1994 P Cr (PLP)

MUKHTAR AHMED JUNEJO, J: -- Appellant Muhammad Hassan has challenged his conviction and sentence by the Judge, Special Court III for Suppression of Terrorist Activities, Karachi in Special Case No.334 of 1991 which was outcome of F.I.R. No.137 of 1988. According to the prosecution on 16-12-1988 at 4-00 p.m. Inspector, Arshad Kamal Kiyani of C.I.A. Police with his staff, was entrusted with the work of arresting appellant Muhammad Hassan Chandio required in case of F.I.R. No.235 of 1988 of Police Station Gadap. Said Inspector was also assigned the duty to get released abductee Naeemuddin. Consequently on receiving information from a special informer, Inspector Arshad Kamal Kiyani gave warning to appellant Muhammad Hassan at his hide out in a Jungle near village Hussain Shah to surrender. In return the appellant resorted to firing which was replied. Thereafter police succeeded in arresting appellant Hassan Chandio and securing from him a Klashnikov with a magazine. The appellant had no licence for the Klashnikov. Consequently Inspector Arshad Kamal Kiyani lodged complaint against the appellant, at Police Station Manghopir Karachi. The case was registered by S.I.P. Amir Alam of Manghopir Police Station. The case was investigated by Inspector Arshad Kamal Kiyani who challaned the appellant. At his trial appellant Muhammad Hassan Chandio pleaded not guilty to the charge Exh.1 containing the prosecution allegations. The prosecution examined complainant Arshad Kamal Kiyani Exh.6 and P.Ws. Moula Dad Khan Exh.2, Adam Khan Exh.3, Jehan Khan Exh.4 and Amir Alam Exh.5. Prosecution was closed under statement Exh.7. In his statement Exh.8 the appellant denied the prosecution allegations. He stated that he was arrested while he was coming from Hyderabad to Karachi by Bus. He denied recovery of any article. The appellant stated that he had no enmity with the witnesses but alleged that they had deposed at instance of police. The appellant gave his statement Exh.9 on oath and examined D.W. Pir Bux Exh.10. At conclusion of the trial, the appellant was convicted for the offence punishable under section 13-B of Arms Ordinance and was sentenced to suffer R.I. for 7 years. Hence this appeal. The recovered property was forfeited in favour of the Government. Mr. Abdullah Chandio, learned counsel for the appellant argued that both the Mashirs were picked up from a place near village Hussain Shah where they came from Bakra Piri which is 15/16 kilometres away from the place of recovery. It was also argued that P.W. Adam Khan was of Mianwali and he claimed to have signed the Mashirnama, while Investigating Officer Arshad Kamal said that he thumb-marked it. Other contradictions pointed out were, that Mashirs had said that there were three mobiles of police while Investigating Officer had given the number of the five mobiles and that Adam Khan had said that 350 empty bullets were recovered while Jehan Khan had said that 300 empties were recovered and the Investigating Officer had said that there were many huts in the jungle where the appellant vas asked to Surrender while Jehan khan had said that there was a hut in the jungle. It was also argued that there was no explanation, as to why police did not pick up Mashirs from the huts and as such the recovery was doubtful. In support, learned counsel for the appellants cited the cases of: (i) Ashique Hussain Chandio v. State P L D 1992 Kar. 5 and (ii) Yameen Kumhar v. State P L D 1990 Kar.

275. Mr. M. Sarwar Khan, learned A.A: G. conceded that the only contradiction in the evidence was about the number of vans with police but there was no contradiction about a Mashir saying that he put thumb-mark and others saying that he signed. It was further argued that both the Mashirs were private persons and they have explained as to why they were present, near the Wardat at the relevant time and their evidence was consistent. It was also argued that no enmity was alleged by the appellant with witnesses during their cross-examination and that the Mashirs had not given evidence in any other case. In support reliance was placed on the case of Ballia and others v. State 1985 S C M R

954. In the case of Yameen Kumhar P L D 1990 Kar. 275 a learned D.B. of this Court observed as below:-- "A perusal of the aforestated authorities and a catena of judgments of various High Courts which we have not quoted here dearly lay down that section 103, Cr.P.C. is to be applied to recovery, search and arrest made daring investigation of a crime. It has been termed as mandatory but not absolute and its non-compliance in certain circumstances will not render search and recovery illegal. However, where during investigation of a crime recovery is made from any inhabited locality compliance with section 103 must be made. It cannot be ignored or brushed aside on the whims and caprices of the Investigating Officer except on well-founded grounds and in exceptional cases. If recovery has been made in contravention of section 103, it is the duty of the prosecution to explain it and give valid and reasonable explanation for such digression. Recovery is an important piece of evidence which is to be proved by disinterested, independent and respectable witnesses. Such witnesses should be of the locality if the circumstances of the case permit. Section 103 embodies rule of prudence and justice. It is intended to eliminate and guard against "chicanery" and "concoction", to minimise manipulation and false implication. It is for these reasons that there is a consensus in the Superior Courts and compliance with section 103 should not be bypassed nor that its applicability be restricted to proceedings under Chapter VII only. The principles of section 103 have been applied and practised during investigation in crimes for so long and with such regularity and force that any attempt to restrict it to proceedings under Chapter VII only will unsettle the settled law." In said authority the emphasis has been laid on the recovery witnesses being disinterested, independent and respectable. As per said authority the recovery witnesses should be of locality if the circumstances of the case permit so. This shows that evidence of recovery witnesses cannot be brushed aside simply because they are not of the locality. In the case of Ashique Hussain Chandio P. L D 1992 Kar. 5 it has been observed that in a criminal case, it is duty of the Court to review the entire evidence that has been produced by the prosecution and the defence and if on examination of such evidence the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true, such view reacts on the whole prosecution case. In the case of Ballia and others 1985 S C M R 854 it was held that mere fact that recovery witness was not a person of locality was not a proper reason for excluding evidence of such recovery witness. In the instant case both the witnesses of recovery viz. Jehan Khan and Adam Khan were private persons. Adam Khan Exh.3 belongs to Bakra Piri and he explained that on the day of incident he was going to village Hussain Shah for purchase of goats and while he got down from the Bus at 1 p.m. he was asked to accompany police. Jehan Khan Exh.4 is resident of Niazi Colony Kalakot and he deposed that he was with Adam Khan and they both were going to Hussain Shah village for purchase of goats and on getting down from" the Bus he was requested to act as Mashir as some dacoits were to be arrested. Both these witnesses have supported the prosecution case about encircling a Jungle and about arrest of the appellant at the spot and about recovery of Klashnikov from him. Both these witnesses supported the seizure memo. Exh.3-A. Seizure memo was also supported by Arshad Kamal Kiyani Exh.6 who accompanied by the Mashirs surrounded the area where the appellant was reported to be hiding himself. No enmity has been alleged with either of the Mashirs. P.Ws. Adam Khan and Jehan Khan are not shown to have acted as Mashirs in any other case and there is no reason to disbelieve them. Contradictions pointed out by learned counsel for the appellant are of trivial nature and they would not affect the prosecution case on merits. No doubt the two Mashirs viz. Adam Khan and Jehan Khan are not persons of the locality but in view of the case of Ballia and others 1985 S C M R 854 their evidence, cannot be discarded on that ground. For the aforesaid reasons, we are of the view that the appellant was rightly convicted and we maintain conviction of the appellant. However, we reduce his sentence of imprisonment form 7 years to 5 years for which learned AA-G. did not oppose. In our view the ends of justice would be fully met if appellant suffers R.I. for five years. A short order maintaining the conviction and reducing the sentence from seven years to five years was passed on 25-1-1994, and these are reasons for the same. N.H.Q./M-1953/K????? Sentence reduced.