MUMTAZ Versus STATE

1. SYED HAIDER ALI PIRZADA, J: ‑‑ The appellants Mumtaz and Ibrahim were charged and tried under section 365‑A read with section 34, P.P.C. before the learned Special Judge (Suppression of Terrorist Activities), Larkana Division at Larkana who has convicted the appellants and sentenced them to suffer imprisonment for life and also ordered forfeiture of property of each of them vide judgment, dated 12‑11‑1991.

2. The brief facts of the prosecution case are that on 2‑3‑1991 the complainant A.S.I. Amanullah Dayo of Police Station Dakhan along with his subordinate staff had gone for patrolling duty in their area, as per Daily Entry No.5, dated 2‑3‑1991. During patrol duty, on receipt of spy information, recovered the abductees namely Haji Dil Murad Ghanghro and Muhammad Amin Ghangro and apprehended dacoits/accused Mumtaz Ghangro and Ibrahim Panhyar along with their unlicensed gun and revolver of .32 bore and came at police post and lodged F.I.R., a report which reads as under:‑

3. "I along with subordinates namely C/628 AN Hassan, C/20 Shahzado Khan, C/768 Ali Hyder, duly armed with weapons and in uniforms proceeded from P.P. Nabi Shah Wagon for patrolling in area, as per daily diary entry No.5/1610/2‑3‑1991. While patrolling we reached a bridge of Sim canal, on road running from Jacobabad to Ratodero, when we received spy information that some daeoits had abducted some unknown persons for ransom and now they confined them secretly in a `Katcha' room at shrine of Pir Bari. Having such spy information, I alongwith that abovementioned staff at once left for that place. As per received information, we reached at shrine of Pir Bari at 1830 hours in the evening. We looked closely at the pre- pointed out `Katcha' room, and found four (4) persons armed with weapons/standing there in room. We tactfully at once encircled them and disclosing our identity as police, gave them `hakal' (challenge) and advanced towards them. On seeing us, the said accused opened direct fires upon us. We took positions and made firing in our self‑defence. We narrowed the circle and captured two men along with gun and revolver while two persons made good their escape by taking advantage of jungle. We enquired from the captured accused about their names, etc. Out of them, one accused told his name as Mumtaz son of Illahi Bux by caste Ghanehro r/o village Maqbool Shah taluka counsel for the petitioner correspondent with the numbers mentioned in the detention order. This circumstance alone shows that the detaining authority did not apply its mind properly as it ought to have been. There is no nexus with the grounds of the detention of the petitioner. Furthermore, mere pendency of the criminal cases even otherwise is no ground to detain a person under the Detention Law. I am fortified in this view with the judgment reported as PLD 1973 Kar. 78 and also another judgment reported as PLD 1988 Lah. 611. Consequently, this petition is allowed. Detenu shall be set at liberty forthwith u not required in any other case. In these circumstances, the parties are left to bear their own costs.

4. N.H.Q./N‑58/L Petition accepted.

5. 1992 M L D 1448

6. [Karachi]

7. Before Syed Haider Ali Pirzada and Salahuddin Mirza, JJ

8. MUMTAZ and another‑‑‑Appellants versus

9. THE STATE‑‑‑Respondent

10. Criminal Appeal No.256 of 1991, decided on 24th February, 1992.

(a) Penal Code (XLV of 1860)‑‑‑

11. ‑‑‑‑S.365‑A/34‑‑‑Appreciation of evidence ‑‑‑Abductees had not supported the prosecution case‑‑‑Statements of abductees recorded under S.164, Cr.P.C. could not be treated as substantive pieces of evidence as at that time the accused were not represented and the right of cross‑examination had not effectively been exercised by them ‑‑‑Abductees had denied to have made any statement before the Mukhtiarkar who was not even examined by prosecution‑‑‑Accused were acquitted in circumstances..

12. Abdul Hakim and others v. The State PLD 1982 Kar. 975 and Roshan v. The State 1985 PCr.LJ 2312 rel.

(b) Criminal Procedure Code (V of 1898)‑‑‑

13. ‑‑‑Ss.164 & 265‑J‑‑‑Statements of prosecution witnesses recorded under S.164, Cr.P.C. can be treated as substantive pieces of evidence provided such statements are recorded in presence of accused persons and they are given notice in writing and an opportunity of cross‑examination of such witnesses.

14. Abdul Hakim and others v. The State PLD 1982 Kar. 975 and Roshan v. The State 1985 PCr.LJ 2312 rel.

15. Azizullah K. Shaikh for Appellants.

16. Shaukat H. Zubedi, Asstt. A.‑G. for the State.

17. Date of hearing: 18th February, 1992.

JUDGMENT

18. SYED HAIDER ALI PIRZADA, J: ‑‑ The appellants Mumtaz and Ibrahim were charged and tried under section 365‑A read with section 34, P.P.C. before the learned Special Judge (Suppression of Terrorist Activities), Larkana Division at Larkana who has convicted the appellants and sentenced them to suffer imprisonment for life and also ordered forfeiture of property of each of them vide judgment, dated 12‑11‑1991.

19. The brief facts of the prosecution case are that on 2‑3‑1991 the complainant A.S.I. Amanullah Dayo of Police Station Dakhan along with his subordinate staff had gone for patrolling duty in their area, as per Daily Entry No.5, dated 2‑3‑1991. During patrol duty, on receipt of spy information, recovered the abductees namely Haji Dil Murad Ghanghro and Muhammad Amin Ghangro and apprehended dacoits/accused Mumtaz Ghangro and Ibrahim Panhyar along with their unlicensed gun and revolver of .32 bore and came at police post and lodged F.I.R., a report which reads as under:‑

20. "I along with subordinates namely C/628 AN Hassan, C/20 Shahzado Khan, C/768 Ali Hyder, duly armed with weapons and in uniforms proceeded from P.P. Nabi Shah Wagon for patrolling in area, as per daily diary entry No.5/1610/2‑3‑1991. While patrolling we reached a bridge of Sim canal, on road running from Jacobabad to Ratodero, when we received spy information that some dacoits had abducted some unknown persons for ransom and now they confined them secretly in a `Katcha' room at shrine of Pir Bari. Having such spy information, I alongwith that abovementioned staff at once left for that place. As per received information, we reached at shrine of Pir Bari at 1830 hours in the evening. We looked closely at the pre -pointed out `Katcha' room, and found four (4) persons armed with weapons/standing there in room. We tactfully at once encircled them and disclosing our identity as police, gave them `hakal' (challenge) and advanced towards them. On seeing us, the said accused opened direct fires upon us. We took positions and made firing in our self‑defence. We narrowed the circle and captured two men along with gun and revolver while two persons made good their escape by taking advantage of jungle. We enquired from the captured accused about their names, etc. Out of them, one accused told his name as Mumtaz son of Illahi Bux by caste Ghanehro r/o village Maobool Shah taluka Rato Dero, while the other told his name as Ibrahim s/o Karem Khan, caste Panhyar r/o Fatehpur taluka Garhi Yaseen. In the meanwhile, we heard cries from `Katcha' room saying `save us, we have been abducted'. Those abductees including the said accused were sitting near in a `Katcha' room. Those abductees were recovered. They were enquired about their names, who disclosed their names as 1. Haji Dil Murad s/o Azmat and 2. Muhammad Amin s/o Sultan by caste Ghanghro r/o village Moosa‑ji‑Wandh, taluka Ratodero. They further disclosed: "We had been abducted from our `dero' (grainary) by the said accused about 15 days back at night and the accused hack, sent a `chit' to our relatives for money (ransom). The accused used to confine us secretly at different places. Since tonight the accused have confine us here. The names of those accused persons are Mumtaz Ghanghro and Ibrahim Panhyar. The accused persons are the same which you police have arrested. The names of the fleeing accused are Hakim Thahim and Jano Thahim, on seeing them again, we could identify. Out of the fleeing accused, one was armed with Klashnikov and other with gun". Thereafter I enquired from the captured accused Mumtaz Ghanghro about the licence of recovered gun, who disclosed it as unlicensed. Accused Ibrahim was enquired about licence of recovered revolver, who disclosed it as unlicensed. Both the abovementioned accused were arrested. The search of their persons was conducted separately. From the search of person of accused Mumtaz, they recovered one bag filled with ten (10) live cartridges of .12 bore. And from the search of person of accused Ibrahim, they recovered twelve (12) live bullets of .32 bore revolver from left side pocket of his shirt. The same things were taken into possession of police. Such mashirnama regarding arrest of accused, recovery of unlicensed weapons, cartridges, bullets and recovery of two abductees was prepared on the spot, with the signatures of mashir C/Ali Hyder and C/Shahzado Khan. Taking the abovementioned arrested accused and recovered abductees, in custody along with prepared mashirnama and unlicensed weapons recovered from the possession of accused, we came at P.P. Nabi Shah Wagon. On behalf of State, complaint is being lodged against the abovementioned accused persons. That, the abovementioned all the four accused persons had abducted the abovementioned two persons from the `dera' during night about (15) days back for taking ransom and they had made hindrance in discharge of our legal duty and they had opened straight fires upon us with Klashnikov, guns and revolver with intention to commit out murders. I have fired thirty (30) rounds with my official Klashnikov in my self‑defence. The other staff will give details of their fires in their statements. Separate cases under section 13‑D, Arms Ordinance will be registered against the arrested accused in respect of unlicensed weapons recovered from their possession."

21. He alongwith subordinates, taking copy of the Roznamcha, recovered abductees, arrested accused and weapons recovered from their possession, went to Police Station Dakhan for registration of case in 154, Cr.P.C. Book and making compliance under section 157, Cr.P.C. The accused were sent to police lock‑up. He directed the abductees to appear at the police station on the next day for recording their 164, Cr.P.C. statements before the Magistrate. On 3‑3‑1991 he proceeded to village Fatehpur, taluka Shikarpur. He took Nazir Hussain and Ghulam Shabbir from village Nabi Shah. He searched the house of Janoo and Haku who had absconded from the place of occurrence in presence of above‑named mashirs. Both the accused persons who had absconded were absent. He recovered nothing from the house. He prepared a mashirnama and read over to mashirs Nazir Arain and Ghulam Shabbir. He recorded statement of Sultan father of abductee Amin. Sultan produced a letter before him in the presence of mashirs Ali Hyder and Shahzado. He prepared a mashirnama and read over the same to mashirs. He produced mashirnama as Ext. 3‑D. He produced letter produced by Sattar as Exh. 3‑C. He produced Haji Dilmurad before the Mukhtiarkar & F.C.M. Garhi Yasin for recording 164, Cr.P.C. statement. His statement was recorded. On 5‑3‑1991 he got recorded 164, Cr.P.C. statement of P.W. Muhammad Amin before the Court.

22. A formal charge was framed against the appellants to which they pleaded not guilty and claimed to be tried.

23. At the trial, prosecution examined complainant A.S.I. Amanullah Dakhan P.S. as P.W.1. He produced F.I.R. as Exh.3‑A, mashirnama regarding arrest, search of person, recovery of revolver, cartridges, bullets, fired empty shells and recovery of abductees as Exh.3‑B, mashirnama of search of house as Exh.3‑C, mashirnama regarding production of chit as Exh.3‑D and chit as Exh. 3‑E. P.W. 2 Dilmurad Exh. 4 and P.W. 3 Muhammad as Exh 5 (they did not support the prosecution and were declared hostile and cross‑examined), they denied that their 164, Cr.P.C. statements were recorded before ,the Mukhtiarkar and F.C.M. Garhi Yasin. P.W.4 (Exh. 6) Police Constable Ali Hyder has supported the evidence of complainant. P.W. 5 Sultan Exh. 11 has stated that he had not received any chit written by his son Muhammad Amin. He has stated that they had brought pressure over police and they got them released through police. He did not support the prosecution and was declared hostile and was cross‑examined).

24. After close of the prosecution case, the statements of the accused were recorded in which they denied the allegations. They have further stated that they have been implicated due to enmity with police and weapons were foisted on them. However, accused did not examine themselves on oath nor any witness was examined by them in their defence.

25. After taking into consideration the evidence adduced by the prosecution and the statements of the accused, the learned Special Judge was pleased to convict the appellants as described above. The learned Special Judge relied on the statements under section 164, Cr.P.C. recorded by the Magistrate in presence of accused. The present appeal is directed against the above judgment of conviction.

26. We have heard Mr. Azizullah K. Shaikh, learned counsel appearing for the appellants and Mr. Shaukat H. Zubedi, learned Assistant Advocate General Sindh for the State.

27. Mr. Azizullah Shaikh raised the following contentions:‑

(1) The abductees deny that they made statements under section 164, Cr.P.C. before the Mukhtiarkar and F.C.M. Garhi Yasin. The Mukhtiarkar was not examined by the prosecution.

(2) The statements of witnesses recorded under section 164, Cr.P.C. cannot be considered as substantive evidence as conditions laid down under section 265‑J, Cr.P.C. have not been complied with.

28. On the other hand, Mr. Zubedi has not supported the impugned judgment in the facts and circumstances of the case.

29. We have considered the contentions of the learned counsel and have gone through the R & P of the case carefully. It is an admitted position that the abductees P.W. 2 Dilmurad and P.W. 3 Muhammad Amin did not support the prosecution case as far as their recovery from a room at Bari Faquir Pir's Shrine and therefore they were declared hostile and cross‑examined. Even P.W. 5 Sultan father of P.W. 3 Muhammad Amin did not support the prosecution case. He stated that he had not received any chit written by his son Muhammad Amin and therefore he was also declared hostile and cross -examined.

30. The statements of P.Ws. Dilmurad and Muhammad Amin under section 164, Cr.P.C. were brought on the record under section 265‑J of the Code of Criminal Procedure. These statements could be treated as substantial E pieces of evidence provided such statements were recorded in presence o accused persons and accused persons were given notice in writing and an opportunity of cross‑examination. Admittedly, the accused/appellants were not represented, therefore the right of cross‑examination had not effectively bee exercised by them. In these circumstances, in our view, statements under section 164, Cr.P.C. of Dilmurad and Muhammad Amin could not be create as substantive pieces of evidence.

31. This question has been considered by a Division Bench of this Court in the case of Abdul Hakim and other v. The State PLD 1982 Kar. 975 in which the learned Judges of the Division Bench have come to the conclusion, after giving cogent reasons, that "the statement should be recorded in the presence of the accused, the accused should have notice of the recording of such statement and he should also be given opportunity of cross‑examining the witness. On fulfilment of these conditions, the statement could be brought on record, within the discretion of the Court". This decision was followed by a Division Bench of this Court in Roshan v. The State (1985 PCr.LJ 2312). We are in respectful agreement with these decisions of the Division Benches for the reasons given by them in their judgments and as such we are of the opinion that no reliance can be placed on the statements of Dilmurad and Muhammad Amin.

32. The P.Ws. Dilmurad and Muhammad Amin denied that they made any statement before the Mukhtiarkar & F.C.M. Garhi Yasin. It is pertinent to b note that the Mukhtiarkar was not even examined by the prosecution. We are, therefore, of the confirmed view that the statements could not have been brought on record.

33. We therefore, allow this appeal, set aside the conviction and sentences of the appellants and they are acquitted of the charges. The appellants were ordered to be released forthwith if not required in any other case.

34. The above are the reasons for our short order dated 18‑2‑1992 passed on conclusion of arguments acquitting the appellants and setting aside the conviction and sentences awarded by the trial Court to the appellants.

35. N.H.Q./M‑1610/K Appeal allowed.