IRFANULLAH Versus STATE

MUHAMMAD ASLAM ARAIN, J .‑‑‑We propose to decide all the 5 appeals by this single judgment as the incident is the same and one F.I.R. being Crime No.64/89 was registered at P.S: City Hyderabad. One challan was submitted but it was split up into 5 cases and trial of each case was separately held. The conviction is also recorded in each case separately. On conclusion of the arguments of the learned Advocates before us, we had, by a short order elated 16‑6‑1991, allowed all the appeals and had set aside the conviction and sentence of all the appellants. The reasons for our short order are as follows:‑‑‑

2. The facts of the case are that ors 29‑4‑1989, Munawar Hussain S.I.P. of City Police Station, Hyderabad, left the police station at 8.25 a.m. alongwith his subordinates H.C. Muhammad Khan and P.C. Ali Hassan in a police van being driven by P.C. Ghulam Rabbani. At 10.00 a.m. the police party reached Khawaja Gharib Nawaz Bridge where the members of law enforcing agency joined them. They started checking the vehicles when at 10.35 a.m., an off white colour suzuki car with registration No.236‑768 came from bus stand side and or receiving signal from the checking party it stopped. Four persons were seated in the car, who, during enquiry disclosed their names as Irfanullah, Waseem Khawar, Fasihullah and Iftikhar Ahmed (the appellants in all the 5, appeals). Each one of them had under their thigh a Klashnikov. Iftikhar Ahmed was occupying the driver's seat with Waseem Khawar on the front seat while Fasihullah and Iftikhar were on the rare seat.

3. The four occupants were called out from the car and the 4 Klashnikovs under their thighs secured, which were loaded with bullets, the numbers whereof are given in the F.I.R. The accused admitted that they did not hold licences for the arms. Diggi of the car was opened where one .7 mm rifle, a double barrel gun, one repeater and 2 magazines each containing 27 bullets, were found lying, besides other documents like the licence of .7 mm rifle in the name of Salimuddin, tax receipts, car registration card etc. Weapons and other articles together with the car were secured by S.I.P. Munawar Hussain, who prepared Mashirnama and H.C. Muhammad Khan and P.C. Ali. Hassan acted as Mashirs.

4. The accused and the property secured were taken to City P.S. Hyderabad where one F.I.R. under section 13(D), Arms Ordinance read with section 188, P.P.C. was registered by S.H.O. Irshad Ali as Crime No.64/89 at 11.30 a.m. After usual investigation all the 4 accused were challaned in the Court of A.C.M. Cantt. Hyderabad, who sent the case to the Court of Special Judge (STA) Hyderabad.

5. On 23‑6‑1990, the A.P.P. moved an application for bifurcating the cases into 5 cases, which was allowed on the same day in the following manner:‑‑

"After perusal of the F.I.R. and the Mashirnama of recovery, I agree with the contention of learned A.P.P. Accused would not be prejudiced in any manner. I, therefore, order that the case be split into 5 cases and this Case bearing No.159/89 be treated as case under section 13(E), Arms Ordinance against all the 4 accused and 4 fresh cases be registered, one against each accused for offence under section 13(D), Arms Ordinance."

Accordingly, all the 4 accused were jointly tried for offence under section 13(E), Arms Ordinance for having arms in their possession without licence and this case was numbered as 159/89. For the alleged recovery of a Klashnikov from under the thigh of each accused, they were separately tried for an offence under section 13(D), Arms Ordinance for going armed with automatic weapons without licence in contravention of provisions of section 8 of the Arms Ordinance. These 4 cases before the trial Court were numbered as Case Nos. 223, 224, 225 and 226 of 1990.

6. In Criminal Case No.159/89 under section 13(E), Arms Ordinance all the 4 accused were convicted and sentenced to 3 years' R.I. and a fine of Rs.5,000 or in default to suffer imprisonment for 6 months more. Criminal Appeal No.40 of 1991 before this Court is directed against the conviction and sentence in the said Case 159 of 1989.

7. In the 4 cases under section 13(D), Arms Ordinance numbered as 223, 224, 225 and 226 of 1990 the appellants were convicted and sentenced to imprisonment for 5 years each, fine of Rs.10,000 and in default to suffer imprisonment for 12 months more. Criminal Appeals Nos.41 of 1991, 42 of 1991, 43 of 1991 and 44 of 1991 are directed against the conviction and sentence in the said 4 cases. The appeals are separately filed before this Court and numbered as above.

8. In all the 5 cases, the trial Court examined 3 witnesses each, namely, H.C. Muhammad Khan, S.I.P. Munawar Hussain and S.H.O. Irshad Ali. The appellant/accused Irfan in his statement under section 342 of Cr.P.C. denied the prosecution allegation as also the incident. He stated that he was arrested from his house at 7.00 a.m. on 29‑4‑1990 and the co‑accused were not known to, him. He further stated that the administration wanted to detain the MOM Leader Mr. Altaf Hussain with whom the Government had confrontation and it was all a drama staged by administration to rope in maximum number of MOM workers on false allegations. He also gave the details of other cases in which he was falsely involved. The rest of the appellants/accused also gave similar statements showing the time and place as also manner of their arrest. All the appellants also examined themselves on oath. Ameer Hussain, Muhammad Masharaf, Sattar Hussain and Muhammad Murtaza were examined by the appellants in their defence.

9. Mr. Nawab. Mirza, the learned Advocate for the appellants has contended that all the 3 witnesses examined are police officials and none from the public was associated during the arrest and search proceedings. The place of alleged incident is admittedly a thickly populated area having shops, hawkers and the public going around but none was called to act as Mashir to the said proceedings. This, according to the learned Advocate, is in violation of section 24 of Arms Ordinance, which provides the manner, in which search is to be conducted. Section 24 reads: ‑‑‑

"When a search is to be made for any of the purposes of this Ordinance, such search shall be made under the provisions of the Code of Criminal Procedure, 1898 (Act V of 1898).

Section 103 of Cr.P.C. provides that the officer or other person about' to make search shall call upon 2 or more respectable inhabitants of the locality in which the place to be searched is situate to attend and witness the search. Since in the instant case Police Officer failed to call the respectable persons of the locality to witness the search and recovery proceedings, there is clear violation of section 103 of Cr.P.C. The case‑law referred by the learned Advocate in support of this contention is (i) Muhammad Riaz v. The State 1988 PCr.LJ 2004; (ii) Salahuddin alias Bille v. The State 1988 PCr.LJ 2164; (iii) Muhammad Ameer v. The State 1990 PCr.LJ 84; (iv) Yamin Kumhar v. The State PLD 1990 Karachi 275 and (v) Dost Muhammad v. The State 1986 SCMR 462.

The learned Advocate has also filed photostat copies of judgments of this Court in'(a) Criminal Appeal No.46 of 1989 (Obaidullah v. The State), in which Mr. Aftab Ahmed Akhund, the present A.‑G. Sindh had appeared as Advocate for the appellant; and (b) Criminal Appeal No.128 of 1990 (Nasir Abbas v. The State) and in both the appeals the conviction recorded by Special Court, constituted under the Suppression of Terrorist Activities Act, was set aside, besides others, for the reasons that the compliance of section 103, Cr.P.C. was not made as no witness from public was associated in search, recovery or arrest proceedings.

It is also contended by the learned Advocate that the arms allegedly recovered from the Diggi of the car or lying under the thigh of each appellant were not exhibited during trial, but only Mashirnama was produced through S.I.P. Munawar Hussain and no specific question in respect of recovery of illicit arms was put to the accused while recording their statement under section 342,. Cr.P.C. As such the failure of prosecution to produce and exhibit the recovered articles and non‑compliance of provisions of section 342, Cr.P.C. had materially prejudiced the accused in their defence, resulting into failure of justice. Reliance in this respect is placed on Habibullah Khan and another v. The State 1989 PCr.LJ 1555.

10. Mr. Aftab Ahmed Akhund, the learned Advocate‑General, Sindh, has not supported the conviction in all the 5 cases. It is conceded that witnesses from public could have been available if desired by the police to be called to act as Mashirs. Even if no witness from public was available, the members of armed forces, in aid of police were admittedly present and had joined the police in checking the vehicles. Such persons had even accompanied the police upto police station but none was associated to act as a Mashir. None of them was even cited as a witness. There is a clear violation of provisions of section 103 of Cr.P.C. and on this ground alone, the appellants are entitled to acquittal. Another very important lacuna in the prosecution case has been pointed out by the learned A.‑G. This is with regard to the evidence of S.I.P. Munawar Hussain, who was the Head of Police party. It is pointed out that in all the cases, the stand taken by the prosecution is that the only Mashirnama for search, recovery and arrest was prepared and written by S.I.P. Munawar Hussain at the scene of offence. But in evidence, in Case No.223 of 1990 (State v. Irfanullah, the appellant in Criminal Appeal No.41 of 1991), P.W. Muhammad Khan, H.C. has categorically deposed that Mashirnama was written by W.H.C. Liaquat Ali. It will be appropriate to reproduce a portion of his evidence in cross‑examination.

"We had taken 15‑20 minutes in preparation of Mashirnama. Liaquat Ali is W.H.C. of City P.S. It is correct that Mashirnama is written by W.H.C. Liaquat. We had called him at the time of writing of Mashirnama. It is not writing of Mr. Munawar."

Similarly S.I.P. Munawar in his deposition in the same case (223/90) stated as follows:‑‑‑

"Liaquat is W.H.C. of City P.S. Mashirnama (Exh.4/1) is in writing of W.H.C. Liaquat. He was not with the part rolling party. He had come there for some work and I had dictated this Mashirnama."

According to the learned A.G. this witness S.I.P. Munawar Hussain, in all the other four cases, by deposing that the Mashirnama of recovery and arrest was prepared by him at site had in fact perjured when the true facts were that the Mashirnama was written by W.H.C. Liaquat Ali at police station and not at site. In his view, the trial Court should have proceeded against S.I.P. Munawar Hussain for giving false evidence. But in any case, this being the state of affairs, a serious doubt is cast over the entire case of prosecution in all the 5 cases.

11. We have heard the arguments of the learned Advocates at length and gone through the judgments and evidence. Admittedly, the place of incident is a thickly populated place where private witnesses from public were available but no efforts were made by the police to associate any such witness in arrest and recovery proceedings. The consensus of all the judgments referred to above on this point is that the provisions of section 103 of Cr.P.C. are applicable to recovery, search and arrest proceedings made during the investigation of a case and the same are mandatory, unless shown that the non-compliance of such provisions of law in certain circumstances was impracticable. Here the case of prosecution entirely depends on recovery of arms and ammunition and there being no exceptional circumstances to bypass the provisions of section 103, Cr.P.C., the police was legally bound to associate private witnesses during search, recovery and arrest proceedings.

12. We also find that the arms allegedly recovered from the appellants/accused were not produced in Court or exhibited in evidence. No specific question was put to the accused during their statement under section 342, Cr.P.C. as to whether the arms belonged to them and this in our view has caused a serious prejudice to the defence as is observed in 1989 PCr.LJ 1555. ,

13. The learned trial Court while passing an order on the application of A.P.P. for bifurcating the 5 cases, had ordered on 23‑6‑1990 that the case be split into 5 cases and 4 fresh cases be registered one against each accused for offence under section 13(D), Arms Ordinance. This direction of the trial Court also does not seem to have been carried out and only one F.I.R. being Crime' No.64 of 1989 under section 13(D), Arms Ordinance and 188, P.P.C. has been made the basis of trial of all the 5 cases. The reasons for such lapse on the part of the investigation agency or the trial Court are not forthcoming.

14. We have also gone through the reasons given by the trial Court for discarding the defence evidence. All that has been observed is that the witnesses examined by each one of the appellants in their defence did not hold any representative status and the manner in which they deposed was unbelievable. These reasons in our view are neither cogent nor in keeping with correct appreciation of evidence.

15. In our view, the case against the appellants was not proved and the conviction cannot be sustained. The appeals are allowed and the conviction and sentence are set aside.

H.B.T./I‑174/K Appeals allowed.