MUHAMMAD RAFIQUE Versus THE STATE

Muhammad Rafiq appellant was tried by Mr. Riaz‑ul‑Hassan Aliv, Special Judge, Suppression of Terrorist Activities Court, Multan and having been found guilty he was convicted under section 13 of the Arms Ordinance, 1965 and was sentenced to undergo seven years' R.I. A fine of Rs.50,000 was also imposed on him and in default of payment of fine he was to further undergo R.I. for two years. The afore -referred judgment of the learned trial Court dated 15‑12‑2000 has been challenged by Muhammad Rafiq appellant through the instant appeal.

2. The law was set in motion on the complaint Exh.PA drafted by Muhammad Attique, S.H.O./P.W.3 at 2‑10 p.m. on 15 7‑1998. On the basis of this complaint formal F.I.R. No.284 of 1998 Exh.PA/1 was registered at Police Station Khanewal Kuhna at 2‑20 p.m. by Muhammad Rafiq Moharir/Head Constable, P.W.1, for an offence under section 13 of the Arms Ordinance, 1965.

3. It was stated in the F. I. R. that on the afore‑referred date and time Muhammad Attique, S.I. was present alongwith the other Police Officials at Lahore Morr Gharbi when he saw the appellant with a bag in his hand. The appellant tried to run away when he came across the police party but was surrendered by the Police officials and was overpowered. It is further stated in the complaint that when the bag belonging to the appellant was opened it contained a Kalashnikov rifle with No.92723 inscribed on its butt. As the appellant could not produce any license to retain the rifle the case was registered against him and Kalashnikov P.1 alongwith bag was taken into possession by P.W.3 vide memo. Exh.PB which was signed by Qamar Zia, A.S.I./P.W.2 and one Ishtiaq, Constable who was not produced during the trial.

4. The appellant was sent up for trial and the same commenced when the appellant denied the charge. During the trial the prosecution produced three witnesses in support of its case. P.W.1 Muhammad Rafiq stated about registration of the case. P.Ws.2 and 3 testified about the recovery of kalashnikov from the appellant. P.W.3 also stated about drafting of complaint and investigation of the case. The report of Forensic Science Laboratory Exh.PD was also submitted in evidence by the learned prosecutor and the case of the prosecution was closed.

5. The statement of appellant was recorded under section 342, Cr.P.C. who pleaded innocence and stated that he was roped in a false case by the complainant to show his efficiency and performance. The appellant did not appear as a witness under section 340(2), Cr.P.C. and after producing one D.W. namely Syed Abid Hussain closed his case.

6. The learned counsel for the appellant has very ably argued the case and has stated that the recovery of P.1 was not proved in this case; the trial was conducted in a very cursory manner and the prosecution had failed to prove its case. On the other hand the learned A.A.‑G. has argued that sufficient incriminating material was available against the appellant; he was rightly convicted in the case; Police Officers had no background of enmity with the appellant and, therefore, their testimony should be believed.

7. I have heard the learned counsel for the appellant and the learned A.A.‑G. at length, have minutely examined the record of the case, have gone through the evidence and the impugned judgment. Admittedly, the' appellant was apprehended at a place which was densely populated and Several shops were situated near the place of occurrence on the southern side, but none from the public was associated during the recovery proceedings in violation of the mandatory provision of section 103, Cr.P.C. P.W.2 who is police officer has admitted the presence of other persons and the shop near the place of occurrence and he has also admitted that no private person was called to be a witness during the recovery proceedings. P.W.3 who is author of the case has also admitted the presence of the private witnesses but he has stated that no one was prepared to be a witness. Neither he has stated the name of any public witness who refused nor he has stated that he had called any witness. The tendency of violating the mandatory provision of law by the police officer is on the rise and the same has to be cured. It was held in the ease of Zaman Iqbal (1992 MLD 90) that conviction could not be maintained on the basis of the evidence of police witnesses only when the provisions of section 103, Cr.P.C. were violated. Similarly it was held by the apex Court in the case of Muhammad Azam (PLD 1996 SC 67) that the provisions of section 103, Cr.P.C. would apply with full force when the search is to be made in an inhabitated locality.

8. Although report of Forensic Science Laboratory Exh.PD has been filed upon by the prosecution during the trial but a perusal of the same shows that the rifle sent for examination was also accompanied by eight crime‑empties marks C.1 to C.8 which were fired by that weapon. It is no where in the evidence that at the time of recovery P.1 the appellant had any bullet or, magazine. The number inscribed on the butt of the alleged recovered rifle has not been mentioned in Exh.PD. Not a single witness has been produced to prove that the recovered rifle was sent to the Forensic Science Laboratory, Lahore. It appears that a report relating to some other weapon has been appended with the record of this case. A perusal or statement of the appellant recorded by the trial Court under section 342, Cr.P.C. further clarifies the matter. No question has been asked that at the time of recovery of rifle some empties or bullets were also recovered. The report of Forensic Science Laboratory Exh.PD was never put to the accused and no question was asked about it. In these circumstances the report could not be used against the appellant at all. No armourer or fire‑arm expert was produced to prove that the recovered article was indeed Kalashnikov.

9. The record of the case is also silent as to whether the recovered article was produced before the Court during the trial or not. In these circumstances there can only be one presumption that the recovered article was not produced during the trial.

10. Formal charge was framed by the learned trial Court on 8‑3, but the year has not been mentioned anywhere. It cannot be said with certainty that whether it was framed in the years 1998, 1999 or in the year 2001 and to top it all, it is stated that the charge was framed in the presence of the appellant but the formal charge‑sheet neither bears the signature nor thumb‑marks of the appellant. The charge was framed in black‑ink in a different handwriting. It was signed by a fountain pen by the Presiding Officer with a blue‑ink and the date 8‑3 was added without year with ball‑point. To conduct trial of cases in such a cursory manner is most unfortunate.

11. The upshot of above discussion is that the case of the prosecution is replete with doubts. Resultantly, this appeal is allowed, the appellant is acquitted of all the charges, conviction and sentences are set aside and' the appellant would be released forthwith, if not required in any other case.

Appeal allowed.

H.B.T./M‑1244/L