GUL NAWAZ Versus THE STATE

1. MUHAMMAD NASEEM CHAUDHRI, J.--- This appeal is directed against judgment, dated 18-10-1995 passed by Ch. Tajammal Iqbal Kamboh, Judge Special Court, Suppression of Terrorist Activities, Faisalabad-Sargodha Divisions at Faislabad whereby he convicted and sentenced Gul Narvaz appellant son of Gulbaz, caste Pathan, aged 35 years, resident of village Tani Khel Dakhli, Kamar Mashani, District Mianwali to undergo R.I. for a period of 7 years and to pay a fine of Rs.50,000 or in default of its payment to undergo further R.I. for a period of one year under section 13 of the Arms Ordinance, 1965.

2. The facts giving rise to this appeal are contained in complaint Exh.P.B. drafted by Shafqat Ullah, S.-I./S.H.O., Police Station Dawood Khel, District Mianwali (P.W.2) on the basis of which Khan Amir Moharrar, A.S.-I. (P.W.1) prepared the formal F.I.R. Exh.P.A./1. According to the recitals of complaint Exh.P.A. Shafqat Ullah, S.H.O. (P.W.2) in the company of Ahmad Khan, A.S.-I. (P.W.3), Sikandar Khan (P.W. given up), Nisar Ahmad, Constable No.346 and Khan Muhammad, Constable No.801 was going towards Pull Kala Bagh in official Vehicle No.MI 9677 being driven by Muhammad Khan, Driver at 9-30 p.m. on 3-7-1989. They reached near Chowk Mari Indus. They saw one person holding the klashnikov in his right hand who was in a wagon. He was none else than Gul Nawaz appellant son of Gulbaz who was apprehended. The S.H.O. (P.W.2) recovered klashnikov P.1, bag P.2 and Bandolier P.3 containing 4 spare magazines P.4 to P.7 all loaded with live cartridges P.1 to P.7 which contained in all live cartridges P.8/1-214. The aforesaid articles were ,taken into possession by the S.H.O. vide memo. Exh.P.B. attested by Ahmad Khan, A.S.-I. and Sikandar, A.S.-I. (given up) Gul Nawaz appellant could not produce any licence pr permit to keep the klashnikov P.1 and. the cartridges P.8/1-214 under his possession. He arrested Gul Nawaz. He drafted complaint Exh.P.A. and sent the same to Police Station Dawood Khel for registration of the formal F.I.R. where Khan Amir, A.S.-I. (P.W.1) prepared formal F.I.R. . (Exh.P.A./1) bearing No.92, dated 3-7-1989 under section 13 of the Arms Ordinance, 1965. Site Plan Exh.P.C. was prepared by Shafqat Ullah, S.H.O. (P.W.2). After completing the investigation the challan for the prosecution of Gul Nawaz appellant was submitted before the trial Court.

3. Gul Nawaz appellant was charged under section 13 of the Arms Ordinance, 1965 for keeping the unlicensed aforesaid arms mentioned in the Schedule to the Suppression of Terrorist Activities (Special Courts) Act, 1975 for which trial Court was competent to hold the trial. He pleaded not guilty thereto. At the trial the aforesaid three P.Ws. belonging to the Police Department appeared in the witness-box and supported the prosecution case. Shafqat Ullah, S.H.O. (P.W.2) and Ahmad Khan, A.S.-I. (P.W.3) deposed unanimously, when cross-examined, that they did not remember as to whether they entered the fact of their departure from the police station in the Daily Diary. It occurs in the cross-examination of Shafqat Ullah, S.H.O..(P.W.2) that he did not note the registration number of the wagon, that some passengers were present in the said wagon but he could not give their number, and that he had not noted the names of the driver, conductor and the passengers of the said wagon as it left Indus Mari Chowk after dropping Gul Nawaz accused. He stated that he mentioned in complaint Exh.P.A. that, Gul Nawaz alighted from the wagon. When confronted with complaint Exh.P.A`. it was not recorded that Gul Nawa2 alighted from wagon. He admitted that Naz Cinema and Toll Tax Post were situated on both sides of the road and just close to the place of recovery. He stated that he had not shown the main gate of the Cinema and its boundary wall in the site plan Exh.P.C. He stated that he had not cited any employee 'of Toll 'Tax Post as a witness in the case. He stated that he could not recover the fare ticket from the accused after his personal search. He denied the suggestion that he had recovered the case property from the wagon parked at Chowk Mari Indus after its passengers had gone for refreshment in Naz Cinema, that he went to the Cinema to trace out the owner of the illicit arms and that in his absence the driver drove away the wagon. Ahmad Khan, A.S.-I. (P.W.3) denied the suggestion that he as well as Sikandar Khan (P.W. given up) were neither present with Shafqat Ullah, S.H.O. nor klashnikov etc. were recovered in their presence. He denied the suggestion that in order to show the efficiency of the police, fake recovery was shown and false prosecution version was concocted.

4. After hearing the parties the trial Court gave the weight to the statements of the P. Ws. by expressing that the police officials were credible and good witnesses for recovery whose statements have established that the illicit arms (Exh. P.1), spare magazines and live cartridges were recovered from Gul Nawaz appellant. Consequently the appellant was convicted as narrated above. Hence this appeal which has been resisted by the State.

5. We have heard the learned counsel .for the appellant as well as the learned State Counsel and gone through the record before us. Learned counsel for the appellant argued that according to complaint Exh.P.A. Gul Nawaz appellant was sitting in the wagon while klashnikov P.1 was in hand which in unnatural type of conduct placed by the police before the trial Court as it cannot be expected that unlicensed klashnikov would openly be displayed in the aforesaid manner. He added that the registration number of the vehicle was not noted by the S.H.O: who also did not obtain the respective name of the driver, the conductor and of the passengers. He maintained that even the fare ticket was not taken into possession by the S.H.O. He canvassed that no independent person as required under section 103 of the Code of Criminal Procedure was joined at the time of the recovery of the illicit arms when memo. Exh.P.B. was prepared especially when the post of collection of Toll Tax and the Cinema were close to the place of recovery. He continued that it was a false case which was coined and cooked up by the police to show the fake efficiency. On the contrary learned State Counsel argued that Gul Nawaz appellant alighted from the bus who was apprehended and overpowered by the police and that there was no occasion to get the registered number of the vehicle as well as the names of the driver, conductor and the passengers. According to him the persons present at the post of collection of Toll Tax were not joined as the public is not willing to help the police in such matters and that the Police Officers being respectable persons .are as good witnesses as witnesses from the public.

6. We are, however, of the view that the assertions raised by the learned counsel for the appellant have to prevail. It is not recorded in the F.I.R. that Gul Nawaz appellant was overpowered when he alighted from the wagon and the driver drove the same immediately. P.W.2 was confronted with Exh.P.A. who stated that he had mentioned in complaint Exh.P.A. that Gul Nawaz alighted from the wagon. However, when confronted it was not mentioned that the accused alighted from the wagon: This aspect of the matter has to play the vital legal role to adversely affect the prosecution case. In the F.I.R. it is narrated that klashnikov was in the hand of the appellant while he was sitting in the wagon and the remaining illicit arms were in bag P.2 which were taken into possession. This type of conduct of an accused as projected by the prosecution is unnatural and cannot be expected which has to steal the eminence for the purpose of his exoneration. The important aspects are that the registration number of the vehicle was not noted by the S.H.O. who also did not inquire about the names of the driver, the conductor and all the passengers. The independent witnesses in the form of the driver and the conductor were 'available. There is no explanation on the record to make out that the driver of the vehicle, its conductor and the persons working at the post for the collection of Toll Tax were asked by the police to join the investigation and to witness the recovery memo. who did not agree to the same. Rather it is not the case of the prosecution. All the Police Officers of all ranks are respectable persons. However, the law has to take its course. To exemplify the confession of an accused person before any Police Officer of any rank about a case triable by the trial Court or by the Court of general jurisdiction is inadmissible in evidence in view of Article 38 of the Qanun-e-Shahadat, 1984. In view of the availability of the independent persons at the spot at the alleged time of the alleged recovery of the illicit arms and in the absence of any explanation about their non-joining or non-participation, the alleged recovery of the illicit arms can safely be held to be violative of law and section 8 of the Suppression of Terrorist Activities (Special Courts) Act, 1975 shall not play the legal role against Gul Nawaz. At this stage I have to express that the Registrar, Supreme Court of Pakistan, Rawalpindi addressed a letter, dated 20-8-1990 to the respective Inspectors-General of Police, Punjab, Sindh, N.-W.F.P. and Balochistan, a copy of which was sent to all the District and Sessions Judges in the Province of the Punjab by the Registrar, Lahore High Court, Lahore. The aforesaid letters are reproduced in toto as under:--

2. "J.B. 32-R(S)88/SCJ"

3. Supreme Court of Pakistan

4. Rawalpindi, August, 20, 1990.

5. From

6. The Registrar,

7. Supreme Court of Pakistan,

8. Rawalpindi.,

9. To

(1) ??????? The Inspector-General of Police,

10. ??????????? Punjab, Lahore.

(2) ??????? The Inspector-General of Police,

11. ??????????? Sindh, Karachi.

(3) ??????? The Inspector-General of Police,

12. ??????????? N.-W.F.P., Peshawar.

(4) ??????? The Inspector-General of Police,

13. ??????????? Balochistan, Quetta.

14. Sub: WITNESSES OF RECOVERY IN CRIMINAL CASES.

15. Dear Sir,

16. It has come to the notice of this Court that in a large number of criminal cases, the witnesses of recovery are from the police force and that the Police Officers concerned when appearing before the Court are often unable to give satisfactory explanation, why they failed to associate witnesses of the public in a case where the raid/recovery was planned well in advance. This Court has, therefore, directed that the requirement of associating non-official witnesses in such cases should be impressed upon all concerned.

(2) ??????? The Court has also directed in this context that the Courts should also examine two aspects of the issue in such cases. Is there a plausible explanation for not associating witnesses from the public; and whether some features of the cases in addition to the ocular account given by the police officials support the prosecution version when denied by the defence.

(3) ??????? It is requested that the above orders of this Court should be brought to all concerned for strict compliance.

17. (Sd. )

18. (M.A. Latif)."

19. LAHORE HIGH COURT, LAHORE

20. No. 17712-Genl. / 1-G

21. Dated Lahore, the 20th December, 1990.

22. From

23. The Registrar,

24. Lahore High Court,

25. Lahore.

26. To

27. All the District and Sessions Judges, in the Province of Punjab.

28. Subject: WITNESSES OF RECOVERY IN CRIMINAL CASES.

29. Sir,

30. I am directed to forward herewith a copy of Letter No.J.P.32-R(S)/88?SCJ, dated 20-8-1990, received from the Registrar, Supreme Court of Pakistan, Rawalpindi, on the subject noted above, for information and strict compliance by all concerned.

31. Your obedient servant

32. (Sd.)

33. DEPUTY REGISTRAR (ADMN.) for Registrar.

34. Endst. No. 17713-Genl/1-G, dated Lahore the 20th December, 1990.

35. A copy is forwarded for information to:--

36. The Registrar, Supreme Court of Pakistan, Rawalpindi, with reference to his Letter No.J.P.32-R(S)/88-SCJ, dated 20-8-1990.

37. (Sd.)

38. DEPUTY REGISTRAR (ADMN.) for Registrar. "

7. The aforesaid directions issued by the Registrar, Supreme Court of Pakistan have to be complied with by all the Police Officers of all the ranks and they cannot be ignored thereof. I have to express that this Court is also bound to follow the instructions mentioned in the aforesaid letter, dated 20-8-1990. If the directions contained in the aforesaid letter are not complied with, the recovery of the instant nature need not be given the legal weight and legally the accused involved in the matter shall derive the legal benefit. There being no plausible explanation in not associating the witnesses of the recovery from public available at the time of the alleged recovery it is enough to make out that the alleged recovery of illicit arms from Gul Nawaz appellant is false and concocted. The only irresistible conclusion which can be drawn from the aforesaid state of affairs, analysis of evidence and discussion would be that the recovery of the illicit arms attributed to Gul Nawaz appellant has no legal force so as to make him criminally liable for the charge framed against him who, as such, is entitled to be acquitted.

8. For what has been said above, we accept this appeal, set aside the impugned judgment and acquit Gul Nawaz appellant. He shall be set at liberty forthwith, if not required in any other case.

39. N.H.Q./G-52/L ??????????????????????????????????????????????????????????????????????????????????? Appeal accepted.