MUHAMMAD SHARIF Versus THE STATE

1. MUHAMMAD NASEEM CHAUDHRI, J .--- This appeal is directed against judgment, dated. 17-6-1996 passed by Ch. Zahoor Hussain, Judge, Special Court, Gujranwala whereby he convicted and sentenced Muhammad Sharif to undergo R.I. for a period of five- years and to pay a fine of Rs.20,000 or in default of its payment to further undergo R.I. for a period of six months under section 13 of the Arms Ordinance, 1965:

2. The facts of the prosecution case are that Maqbool Ahmad, S.I./ Incharge Police Post, Ferozewala, Police Station, Saddar Gujranwala (P.W.3) is said to be on "Gasht" of the area in the company of his subordinates when he received the information that one person was standing at Pul Rajbah while armed with .222 rifle. He reached there alongwith the police party and apprehended that person while in possession of .222 rifle P.1 for the keeping of which he could not produce the valid licence. That person was none else than the appellant Muhammad Sharif son of Allah Ditta caste Gujjar resident of village Ferozewala, District Gujranwala. The appellant was arrested. The rifle P.1 alongwith magazine P.3 containing 24 cartridges Exh.P.2/1-24 were taken into possession by Maqbool Ahmad, S.I. (P.W.3) vide memo. Exh. P.B. attested by Muhammad Khalid, Head Constable No. 1082 (P.W.4) and Inayat Baig, A. S.I. P.W. (given up). Maqbool Ahmad, S.I. sent the complaint Exh. P.A. to Police Station Saddar, Gujranwala and Ayyub Baig, Moharrar, A.S.I. prepared formal F.I.R., a copy of which is Exh.P.A./1. Maqbool Ahmad, S.I. prepared site plan Exh. P.C. of the place of recovery. Muhammad Riaz, Head Constable No.1687, Armour Police Lines, Gujranwala (P.W.1) inspected .222 rifle P.1 and gave his report Exh. P.A. to the effect that the same was semi automatic rifle of .222 bore. After completing the investigation the challan was submitted.

3. At the trial Muhammad Sharif was charged under section 13 of the Arms Ordinance who pleaded not guilty thereto. The aforesaid four P.Ws. stood in the witness-box and supported the prosecution case. Maqbool Ahmad, S.I. (P.W.3) denied the suggestion that Muhammad Sharif appellant was passing in front of Police Post Ferozewala alongwith Mahmood Ahmad licence holder who were stopped when Mahmood Ahmad left for his village Machikay Goriah to fetch the licence of .222' rifle and that in his absence Muhammad Sharif was falsely involved in this case.

4. When examined under section 342 of the Code of Criminal Procedure, Muhammad Sharif appellant refuted the aforesaid recovery of rifle P.1, cartridges P.2/1-24 and magazine P.3. He took up the plea that Mahmood Ahmad was the owner and the licence holder of rifle P.1 with whom he was going and was stopped by the police when Mahmood Ahmad was allowed to go to his house to bring the licence and that in his absence he was falsely involved. Exh. D.A. is the copy of the licence issued in the name of Mahmood Ahmad son of Inayat Ullah resident of Machikay Goriah, Tehsil and District Gujranwala. Muhammad Sharif did not choose to appear in the witness-box on oath in his defence under section 340(2) of the Code of Criminal Procedure. After hearing the parties and placing the reliance on the statements of the P.Ws., the trial Court convicted Muhammad Sharif appellant as narrated above who has preferred this appeal, which has been resisted by the State.

5. We have heard the learned counsel for the appellant as well as the learned counsel for the State and gone through the record before us. Following contradictions in the statement of Maqbool Ahmad, S.I. (P.W.3) who prepared the recovery memo. Exh. P.B. about the taking into possession of the unlicensed arms and the statement of Muhammad Khalid, H.C. (P.W.4) who attested recovery memo. Exh. P.B. have been pointed out by the learned counsel for Muhammad Sharif appellant--

(i) Maqbool Ahmad, S.I. (P.V3.3) stated that he alongwith the police party left Police Post Ferozewala at 3-00 p.m., for patrol duty; that they reached the place of recovery of rifle P.1 at about 3-45 p.m., that the sun used to set in the month of June at about 7-00 p.m. and that at the time of recovery three hours still remained for the sun to set in while Muhammad Khalid (P.W.4) stated that the sun was about to set in when the accused was apprehended by the police.

(ii) That Maqbool Ahmad, S.I. (P.W.3) stated that the place of recovery was at a distance of 2/3 furlongs from Police Post Ferozewala towards west while Muhammad Khalid (P.W.4) stated that the police party received the secret information at Kotli Michrawan about the presence of Muhammad Sharif at Pul Rajbah and that Village Kotli Michrawan was at a distance of one furlong towards west from the place of recovery.

6. With respect to the first contradiction learned counsel for the appellant argued that the difference of three hours regarding time of recovery cannot be taken lightly and that the same is enough to make doubtful the recovery of the illicit arms. With reference to the second contradiction he laid the emphasis that according to the statement of Maqbool Ahmad, S.I. the place of recovery was towards the west from that place the S.I. received the secret information while according to Muhammad Khalid, H.C. (P.W.4) the place where the secret information was received was towards the west of the place of recovery. He continued that thus according to Maqbool Ahmad, S.I. the secret information was received by him towards the east of the place of recovery while according to Muhammad Khalid, H.C. (P.W.4) the information was received towards the vest of the place of recovery. He maintained that this contradiction is enough to falsify the recovery proceedings. He argued that the prosecution has failed to

2. Registrar, Supreme Court of Pakistan, Rawalpindi to meet such a situation, as under

3. "J. P. 32-R(S)88/SCJ

4. Supreme Court of Pakistan

5. Rawalpindi, August, 20, 1990

6. From,

7. The Registrar, Supreme Court of Pakistan, Rawalpindi.

8. To

(1) The Inspector-General of Police,

9. Punjab, Lahore.

(2) The Inspector-General of Police,

10. Sindh, Karachi.

(3) The Inspector-General of Police,

11. N.W.F.P., Peshawar.

(4) The Inspector-General of Police,

12. Balochistan, Quetta.'

13. Sub: WITNESSES OF RECOVERY IN CRIMINAL CASES '

14. Dear Sir,

15. It has come to the notice of this Court that in a large number of 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.

16. (Sd.)

17. (M.A. Latif).

9. The aforesaid letter was also sent to all the District and sessions Judges posted in Punjab by the Registrar, Lahore High Court, Lahore through the despatch of following letter:--

18. LAHORE HIGH COURT, LAHORE

19. No. 17712-Genl/ 1-G

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

21. From

22. The Registrar,

23. Lahore High Court,

24. Lahore.

25. To

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

27. Subject: WITNESSES OF RECOVERY IN CRIMINAL CASES

28. Sir,

29. 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.

30. Your, obedient servant,

31. (Sd.)

32. DEPUTY REGISTRAR (ADMN.) for Registrar

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

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

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

36. (Sd.)

37. DEPUTY REGISTRAR (ADMN) for Registrar."

10. There is no explanation on the record as to why Maqbool Ahmad, S.I. (P.W.3) failed to associate witnesses of the public in this case wherein the secret information was received before the recovery of the illicit arms as the public in, the way was available on the road side and the shops. Obviously, the alleged raid/recovery was planned well in advance due to the secret information received by Maqbool Ahmad, S.I. (P.W.3) especially when, as expressed above, the sole ingredient of alleged recovery of unlicensed arms is being analysed and dissected. We hold the view that the directions contained in the aforesaid letter, dated 20-8-1990 issued by the Registrar, Supreme Court of Pakistan, Rawalpindi to the Inspector-General of Police, Punjab, Lahore are also binding on this Court. In the absence of any explanation as to why the witnesses of public have not been associated in the recovery proceedings in this case we hold that the alleged recovery has to be viewed with caution, which has not been established by the prosecution on this ground.

11. For what has been said above, we hold that there was no justification to convict Muhammad Sharif appellant, we, therefore accept this appeal, set aside the impugned judgment, dated 17-6-1996 and acquit Muhammad Sharif appellant. He shall be set at liberty forthwith, if not required in any other case.

38. H.B.T./M-501/L Appeal accepted.