1995 P Cr (PLP)

Muhammad Khan v. Dost Muhammad P L D 1975 SC 607; 1990 P L D SC 1083 and Yar Muhammad Khan and others v The State 1992 SCMR 96 ref 1992 P Cr L J 1287 rel Muhammad Akbar Khan Swati for Appellant Adam Khan Jadoon for the State. Date of hearing: 9th August 1994. Muhammad Akram son of Ali Zaman, appellant was charged and tried under section 13 of the Arms Ordinance before the Special Judge (Suppression of Terrorist Activities), Abbottabad, who convicted and sentenced him for that offence to suffer rigorous imprisonment for three years and a fine of Rs.3,000 or in default to undergo six months' simple imprisonment by judgment, dated 2‑6‑1994, which is being assailed by way of this appeal.

2. The prosecution case, briefly, is that on 15‑8‑1993 at 5‑30 a.m., A.S.1. Mumtaz Hussain Shah P.W.2, accompanied by F.C. Khan Afsar P.W., and L.H.C. Muhammad Anwar, under the direction of S.H.O. Police Station Nara, conducted a raid in Village Baseera for the arrest of proclaimed offender, namely Mohabat in F.I.R. No.18 under section 302, P.P.C: of the aforesaid police station. In consequence, the arrest of the wanted person could not be affected due to non‑availability in his house. However, one) person took to flight from that house towards field, but he was given a chase and eventually apprehended by F.C. Khan Afsar P.W.l A Klashnikov rifle was found on his person and it was loaded with a magazine containing 16 bullets. He gave his name as Muhammad Akram son of Ali Zaman, who is the present appellant. He could not produce licence or permit in respect of Klashnikov, which was, taken into possession vide recovery memo. Exh P.R. in the presence of F.C. Khan Afsar P.W.1 and I.H.C. Muhammad Anwar, not produced, as attesting witnesses. Thereafter a Murasila Exh.P.A./1 was prepared at 5‑30 a.m. and sent to Police Station Nara, where, on its basis, a case under section 13, Arms Ordinance was registered. In support of its case, the prosecution examined F.C. Khan Afsar P.W. and A.S.I. Mumtaz Hussain Shah P.W.2, S.I. Ashiq Hussain Shah P.W.3 and L.H.C. Muhammad Anwar P.W.4. Of them, the L.H.C. registered a case on foot of Murasila while S.I. Ashiq Hussain Shah submitted a challan against the appellant on completion of the investigation. The first two witnesses, however, supported the prosecution story set out above. In his statement under section 342, Cr.P.C., the appellant professed innocence, denied the truth of the charge and ascribed the case against him at the instance of complainant in the murder case referred. His contention is that Ali Dad D.W.1, a resident of village was present at the spot and he was neither associated with recovery nor examined as a witness. After conclusion of the trial, the Special Judge recorded the conviction and sentence imposed on the appellant, as already stated.

3. I have heard learned counsel for the appellant and State counsel and also gone through the record of the case carefully. At the very outset, it was pointed out and urged on behalf of the appellant that there was non- compliance of provisions of section 103, Cr.P.C. inasmuch as witnesses of recovery were subordinate to A.S.I. Mumtaz Hussain Shah P.W.1, complainant and no independent and respectable person from locality was called to attend and witness the search and recovery is thus unreliable. Elaborating his argument, learned counsel for appellant has stressed that the purpose of this section of law is to ensure that the deposition offered in Court in respect of the result of search should not solely depend upon the police officials but also on the testimony of independent and respectable persons of locality and that possibility of mischief of fabrication or concoction be avoided by availability of such independent and disinterested persons and the accused be not left totally at the mercy of Investigating Officer. In this respect reliance is placed on the authority reported as Muhammad Khan v. Dost Muhammad P L D 1975 SC 607, which lays down that object of section 103, Cr.P.C. is to safeguard against possible chicanery and concoction, therefore, Courts will ordinarily insist on a strict compliance with this requirement and view its breach with suspicion unless an explanation is forthcoming for failure to secure the presence of respectable witnesses or omission to examine them in Court. The same view is expressed in P L D 1990 SC 1083 and Yar Muhammad Khan and others v. The State 1992 S C M R

96. There is no denying the fact that recovery in a case like the one in hand is an important piece of evidence which is to be established by, independent, disinterested and respectable persons of locality. This is precisely the reason that the express and mandatory provision of section 103, Cr.P.C. cannot be ignored or brushed aside on whim and caprice of the Investigating A Officer except on well‑founded grounds and in exceptional cases. On. these premises, it is strongly urged that violation of the provision of law under reference or unexplained digression there from, exposes the alleged recovery to distrust.

4. In the instant case, the Investigating Officer had prior knowledge of arranging raid on the house of the proclaimed offender for his apprehension and that, on his own showing the appellant was residing in the same house. He is a complainant and also an Investigating Officer, beside being a witness. While combining the triple positions in himself, it was essential for this witness g to offer a reasonable explanation in respect of his wilful omission to call respectable persons of locality to attend and witness the search and recovery, especially when Ali Dad D.W. was ‑present at his elbow as also when all villagers are usually available in their respective houses at early morning time. He has not taken the 'flea that he sent for the notables of the village or deputed any constable to fetch them. In this state of matters, the possibility about the appellant having been falsely implicated in the case cannot be excluded. Significantly the defence witness has positively stated that nothing incriminating was recovered from the possession or person of the appellant. To off set the effect of his evidence, a false stance is taken by the complainant, that as a sequel to raid, the appellant ran out of his house with a weapon in hand. It was highly improbable as, while being in house, he could easily take up the plea that the fire‑arm, if all existing, was belonging to his brother and he had nothing to do with it nor could it be. in his exclusive possession in a joint residence. The conduct imputed to the appellant is inconsistent with normal course of events. In the circumstances, I have no reason to disbelieve Ali Dad D.W.; who has no interest to save the skin of the appellant nor is he related to C him in any wise. I equally cannot avoid the inference that A.S.I. Mumtaz Hussain Shah, P.W.2 who undoubtedly bears a badge of complainant would be least expected to conduct investigation in an unbiased manner and indeed the way he has conducted himself amply demonstrates that investigation carried out by him amounted to mockery. He has neither prepared site plan of the house of proclaimed offender nor of the place where the alleged recovery was affected, nor has he associated any disinterested person with alleged recovery, though available. These deliberate lapses on his part renders the recovery beset with grave doubts. This doubt does not diminish but is aggravated by a most jarring feature, such as, on arrival of A.S.I. Mumtaz Hussain Shah P.W.2, at the spot at 5‑30 p.m. he first carries out raid in the required house, then gives a chase to appellant and disarms him, also prepares a recovery memo and finally scribes a Murasila at spot and despatches the same to police station. He makes one believe that all this was accomplished by him within fifteen minutes. This circumstance, standing by itself, furnishes an inherent proof of fictitious and fabricated nature of recovery relied up by the prosecution. The alleged recovery is not legally worthy of acceptance and I discard the same from my line of consideration for the reasons stated above.

5. Notwithstanding the above, the 'Klashnikov alleged to have been recovered in this case was not sent to the ballistic expert for his opinion as to whether it was in fact a Klashnikov rifle or otherwise an automatic or semi automatic weapon. To some extent, the judgment reported as 1992 P Cr. L J 1287 and relied upon by the learned counsel for the appellant is attracted and binds the factual position of the instant case. In the absence of any expert opinion, it cannot be held with legal certitude that the weapon recovered is really of the kind alleged by the prosecution, namely, automatic or semi automatic weapon. This being so, the offence would not fall within the teeth of E the schedule to the Suppression of Terrorist Activities (Special Courts) Act, 1975, which would render suspect the jurisdiction of the learned trial Court. Thus, the very basis for trial before Special Judge is altogether wanting in the instant case. In other words, the trial in the Court of Special Judge stands vitiated. In view of the quality of evidence that has been adduced from the prosecution side, the conviction of the appellant cannot be sustained. So which ever angle, the appeal is looked at, it has force and merit and that it must succeed. Resultantly, the conviction and sentence passed on the appellant is set aside and he is acquitted of the offence charged with. The appellant is on bail, his bail bond is discharged and he is set free. This fire‑arm with ammunition recovered in the case stands confiscated to the State. . N.H.Q./1653/P Appeal accepted.