1994 P Cr (PLP)

Ss. 8, 9 & 13

Appreciation of evidence

Recovery witnesses were police officials

Despite the recovery having been made from a public thoroughfare no attempt was made to associate any member of the public in recovery proceedings

Conduct exhibited by the accused at the time of his apprehension was not believable

Accused was acquitted in circumstances. Muhammad Asif Khan for Appellant Munir Akhtar Rizvi for the State. Date of hearing: 6th December, 1993. MIAN ABDUL KHALIQ, J: -- Rehmat Ali son of Nawab aged 29 years, was tried by the Special Court, Suppression of Terrorist Activities, Bahawalpur Division, Bahawalpur, and vide its impugned judgment, dated 18-7-1992 the learned trial Court convicted the appellant under sections 8, 9 and 13 of the West Pakistan Arms Ordinance (XX of 1965) and sentenced him to undergo 7 years' R.I. and a fine of Rs.50,000, in default whereof to suffer further R.I. for 1-1/2 years. He was not extended the benefit of section 382-B, Cr.P.C. To assail his conviction and sentence, the appellant has preferred this appeal.

2. The prosecution case is that on 8-5-1992 P.W.4 Ch. Bashir Ahmad S.I./S.H.O. alongwith P.W.3 Dilawar Hussain, A.S.I. and other police constables took into possession Klashnikov P.1, its magazine P.2 and 18 live bullets P.3/1-18 vide memo. Exh.P.C. as the appellant could not produce any licence for the same.

3. To prove the recovery of crime property, the prosecution examined P.W.3 Dilawar Hussain A.S.I. and P.W.4 Ch. Bashir Ahmad, S.I./S.H.O. The appellant denied the prosecution allegations and disowned the crime property and stated that he was innocent and had been falsely involved in the case by the police at the instance of Liaqat Jhone of Chak No.91/P, with whom he had enmity on account of murder and cross-murder. All the P.Ws. were police officials and they had deposed falsely against him. In his statement under section 340(2), Cr.P.C. he stated that he was innocent and he did not want to add anything else in his statement under section 342, Cr.P.C. and the same be read as part of his statement also.

4. Relying on the statements of P.W.3 Dilawar Hussain and P.W.4 Ch. Bashir Ahmad, S.H.O. the learned trial Court convicted and sentenced the appellant as stated above.

5. It is contended that although the recovery was alleged to have been made from a roadside, but no public witness was joined in the recovery proceedings. As both recovery witnesses are police officials, no implicit reliance can be placed on their testimony without some independent corroboration. The learned counsel for the State submits that the police officials are as good witnesses as ordinary persons, therefore, their evidence was rightly acted upon.

6. In the instant case it was alleged that the appellant alongwith other persons was coming on a wagon and the police had blocked the road and had switched off the lights of police vehicle. The appellant was sitting on the front seat of the wagon with the loaded Klashnikov in his hand. The appellant and other persons were apprehended by the police and a case under sections 399 and 402, P.P.C. vide F.I.R. No.81/92 was registered on the same day. P.W.3 and P.W.4 were on patrol duty on 8-5-1992 at about 9-00 p.m. when the appellant alongwith 3 others reached in a wagon and were apprehended. The P.Ws. stated that the appellant had not tried to run away and it is surprising that the appellant and others were coming on a wagon and P.Ws.3 and 4 parked police vehicle at some distance. They could turn back the wagon and run away, but they never tried. Neither the appellant threw out the crime property from the wagon nor tried to run away. The place of recovery is stated to be near an octroi post and there were about 100 houses in a nearby Basti. No Lamberdar, Councillor or respectable inhabitant of the locality was associated in the recovery proceedings. Neither any person from the nearby Octroi Post was associated in the recovery proceedings nor any shopkeeper from the shops was called to witness the recovery proceedings.

7. No doubt the police officials are good prosecution witnesses, but their evidence has to be seen in the peculiar circumstances of the case. In the instant case P.W.4 is not only a party to the case itself, but he is also personally interested in its outcome. He is simultaneously a prosecutor investigator and a witness in the same case. P.W.3 is also a police official, who was working with P.W.4 and in the circumstances, the presence of external witnesses was necessary. The requirement of law is that recovery of incriminating articles should be made in presence of two or more respectable inhabitants of the locality, and the same would be defeated if the recoveries are made by the police officials themselves and no witness is associated in the process of recovery. The Court has to take into account the evidence of Police Officer.

8. In the instant case both the recovery witnesses are police officials. Although the recovery was alleged to have been made from a public thoroughfare, no attempt was made to associate any member of the public in B the recovery proceedings. It is hardly believable that the appellant would keep on advancing in the wagon towards the police even on seeing them and would not have tried to run away or throw away the crime property. He could have E easily thrown away the crime property after spotting the police party.

9. For the foregoing reasons the prosecution evidence is not sufficient and reliable to sustain the conviction. Consequently the appeal is accepted, and conviction and sentence of the appellant is set aside. He is acquitted of the charge and shall be released forthwith if not required in any other case. N.H.Q./R-114/L Appeal accepted.