BEFORE ABDUL GHANI KHAN KHATTAK AND USMAN ALI SHAH, JJ AND MUSLIM SHAH Versus THE STATE

JUDGUENT

ABDUL GHANI KHAN KHATTAK. J-- -Muslim Shah alters Muslim son of Mohammad Noor, resident of village Ilaqa Sheikhan. Police Station Kohat, District Kohat, was tried for the charge under sections 4/5 of the Explosive Substances Act and by the judgment recorded on 7-4-76, the learned Special Court found him guilty under section 5 of the Explosive Substances Act ants sentenced him to three years' R. I. The convict has appealed from his conviction and sentence.

2. The prosecution case is that on 13-5-75, in the early hours, the Kohat Cantt. Police alongwith Saddar Police. Kohat under the instructions of S. P., Kohat, arranged Naka Bandi near village Sheikhan for rounding up smugglerr, and out-laws. At about 4-30 a.m., a person was seen approach ing from the direction of village Sheikhan towards Kohat City who, after interrogation, disclosed his name as Muslim Shah son of Mohammed Noor of village Sheikhan. He was found in possession of 14 dynamites. 30 detonators, 30 pieces of safety fuse which were wrapped in a Chadar. In addition to the above, a plastic envelope and a leather package containing Chars which weighed six seers weep also found on his person. The police party also recovered from him a cloth sack containing 44 cartridges of 7 m.m. and from the fold of the trousers of Muslim Shah a dagger.

3. S I. Zahiruddin (P. W. 5) wrote the Morasila (Exh. P. Ail) which was sent for the registration of the case and the F. I R. No. 311 (Exh. P. A) of even date was registered on this Morasila. The recovery of the above articles is supported by Mir Shahbaz Khan S. I. (P. W. 4). Statement ref (then major) Muhammad Ishaq, A. T. O, Head Quarter, 9 Div., Kohat Cantt. (P. W. 6) who opined about the explosive character of the articles sent to him, is not necessary for the disposal of this appeal to be recapitulated.

4. The plea of the appellant at the trial was false implication and stated:-

All these witnesses are police officials, hence interested persons. As a matter of fact, I had altercated with Rasul Khan A. S. I. of P. P. Jangal Khel, who was cited as a prosecution witness but who has since been abandoned by the prosecution, and on that account, the police connected a false case against me and implicated nee in this case, with a view to avenge the insult, allegedly received by Rasul Khan A. S. I. at my hands.

Q.----Why are you charged and have you anything else to say?

A.-I am innocent. As stated above, I have been falsely implicated in this case. As a matter of fact, the local police carried out a search in our house and the adjoining houses. On the basil of a case, registered in P. S., Kohat Cantt. at Plat No. 310 date 13-5-75, and in which case my brother Iraq Shah had already been challaned. During the search of our house, in pursuance of the said case, as the police party leaded by Rasul Khan A. S. 'I. misbehaved,

1. Argued with him as to his authority to carry oat the search which resulted in altercation, between me and Rasul Khan A. S. I. for which reason I was later falsely implicated in this case its the police made it a question of prestige."

In defence the accused examined Yasin Shah whose evidence at the trial was that the appellant lived in a joint house with his brother Iraq Shah who used to supply stones for the construction of a small dam near village Sheikhan, and for blasting tire stones Iraq Shah used to utilise dynamite and detonators, and that at the material time on his way to his field, he, as Lumbardar, was asked by the police party to witness the search of the house of the appellant, and that one Agha Jan, a neighbour of the appellant, was found present by him with the police party inside the souse, and that he saw sonic incriminating articles with Jawahir Shah S. I (P. W.) and Rasul Khan A. S. I. (not examined) and that on his asking the police party that they should have offered themselves for search before conducting the house search, he was told that they had nothing on their person and that in his presence the appellant altercated with Rasul Khan A. S. I.

5. After hearing the learned counsel for the appellant and examining the record of the case, we considered it necessary to examine the investigating officer regarding certain points which are mentioned in the judgment. Mr. Akhtar Munir, Asstt. Advocate-General questioned the examination of Zahiruddin on two-fold grounds. It was contended before u9 that the defence had full opportunity of cross-examining the witness and that the trial having been before tire Special Court under Act XV of 1975 (hereinafter called as the Act), the Provisions of section 428, Cr. P. C. are not attracted. The first objection shall be dealt with later in the discussion of the evidence and the second abjection is taken first.

6. Following from he Act may be quoted fog convenience:-

5. Procedure of Special Court.-(1) to (6) ..

(7) A Special Court shall, in all matters with respect to which no procedure has been prescribed by this Act. follow the procedure prescribed by the Code for the trial of summons cases by Magis trates.

7. Appeals from sentences imposed by Special Court, etc.---(1) A person sentenced by a Special Court shall have a right of appeal to the High Court within whose jurisdiction the sentence has been passed, but save as aforesaid and notwithstanding the provisions of the Code or of any other law for the time being in force or of anything having the force of law by whatsoever authority made or done, no Court shall have authority to revise such sentence, or to transfer any case from a Special Court or to make any order under section 426 or section 491 or section 498 of the Code, or have any jurisdiction of any kind in respect of any proceedings of a Special Court.

(2) An appeal under subsection (1) shall be preferred to the High Court within thirty days of the passing of the sentence and shall be heard and decided by a Bench of not less than two Judges of the High Court.

The provision of law reproduced above from the Act is clear on the point. We are aware of no other provisions of law dealing with this appeal nor the learned Asstt. Advocate-General has been able to tell us. Chapter o the Code provides for appeals and the provision of section 428, Cr. P. C. is meant for recording further evidence if it is considered necessary. Why was it considered necessary, shall be instantly discussed in the succeeding paragraphs. It must be, however, made clear that this section is meant for neither of the parties to a criminal case but its object is to see that justice is done, therefore, this section can be pressed into service for the ends of justice whenever it is required, either or the prosecution or for the defence.

7. Yaqin Shah (D. W. 1) has been put to fairly lengthy cross-examina tion end he had not been impeached to the extent of keeping his evidence out of consideration. In any case, there are two versions before us. The following facts dove-tail in the direction of acceptance of the defence version:

(a) Iraq Shah brother of the appellant was apprehended at 4-30 a.m. on 13-5-75. Therefore, it would be improbable that the search of his house did not follow his arrest. But Zahiruddin says that the house of Iraq Shah was not searched. Tine appellant supported by an independent witness is emphatic about it. We, are thus asked by the- prosecution to accept what is normally not emphatic of a police officer.

(b) The appellant's brother Iraq Shah was trapped simultaneously with him per F. I. R. Illat No. 310 ant the F. I. R. relating to the appellant is Illat No. 311. The subsequent report is a corbon copy of the former 4acept for the name of the accused person. The material portion in Illat No. 311:-

(c) Zahiruddin has stated before us that the time of occurrence in both the cases is identical because the accused in both the cases reached the spot simultaneously and were apprehended. It can hardly visualised to see only one person while in fact there were two persons reaching together exactly at the same time at the bridge where they were arrested, yet their arrest is shown by separate reports. The question that the recovery of the case property if shown as recovered from their joint house could not be fired on him alone, cannot be easily brushed aside. The suspicion on this aspect is characterised by looking at the spot where there exists no blind corner night from the situs of sorest of the appellant and for that matter his brother up to village Sheikhan This is not the case of the prosecution that the accused fell into the trap one after the other around a blind corner. The test and substance of the report does not suggest this interpretation. The description of the apprehension of two persons, simultaneously at the same place lends countenance to the fact that the defence version may not be altogether ignored.

(d) The investigation in both the cases concluded at one and the same time, yet the Morasilas were sent to the police station through different messengers, namely Mohammad Zaman and Haji Gul Constables The explanation for doing so offered by Zahiruddin is not convincing. Normally one person could have taken Morasilas of both the case together and the contrary course adopted in this case creates a. suspicion against this conduct.

(e) At the trial the appellant was described as bad character of bundle A whereas in his statement in this Court, Zahiruddin stated that he was bad character of bundle B. This is in a way indicative of the solicitous desire of a responsible police officer to depict him a lad citizen of the worst kind.

8. Keeping the above facts in view, it will not be correct appreciation of evidence and procedure to hold that the defence have not been able to make the case doubtful against tine appellant, and it cannot be said that the guilt of the appellant has been proved beyond a reasonable doubt. We, therefore, set aside the conviction sad sentence of the appellant and acquit him.

Appeal accepted.