1999 PLP 1321 (MLD)

It is contended by the learned counsel for the applicant/accused that the applicant/accused is innocent and has been falsely implicated and booked in this case: that as per memo. of arrest and recovery he was arrested on 10-6-1997 at 12-30 a.m. on the pointing of co-accused from the lawn of Hotel Holiday Inn (Crown Plaza) where he was working as waiter in copies of letters dated 23-6-1997, 22-8-1997 and 13-9-1997 sent to the applicant/accused by the personnel Manager of Hotel Holiday Inn Crown Plaza for the resumption of duties reveal that he was arrested at 11-05 p.m Hall of the hotel: that the arrest and recovery from the applicant/acc violation of section 103, Cr.P.C. as no private person has been made Mashir; that the applicant/accused is not more required for the purpose of investigation as case has been finally sent up; that the name of applicant/accused does not transpire in the F.I.R; that the evidence of prosecution witness Muhammad Amir recorded connected case under section 13-D of the Arms Ordinance, is contradictory; therefore, he is entitled to bail. In support of bail application learned counsel has filed copy of the deposition of Investigation Officer recorded in connected case under section 13-D of the Arms Ordinance, and has also placed reliance on PLD 1997 SC 408 and 1994 PCr.LJ

746. Mr. Ashique Hussain Mehar learned counsel for the State has contended that the applicant/accused was arrested on 10-6-1997 at night time and after arrest on the very same night he led the police party and produced the crime weapon from bushes; that on the same day; i.e. 10-6-1997 his identification parade was held before Judicial Magistrate in which he was correctly picked out by P.W. Abdul Jabbar an eye-witness of the case; that the injuries sustained by the deceased at the hands of accused are corroborated by medical report, that the letter of the presumption of duty is managed and manoeuvred one at that no reliance can be placed on it; that the case of applicant/accused is covered by prohibitory clause (1) of section 497, Cr.P.C. and applicant /accused is thus not entitled to bail. I have carefully considered the arguments of learned counsel for the applicant /accused and learned counsel for the State. I have also perused the police record with the assistance of learned counsel for the parties as well as the material on record and impugned order. It is an admitted position that applicant/accused was arrested on the pointing of co-accused who were already in police custody from Hotel Holiday Inn (Crown Plaza) where he was serving as waiter during night time. If there is any discrepancy between the date and time of arrest shown in the Mashimama of arrest prepared by the police and the letters purportedly issued by the Personnel Manager of Hotel in the name of applicant/accused for resumption of duties this cannot be considered at the stage of bail as it may tantamount to deeper appreciation and evaluation of evidence which is not permissible in law. It could only be ascertained by the trial Court after evidence is recorded. If any finding is recorded regarding the correctness, genuineness, authenticity or otherwise, in respect of any document at bail stage, which document is yet to proved it might prejudice the case of either parties. This Court cannot assume the role of the trial Court. This contention has therefore, no force. Applicant/accused on the very same night of his arrest voluntarily led the police party and produced one unlicensed pistol with loaded magazine containing live bullets used by him in the commission of offence from the bushes near Malir River, Shah Ali Village Karachi. So far as the question of procuring or associating the private persons for the purpose of arrest or recovery is concerned, the applicant/accused was arrested during night time and the recovery was also effected in the odd hours of night from the bushes near Malir River, therefore, looking towards the peculiar facts and circumstances of the case, it appeared to be difficult to procure the attendance of private persons witnessing the arrest or recovery process, hence, prima facie, no violation of section 103, Cr.P.C. is made out at this stage. In his deposition in the connected case under section 13-D of the Arms Ordinance, the I.O. has deposed on this aspect. The evidence of police official also cannot be ignored at this stage, as a policemen is as good a witness as any other person until and unless evidence is brought on record to dislodge his evidence. The complainant has categorically stated in the F.I.R. that he can only identify the assailants if he saw them. It shows that accused were not previously known to him. The contention of learned counsel regarding no mention of the name of applicant/accused in F.I.R. has no substance. Complainant has given eminent features of accused in the F.I.R, The incident occurred during day time. The question of mistaken identity, therefore, does not arise. In the night applicant/accused was arrested, whereafter he led to recovery, and promptly on the next morning his identification test was held before the Judicial Magistrate' and he was correctly picked out by complainant who is an eye-witness in this case. The copy of the deposition of P.W: Muhammad Amir Investigation Officer of the case recorded in connected case under section 13-D of the Arms Ordinance is of no avail to the applicant/accused as there is no material contradiction or deviation in his evidence. On the contrary he has clarified certain omissions. Moreover, the evidence recorded in one criminal case cannot be accepted in another case until and unless witness is examined quid confronted with any material contradiction. The Investigating Officer is not examined so far in the case in hand. This contention of the learned counsel is too devoid of force. There is, prima facie, enough evidence against the applicant/accused connecting him with the commission of alleged offence, and there are reasonable grounds to believe at this stage that he is guilty of the offence with which he is charged. He is, accordingly, not entitled to bail. The case-law cited by the learned counsel for the applicant/accused is of no help to him and it is distinguishable on the facts as well as law and it is not applicable to the facts of the present case. In the case of State through Advocate-General Sindh v. Bashir and another reported in PLD 1997 SC 408 the learned counsel for the applicant/accused has relied upon the observations of their Lordships of the Hon'ble Supreme Court reported at page 417 which are reproduced in extenso hereinbelow: "We are unable to subscribe to the above broad legal proposition. There is no legal prohibition for a police officer to be a complainant if he is a witness to the commission of an offence and also to be an Investigating Officer so long as it does not, in any way, prejudice the accused person The Court will have to appraise the evidence produced by the prosecution as a whole and will have to form the opinion after evaluating the same. In the case in hand, since Shameen Ahmed was heading the C.I.A. party involved and arrested the accused persons and made recoveries of the arms and ammunition, he could have sent the complaint to the Police Station New Fojdari, Shikarpur. The question, as to whether he could investigate as a C.I.A. Officer, is a different issue, had he been covered by the definition of the Station House Officer employed in section 156(1) of the Cr.P.C. or had he been authorised by the competent Authority, there would not have been any legal infirmity because of the factum that he investigated the case. 9.As regards the above second submission of Mr. M.A. Aqil, it may be observed that it had been repeatedly held that the requirement of section 103, Cr.P.C. namely that two members of the public of the locality should be Mashirs to the recovery, is mandatory unless it is shown by the prosecution that in the circumstances of a particular case it was not possible to have two Mashirs from the public. In this regard it will suffice to refer to a recent judgment of this Court in the case of Mushtaq Ahmed v. The State PLD 1996 SC 5

74. In the case in hand, S.I.P. Muhammad Rafique has not been able to give any cogent explanation as to why he was unable to secure two Mashirs from the public. In his cross examination at page 48 of the paper book he stated that "I received the spy information regarding the presence of the accused

I did not take the informer with me when I proceeded to Andho Muqam. There are hotels at Rustam Chowk .....No person from the vicinity came at the time of arrest and recovery'. The above statement of Muhammad Rafique in his cross-examination indicates that no efforts were made by him to secure two Mashirs from the public. In this view of the matter, the recoveries are doubtful.

10. Reverting to the third submission that since in support of the case under section 13-D of the Arms Ordinance, the recovery witness were the police personnel, no implicit reliance can be placed or their evidence, it may be stated that he has relief upon the following observation from the judgment of this Court in the case of Mushtaq Ahmed v. The State (Supra):-- (v) That likewise there is a marked distinction between a case in which the offence charged with is the recovery of the article itself like recovery of an unlicensed Klashnikov and a case to which the article recovered e.g. a crime weapon is to be used as a corroborative piece of evidence. In the former case if the witness to the recovery were police personnel though it was possible to have two Mashirs from the locality where recovery was made, their testimony in the absence of other reliable pieces of evidence would not warrant conviction, whereas in the latter case if other pieces of evidence on record are free from doubt, the testimony of the police personnel, if otherwise free from any legal infirmity may be accepted;" The above extract from the above judgment of this Court lends support to submission of Mr. Aqil, Therefore, on this account also the conviction under section 13-D of the Arms Ordinance, cannot be sustained. The above-referred dicta of Hon'ble Supreme Court is laid down in an appeal against acquittal indicates that police personnel are as good witnesses as any other person and when it is shown in the circumstances of case that it was not possible to procure two private persons from public, and if the evidence of police personnel does not suffer from any legal or factual infirmity, that can be accepted. It is further held that if other pieces of evidence on record are free from doubt the testimony of the police personnel in respect of recovery if the same is free from any legal infirmity can be accepted. As already stated this could only be adjudged when evidence is brought on record. In the case in hand no evidence has yet been recorded, therefore, at the bail stage all this cannot be adjudged because in my view it amounts to evaluating and sifting of the evidence, which is not permissible for the purpose of bail. In the case of Sufi Mahinwal v. The State 1994 PCr.LJ 746 it was held that the applicant was not named in the F.I.R. and his name surfaced for the first time during police investigation after about 1-1/2 months whereas in the case in hand admittedly accused were not known previously to the complainant and applicant/accused was arrested on or about 12th day of the incident. It is also settled principle of law that each case is to be decided on its own facts and circumstances. For all the reasons stated herein above, I do not agree with the learned counsel for the applicant/accused and I see no merit in the bail application, consequently, the same is dismissed. The observations made herein above are of tentative in nature and the trial Court will not be influenced thereby in any way at the time of final decision of the case and it will be free to conclude and arrive at its own findings on merits after evidence is recorded in the case. N.H.Q./M-333/K Bail refused.