtained to raid the house of Mohsin Atta. It has already been dissected and held that due to the non-production of the evidence regarding the raid on the house of Mohsin Atta for the arrest of Sikandar absconding accused the said fact has not been proved. As such without the search warrant the Police could not enter the house of Mohsin Atta appellant and it was a case of transgression of authority on the part of the Police as has become usual in the Province of the Punjab for the last about two decades ignoring the fact that the Article 14 of the Constitution of Islamic Republic of Pakistan, 1973 provides that the dignity of man and, subject to law, the privacy of home, shall be inviolable. The important aspect of the matter is that Mohsin Atta appellant was not the accused of any case before the entry of the police in his Dera and in his house including his bed-room. It shall not be out of place to express that Atta Ullah D.W.7, father of Mohsin Atta appellant, has claimed to be owner of the house with whom the appellant lived as his son in the joint family. In such a state of affairs there was do justification on the part of the police to enter the Dera as well as the house of Mohsin Atta appellant without search warrant. This aspect of the matter is enough to make me hold that all the proceedings in the matter not only are violative of law, the same offend the legal ethics; moral and human rights.

9. It is in the statements of Khadim Hussain Bhatti, A.S.P., P.W.1 and Umar Farooq Bhatti, D.S.P.~P.W.2 that the raiding party was arranged in Gujrat in the Office of the Superintendent of Police, Gujrat at noon when all the police contingent was present which raided the house of the appellant. It is also in their statements that about 50 police officers/officials took part at the time of the raid. The recovery memo. Exh.P.A. was prepared by Umar Farooq Bhatti complainant P.W.2 and attested by Khadim Hussain Bhatti P.W.1 as well as three other superior police officers, not produced during the trial. Since programme in the matter of raid was chalked out much earlier at noon time and the raid was effected thereafter at 8-00 p.m. there was sufficient time with the Police to associate some respectable persons of Village Chauranwali. or the surrounding area for the purpose of the compliance of the mandatory provisions of section 103, Code of Criminal Procedure according to which the occupant of the place/house could also be asked to attend which fact in the matter is missing even though the females and the servants of the house were present when the Police entered the house of the appellant. Since the raid/recovery was planned well in advance, it was the duty of the prosecution to make out as to why the witnesses of the public were not associated. In this view of the matter at this stage I have to express that the Registrar, Supreme Court of Pakistan, Rawalpindi addressed a letter dated 20-8-1990 to the respective Inspector-General of Police, Punjab, Sindh, N.-W.F.P. and Balochistan, a copy of which was sent to all the District and Sessions Judges in the Province of the Punjab by the Registrar, Lahore High Court, Lahore. The aforesaid letters are reproduced in toto as under:- "J. B.32-R(S)/88-SCJ" SUPREME COURT OF PAKISTAN RAWALPINDI, AUGUST 20, 1990 From The Registrar, Supreme Court of Pakistan, Rawalpindi. To (1) The Inspector-General of Police, Punjab, Lahore. (2) The Inspector-General of Police, Sindh, Karachi. a (3) The Inspector-General of Police, N.-W.F.P., Peshawar. (4) The Inspector-General of Police, Balochistan, Quetta. SUBJECT: WITNESSES OF RECOVERY IN CRIMINAL CASES Dear Sir, It has come to the notice of this Court that in a large number of criminal cases, the witnesses of recovery are from the police force and that the Police Officers concerned when appearing before the Court are often unable to give satisfactory explanation, why they failed to associate witnesses of the public in a case where the raid/recovery was planned well in advance. This Court has, therefore, directed that the requirement of associating non-officials witnesses in such cases should be impressed upon all concerned.

2. The Court has also directed in this context that the Courts should also examine two aspects of the issue in such cases. Is there a plausible explanation for not associating witnesses from the public; and whether some features of the cases in addition to the ocular account given by the police official support the prosecution version when denied by the defence.

3. It is requested that the above orders of this Court should be brought to all concerned for strict compliance. (Sd.) (M.A. LATIF) LAHORE HIGH COURT, LAHORE No. 17712-Genl. / I -G Dated Lahore, the 20th December, 1990 From The Registrar, Lahore High Court, Lahore To All the District and Sessions Judges in the Province of Punjab. SUBJECT: WITNESSES OF RECOVERY IN CRIMINAL CASES Sir, I am directed to forward herewith a copy of Letter No.J.P.32-R(S)/88SCJ, dated 20-8-1990 received from the Registrar, Supreme Court of Pakistan, Rawalpindi, on the subject noted above, for information and strict compliance by all concerned. Your obedient servant (Sd.) Deputy Registrar (Adorn.) for Registrar. Endst: No. 17713-Genl./1-G, dated Lahore, the 20th December, 1990 A copy is forwarded for information to: The Registrar, Supreme Court of Pakistan, Rawalpindi, with reference to his Letter No.J.P.332-R(S)/88-SCJ, dated 20-8-1990. (Sd.) Deputy Registrar (Adm, for Registrar.

10. The ,aforesaid directions issued by the Registrar, Supreme Court of Pakistan have to be complied with by all the Police Officers of all the ranks and same cannot be ignored thereof. We have to express that this Court is also bound to follow the instructions mentioned in the aforesaid letter dated 20-8-1990. If the directions contained in the aforesaid letter are not complied with, the recovery of the instant nature need not be given the legal weight and legally the accused involved in the matter shall derive the legal benefit. There being no plausible explanation in not associating the witnesses of the recovery from public available at the time of the alleged recovery and even no effort having been made, it is enough to make out that the alleged recovery of klashinikov from the house of Mohsin Atta appellant is false and concocted. 11. .The plea of Mohsin Atta appellant is that he was not present when the Police entered the bed-room of the house. There is no evidence on record that the appellant was present with Sikandar absconder who fled away and that even, thereafter, he was present in his house. In the statements of the P. Ws. the presence of Mohsin Atta appellant in the house is not narrated. Thus,. the statements of the D.Ws. that Mohsin Atta appellant left Chauranwali on 8-5-1990 is not disputed who, as expressed above, was not present in his house at the time of the raid when klashinikov P-1 was recovered. It would be proper to repeat that his departure alongwith Sikandar absconding accused of the murder case has not been established by the prosecution. The statements of the D.Ws. about his arrival in Peshawar and then in Rawalpindi where he purchased the dollars and stayed in Pilot Hotel are thus, entitled to due weight and this aspect of the matter has also made us to hold that the case of the prosecution is false.

12. No doubt during the course of his statement on 25-7-1992 Umar Farooq Bhatti, D.S.P. complainant P.W.2 stated that he was prepared to make a special oath on the Holy Book that his statement was truthful; yet this aspect of the matter is of no help to the prosecution against Mohsin Atta appellant-convict as according to section 163 of the Qanun-e-Shahadat, 1984 the acceptance or denial of an assertion op oath does not apply to laws/offences relating to the enforcement of Hudood or other criminal cases. No presumption in favour of the prosecution in this regard can be drawn and this aspect of the matter has no legal force against the appellant.

13. According to Mohsin Atta appellant due to political differences with one Ch.Faiz Muhammad he was falsely involved in this case. He has made his detailed statement when examined under section 342 of the Code of Criminal Procedure. In view of .what has been expressed and held above and the fact that about 50 police officers/officials are said to have raided his house, the aforesaid assertion has the factual weight. Without search warrant the Police could not enter his house as well as his bed-room at 8-00 p.m. Thus, it is a case of transgression of authority as well as violation of law and human rights. This plea of the appellant cannot be brushed aside as required and desired by the learned State Counsel.

14. The disappearance of Mohsin Atta appellant has not been proved by the prosecution. No doubt some evidence has been produced to make out that his warrant of arrest (Exh.P.W.7-A) was got issued under section 24 of the Police Act. The proclamation was pasted on the door of his house and the Court in Phalia. However, the stand of the appellant is that he left for U.K. on 11-5-1990 who has produced the photostat of the visa and the passport. According to Muhammad Nawaz; A.S.I. P.W.6 the appellant was arrested on 25-9-1991. In the circumstances of the matter the abscondence of Mohsin Atta appellant is of no help to the prosecution which even otherwise need not be given the weight as the prosecution has brought a false case against him.

14. The only irresistible conclusion which can be drawn from the aforesaid state of affairs, discussion and analysis/dissection of the evidence is that the prosecution has miserably failed to prove the allegations levelled and the charge framed against Mohsin Atta appellant. He was involved in a false and concocted case. As such he is held to be innocent. We, therefore, accept this appeal, set aside the impugned judgment and acquit Mohsin Atta appellant. He is present before us on bail. His bail bond is cancelled and surety, discharged. H.B.T./M-551/L Appeal accepted