1992 PLP 1511 (MLD)

Date of hearing: 3rd February 1992. MUKHTAR AHMED JUNEJO, J.‑‑‑This is an appeal fled by the State through Advocate‑General Sindh, challenging acquittal of respondents Rais Ahmed Khan and Budho Khan in Special Cases Nos.26/91 and 27/91 ordered by the Judge Special Court Suppression of Terrorist Activities, Hyderabad under a judgment, dated 16‑11‑1991. Cases against the respondents were registered by S.I.P. Sharfuddin, S.H.C. Police Station Kot Ghulam Muhammad on 11‑3‑1991 for offence punishable under section 13‑B of the Arms Ordinance. These cases were off shoot of a case registered at said police station under F.I.R. No.4/1991 on complaint of Inspector Muhammad Akbar of Qasim Rangers. According to the prosecution, on 29‑1‑1991 Captain Faiz Ahmed Khan and Inspector Muhammad Akbar of Qasim Rangers received spy information at their camp Tando Ghulam Ali, that some dacoits were taking shelter in the Otaq of respondent Ahmed Khan Bhurgri in Deh No.346, Taluka Ghulam Muhammad, District Tharparkar. On receiving such information, a party of Qasim Rangers headed by Captain Faiz Ahmed Khan proceeded to said Otaq reaching there at 7 a.m. The party of Qasim Rangers surrounded said Otaq and called upon inmates of the Otaq to surrender by raising the hands above. In response there was firing from the Otaq. The party of Qasim Rangers fired in defence. The inmates of the Otaq managed to come out of the Otaq through back door and tried to escape but they were chased. Two of them namely Rais Ahmed Khan Bhurgri and Budho Khan were caught, while remaining six culprits succeeded in running away. Qasim Rangers recovered one Klashnikov with a magazine loaded with one bullet and one magazine loaded with 25 bullets from Ahmad Khan, while Bhudo Khan was found in possession of one Klashnikov the magazine of which was empty and another magazine loaded with nine rounds. Besides this a .12 bore gun and 19 empties of Klashnikov and five empty cartridges were recovered from the Otaq. Inspector Muhammad Akbar lodged F.I.R. against the respondents and their associates for the. offences punishable under sections 216‑A and 353 of P.P.C. and under Article 324 of Qisas and Diyat Ordinance. Qasim Rangers produced before S.H.O. Kot Ghulam Muhammad, the respondents in custody and the arms and ammunition allegedly recovered from their person. The S.H.O. arrested the respondents and secured the property and registered F.I.R. No.7/91 against Ahmed Khan and F.I.R. No.8/91 against Budho Khan. After due investigation both the respondents were tried separately by the Judge Special Court Suppression of Terrorist Activities, Hyderabad. In each of the cases prosecution examined separately P.Ws. Sharafuddin, Muhammad Akbar, Talib Hussain, Nisar Ahmed 'and Captain Faiz Ahmed Khan. The respondents denied prosecution allegations and pleaded that they were falsely implicated in the case. Rais Ahmed Khan, Exh.14 added that he was arrested from a mosque and not from his Otaq, which was not raided and that he was involved in the case due to enmity with the neighbouring Zamiridars. Ahmed Khan examined himself as Exh.15 and examined in defence Bahadur Exh.16: Respondent Budho Khan, Exh:15 added that he was arrested from the land of Rais Ahmed Khan, with whom the neighbouring Zamindars were inimical. Budho Khan gave his statement Exh.16 on oath but did not lead defence. Under the impugned judgment, learned trial Court acquitted both the respondents who were tried separately. Hence this appeal. Mr. K.M. Nadeem, learned A.A.‑G. for State argued that there was sufficient evidence for conviction of the respondents and that the grounds given by learned trial Court for acquittal of the respondents were not cogent. Dealing with the grounds about non‑compliance of the provisions contained by section' 103 of Cr.P.C. learned A.A.‑G. argued that in the circumstances of this case when the recovery took place at about 7 a.m. it was difficult for Qasim Rangers to procure private witnesses. It was next argued that members of public had developed the tendency of avoiding to become Mashirs in a criminal case and judicial notice of this was taken in the case of Yaqoob Shah v. State PLD 1976 SC

53. Learned A.A.‑G. was of the view that when there was sufficient evidence coming .from officers of Qasim Rangers, the absence of private persons as Mashirs, was not of any consequence. In this respect learned A.A.‑G. also cited the case of Yar Muhammad and others v. State. During the trial of the two cases, prosecution examined some officers of Qasim Rangers namely Inspector Muhammad. Akbar, Havaldar Talib Hussain S.I.P. Nisar Ahmed and Captain Faiz Ahmed. They deposed that on 29‑1‑1991 at 5‑30 a.m. they left for Otaq of Ahmed Khan after having received spy information that some dacoits were sitting and conspiring in said Otaq. In spite of the fact that the officers of Qasim Rangers received information, as mentioned above and they decided to raid said Otaq, they did not consider necessary to join with them any private person of the area. Not only this, but they did not consider it necessary to inform the concerned police about the proposed raid. The officers of 0asim Rangers tried to support the prosecution story and in that process some contradictory statements were also made. For example Captain Faiz Ahmed stated that a single barrelled gun of .12 bore was lying on the ground in the Otaq. As against this Talib Hussain Hawaldar stated that one Klashnikov was lying on the ground in the Otaq. Besides said witnesses prosecution also examined S.H.O. Sharfuddin who is not an eye witness. He simply appeared before Qasim Rangers at Tando Ghulam Ali on 11‑3‑1991 at 10 a.m. to pursuance of direction from his S.P. The alleged recovery took place on 29‑1‑1991 while the recovered articles were handed over to the S.1‑1.0. Shartuddin on 11‑3‑1991. This delay has nowhere been explained and it adversely affects the prosecution case. Even the two F.I.Rs. against the respondents were lodged on 11‑3‑1991. In this way two F.I.Rs. arc belated. The provisions contained by section 103 of Cr.P.C. are mandatory and insists on respectable persons being called to witness the search: It was held in the case of Muhammad Ismail v. State P L D 1979 Kar. 31 that section 103, Cr.P.C. insists on respectable persons being called and there can be no doubt that respectable persons are available in every locality and they can easily be chosen by the police. It was also observed that provisions contained in section 103 of Cr.P.C. are, designed to create a safeguard against possible chicanery and concoction on the part of Investigating Officer and by allowing such provisions to be violated, one is likely only to put a premium on possible false implication, and such a position cannot be lightly countenanced. In the case of Salahuddin alias Bilie v. State 1988 P Cr. L J 2164, the view taken was that where search was made and recovery was effected without associating persons of locality, the mandatory provisions of law as envisaged in section

103. Cr.P.C. had been violated and conviction based on evidence of a person not resident of the locality could not be sustained. Authorities cited by the learned AA.‑G. could have relevance to this case if Otaq of Ahmed Khan was situated at a place where no respectable person of the locality was available or none of the persons of the locality was prepared to act as Mashir or the search was made at an odd hour of the night when nobody was available to act as Mashir. In the present case the search of the Otaq took place during broad daylight and said Otaq was not situated in an isolated place. In the case of Yar Muhammad and others 1992 S C M R 96, it was held that unless from the facts and circumstances of the case it was not possible to obtain Mashir of the same locality where the recovery and arrest was made, prosecution might pick up any other person to act as such, otherwise it was the duty of the investigating agencies to pick up Mashir from the locality itself. In the case of Yaqoob Shah P L D 1976 SC 53, it was observed as below:‑‑ "It is a frequent experience of Criminal Courts that many a gruesome tragedy is enacted, with scores of onlookers around, yet the assassin is allowed to operate without any let or hindrance and is allowed to escape from the scene, with. impunity. Not only that. These independent onlookers are not even prepared to say, in Court what they have seen and thereby risk animosity of the assassin ‑ or his partisans. It is a pity that it is not realized that this callousness is not only cowardly but is also in violation of the Islamic injunctions. Islam imposes a solemn duty upon its followers in unqualified terms to speak the truth, even if that were to conflict with their personal interest or the interest of their kith and kin. This indeed is one of the principal causes of delay in decision of criminal cases:" In the present case the raiding party had prior secret information about the dacoits being present in a particular Otaq and they had enough time to pick up two respectable persons of the locality besides calling the police in aid because by raiding the Otaq they were exercising the powers vesting in police force by the Criminal Procedure Code when Qasim Rangers were not vested with such powers while operating in District Tharparkar and in Badin Districts. For the aforegoing reasons no case is made out for interfering with the acquittal of the respondents. Consequently this appeal stands dismissed in limine. N.H.Q./S‑869/K Appeal dismissed.