P L D 2000 Supreme Court 816 (PLP)

(On appeal from the judgment dated 30‑6‑1997 of Balochistan High Court, Quetta, passed in Criminal Appeal No. 124 of 1997). (a) West Pakistan Arms Ordinance (XX of 1965)‑‑‑ ‑‑‑‑S. 13‑E‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Leave to appeal was granted by Supreme Court to accused to consider whether C.I.A. (Criminal Investigation Agency) was not competent to investigate the case and Police was the competent Authority for the same. (b) West Pakistan Arms Ordinance (XX of 1965)‑‑‑ ‑‑‑‑S. 13‑E‑‑‑Criminal Procedure Code (V of 1898), S.156‑‑‑Appraisal of evidence‑‑‑Investigation conducted by C.I.A. (Criminal Investigation Agency) ‑‑‑Validity‑‑‑C.I.A. personnel, despite knowing it very well that they were not empowered to investigate the case, had done so deliberately violating the provisions of S.156, Cr.P.C.‑‑‑Although C.I.A. personnel had prior information about the offence which was likely to be committed, yet they had not passed on this information to the concerned police and took upon themselves the task of investigation which was in violation of law and against the principle of supremacy of law‑‑‑Pistol recovered in the case without any valid explanation was not sent to the Ballistic Expert to find out if it was automatic, semi‑automatic or ordinary‑‑‑Mere submission of charge sheet before the Special Court would not give rise to the presumption that the pistol was semi‑automatic‑‑‑Pistol should have been referred to the Ballistic Expert in order to determine its exact calibre/status, as it was necessary to determine the issue of jurisdiction of the Court‑‑‑Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975, could not proceed with the matter unless it was established that the offence was covered by Schedule of the said Act‑‑‑Necessary procedure at the time of the recovery of the said pistol was also not followed as it was not sealed‑‑‑Identification of the pistol at such stage was not possible and the case could not be remanded to the Court having jurisdiction in the matter as no steps were taken for maintaining its identity‑‑‑Accused was acquitted in circumstances. State through Advocate‑General, Sindh v. Bashir and others PLD 1997 SC 408 ref. Raja Abdul Ghafoor, Advocate‑on‑Record for the State. JUDGMENT NAZIM HUSSAIN SIDDIQUI, J.‑‑Vide order dated 21‑10‑1997 leave was granted by this Court to the appellant to consider whether C.LA. was not competent to investigate and police was the competent authority for the same.

2. This appeal arises from judgment dated 30‑6‑1997 of learned Judge of High Court of Balochistan, Quetta, whereby the judgment dated 26‑5‑1997 of learned Special Judge Suppression of Terrorist Activities, under section 13‑F. of Arms Ordinance, 1965, convicting the appellant and sentencing him to suffer 2 years' R.I. and a fine of Rt_2,000 or in default thereof to further undergo 2 months' S.I., was maintained.

3. The prosecution case, in brief, is that C.I.A. staff consisting of Tariq Manzoor, S.‑I., Maqsood Ahmed, S.‑I., Jan Muhammad S.‑I. Amanullah, A.S.‑I., Akbar Resani, A.S.‑I., Abdullah, Muhammad Ayub and Umar Atta. H_Cs. and others on receipt of spy information intercepted a Vehicle (pick‑up) bearing No.SL‑3743 and recovered from it huge quantity of narcotics and also an unlicensed .30 bore pistol and 34 cartridges. which allegedly were recovered from possession of the appellant. F.I.R. No.73 of 1996 was registered on 27‑4‑1996 and on completion of investigation charge‑sheet was submitted before the Special Judge, Quetta. Separate challan in respect of said narcotics was submitted before this competent Court.

4. On assessment of the evidence brought on record, learned trial Judge convicted the appellant as mentioned earlier. His appeal was dismissed by the High Court, which judgment has been impugned m this appeal.

5. Section 156, Cr.P.C. speaks about the investigation into cognizable case. The subsections (1) and (2) are relevant for this case and are reproduced below:‑‑ "156.‑‑(1) Investigation into cognizable cases.‑‑Any officer incharge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XV relating to the place of inquiry or trial. (2) No proceedings of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate."

6. A plea was raised before the High Court that since investigation was conducted in violation of above section it vitiated entire trial and serious prejudice was caused to the appellant. Learned High Court, dealing with this contention held that in view of subsection (2) (supra) no prejudice was caused to the appellant. While recording above finding, the High Court also referred to the case reported as State through Advocate‑General, Sindh v. Bashir and others PLD 1997 SC 408.

7. In above case a Full Bench of this Court comprising 4 learned Judges examined and determined the scope of section 156, Cr.P.C. Mr. Justice Muhammad Ajmal Mian (as he then was) who authored the main judgment at pages 420 and 421 observed as follows:‑ "The above submission seems to be fallacious. Any alleged illegal practice cannot negate an express provision of a statute. It is unfortunate that a Government functionary which is entrusted with the enforcement of law should be guilty of breach of a provision of law. It is high time that efforts should be made to establish the " supremacy of law instead of relying upon an illegal practice.

18. As regards the question, as to whether the above illegality/irregularity if already committed by the C.I.A. personnel would vitiate the trial, it may be observed that subsection (2) of section

156. Cr P.C expressly provides that: 'No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. It is an admitted position that the C.I.A. is part of the Police Force. It is in fact a special branch carved out from the police force for special purpose. The violation of section 156(1) of the Cr.P.C. may not vitiate trial if no serious prejudice has been caused to the accused person concerned resulting in miscarriage of justice in view of above '.: subsection (2) of section

156. Cr.P.C. but it does not mean that the C.I.A. personnel should knowingly violate the above provision of the Cr.P.C. On the contrary, they are legally duty bound to ensure the supremacy of law."

8. The record reveals that though C.LA. personnel knew it very well that they were not empowered to investigate this matter, vet, they had done so and in this way deliberately violated the provisions of section 156, Cr.P.C. Although they had prior information about the offence which was likely to be committed, yet, they had not passed on this information to the concerned police and took upon themselves the task of investigation which, we feel, was not proper. What they had done was in violation of law and was also against the principle of supremacy of law.

9. The case was tried under the Suppression of Terrorist Activities (Special Courts) Act, 1975 and being a Special Court it could only proceed with the scheduled offence as mentioned in the Schedule of said Act, including the offences under sections 8, 8 and 10 of Pakistan Arms Ordinance, 1965 if committed in respect of a cannon, grenade, bomb or rocket; 150" or a light or heavy automatic or semi‑automatic weapon such as kalashnikov, a G‑III rifle or any other type of assault rifle. It is noted that Special Courts constituted under above Act, are Courts of limited jurisdiction and are only competent to proceed with the matters, which are mentioned in the Schedule of the Act. In this particular case the pistol in question, without any valid explanation, was not sent to the ballistic expert to find out if it was automatic or semi‑automatic or ordinary. Learned A.‑G. before the High Court had contended that since the charge‑sheet was submitted before Special Judge, as such it was to be presumed that it was semi‑automatic. This argument found favour of the High Court and the pistol was treated as semi automatic.

10. We are not inclined to accept above finding. In order to determine the exact calibre/status of the weapon it should have been referred to the expert as it was necessary to determine the issue of jurisdiction of the Court, learned High Court dealing with this point observed that irrespective of the fact that whether it was semi‑automatic or otherwise the appellant was to be tried by a Court and either he would have been convicted or acquitted and so was done by Special Judge. Again, we do not agree with above finding and hold that Special Judge could not proceed with the matter unless it was established the offence was covered by Schedule of the Act.

11. It is noted, as appears from the judgment of the High Court, that at the time of recovery of said pistol necessary procedure in that regard was not followed. It seems that it was not sealed. Identification of said weapon at this stage would, not be possible. Normally we would remand the case to the Court having jurisdiction in the thatter, but now it is not possible as no steps were taken for maintaining its identity.

12. In consequence, the appeal is allowed, impugned judgments of the trial Court and the High Court are set aside, the appellant is acquitted and his bail bond stands discharged. It is, however, made clear here that this judgment would have no effect on the narcotics case, which was registered against the appellant alongwith this case and the same would be decided, on its own merits without being influenced by any observation made earlier. N