NAZAR MUHAMMAD Versus THE STATE

MUHAMMAD ASLAM ARAIN, J.--- The appellants in these appeals were separately tried for offence under section 13-D, Arms Ordinance, by the Special Court (T.A.), Hyderabad, and by two separate judgments, dated 20-4-1991 they have been convicted and sentenced to suffer R.I. for 3 years each. The trial of both the appellants was conducted separately but since the incident was the same and the evidence is also the same, we propose to dispose of the appeals by a single judgment.

2. The facts in brief are that Muhammad Khan Ranjha S.H.O., Police Station Tando Jam alongwith D.S.P. Nazir Ahmed Jagirani, S.I.P. Ghulam Nabi, H.C. Raza Muhammad and other police officials left Police Station Tando Jam for investigation of Crime Nos. 113 and 114 of 1990 under section 265-A, P.P.C. They reached Police Post Tando Qaiser, from where they took other staff and came near Otaq of one Usman Panwar. At 4-30 p.m. there was firing from the said Otaq, on which the police party took position and fired in their defence. 8 dacoits succeeded in running away while 2 persons came out from Otaq and surrendered themselves before police alongwith their arms. The said two accused are appellants Shafi Muhammad and Nazar Muhammad.

3. It was the case of the prosecution that from appellant Shafi Muhammad, one kk, 3 magazine loaded with 65 bullets and 35 separate bullets were recovered. From appellant Nazar Muhammad one kk, two magazines, one empty and one loaded with 30 bullets and 60 separate bullets were recovered. Since the two accused had no licence for the said arms, they were arrested by police under Mashirnama, signed by S.I.P. Ghulam Nabi and A.S.-I. Ghulam Nabi. They were taken to Police Station Tando Jam, where two separate F.I.Rs. Nos. 118/90 and 117/90 under section I3-D, Arms Ordinance were registered. After necessary investigation cases against appellants were separately challaned in the Special Court (Terrorist Activities), Hyderabad and were tried in Special Cases Nos.407 of 1990 and 406 of 1990.

4. Charge under section 13-D, Arms Ordinance was framed against the appellants on 27-12-1990 to which they pleaded not guilty.

5. In each case, the prosecution examined P.W.1 Ghulam Nabi (Exh.5). He stated that on 21-10-1990, he was S.I.P. Tando Jam Police Station and on that date, D.S.P. Nazir Ahmed Jangirani took him, S.H.O. Ranjha and other staff for investigation of Crime Nos.113 and 114 of 1990. They left police station at 7-00 a.m. and reached Tando Qaiser of Police Post within 15 minutes. H.C. Haji Khan and others accompanied them. They reached near Usman Panwar's Otaq at 4-30 p.m. There was firing at the police party from the Otaq and police also fired in defence. They saw 8 culprits running away. The police surrounded the Otaq and two persons surrendered alongwith their arms. The arrested accused gave their names as Shafi Muhammad anti Nazar Muhammad (appellants in these appeals). The arms secured from the accused were noted down in the Mashirnama Exh.6 (photostat copy). Two other dacoits armed with guns and cartridges were also arrested from one room who gave their names as Muhammad Khan and Achar. The Otaq was searched and two abductees tied on chains were rescued and they gave their names as Khuda Bux and Ibrahim. The Mashirnama of arrest of the appellants, co-accused and- the two abductees Khuda Bux and Ibrahim (Exh.6) was signed by S.I.P. Ghulam Nabi and A.S.-I. Ghulam Nabi.

P.W.2 Muhammad Khan Ranjah was the S.H.O. of Police Station Tando Jam and he had accompanied the D.S.P. and other staff for the investigation of Crime Nos. 113 and 114 of 1990. He stated that the police patty came to Police Post Tando Qatser wherefrom other staff was taken and then they all left on foot. When they reached near Usman's Otaq there was firing at the police party who also fired in defence. Two persons with kk and other ammunition surrendered before the police and they are said to be the present appellants. He also stated that Mashirnama (Exh.6) was prepared by him which was signed by S.I.P. Ghulam Nabi and A.S.-I. Ghulam Nabi. He produced the two F.I.Rs. Nos.119/90 and 117/90 in both the cases separately. The prosecution closed its side vide statement Exh.9.

Statement of appellant Shafi Muhammad under section 342, Cr.P.C was recorded as Exh.10 and he denied the allegations against him. He stated that he was arrested from his village in presence of Ghulam Nabi Councillor, Saindad and Jehan Khan. He produced certified copies of depositions of Khuda Bux and Muhammad Ibrahim, the alleged abductees in the main case under sections 307, 149, P.P.C. (State v. Nazeer Muhammad Khatio and others) Exhs.11 and 12. Certified copy of deposition of H.C Ghulam Akbar was produced as Exh.14. He also examined D.W.1 Saindad Exh.15, D.W.2 Jahan Khan Exh.16 and D. W.3 P.C. Shamsuddin Exh.18

In the case against appellant Nazar Muhammad, the prosecution examined the same witnesses S.I.P. Ghulam Nabi and S.H.O. Muhammad Khan Ranjha. Appellant Nazar Muhammad in his statement under section 342, Cr.P.C. denied the allegations against him and stated that he was arrested from his village in presence of Ghulam Nabi, Saindad and Jahan Khan. He also produced certified copies of deposition of Muhammad Ibrahim and Khuda Bux in the main case as Exhs.11 and 12. He also examined D.Ws. Saindad, Jehan Khan and P.C. Shamsuddin as Exhs.15, 16 and 18.

6. By short judgments, dated 20-4-1991, the learned trial Court separately convicted both the appellants to R.I. for 3 years and the present appeals arise out of the said judgments.

7. Mr. S. Madad Ali Shah, the learned counsel for the appellants, has raised the following contentions before us:--

(a) No independent witness was examined in the case except the two police officials;

(b) No independent witness was associated by the police party while they were leaving for investigation of the two crimes referred to above. The arrest of the accused and recovery is not witnessed by any independent witness of the village and there is thus non-compliance of the provisions of section 103, Cr.P.C.

(c) There is material contradiction in the evidence of two police witnesses on the point of preparation of Mashirnama (Exh.6);

(d) The case property was neither produced in Court nor any question was put to accused in their 342, Cr.P.C. statement about the recovery of alleged weapons;

(e) The alleged recovery of arms is joint recovery shown in one Mashirnama Exh.6, which was not inadmissible in evidence;

(f) The trial Court has not considered defence of the accused and has rejected the evidence of D.Ws. without cogent grounds.

It is contended by Mr. S. Madad Ali Shah; the learned Advocate for the appellants except two police officials no independent witness was examined by the prosecution. The two alleged abductees Muhammad Ibrahim and Khuda Bux, who were recovered from the Otaq, were not examined and they were given up by the prosecution, as is evident from the case diary dated 10-2-1991. None from the village was associated and the arrest and recovery therefore, become highly doubtful. He also contended that the two abductees were examined in the main case but they did not support the prosecution in the matter of recovery of unlicensed arms and ammunition from the two appellants. The learned Advocate relied on Dost Muhammad v. The State 1986 SCMR 462, where, the conviction in a case under section 13, Arms Ordinance was based on evidence of three witnesses belonging to the Police Department and no independent public witness was examined. The conviction was set aside by the Honourable Supreme Court. He also placed reliance on Yameen Kumhar v. The State PLD 1990 Kar. 275 and it was observed that where the case of prosecution depends entirely on recovery of arms and ammunition care has to be taken by Court to scrutinise the statement of witness for recovery with caution and the prosecution should also take care to produce independent and reliable witness to prove the recovery. It was also observed that the evidence of Investigating Officer itself cannot be sufficient for the purposes of conviction and his solitary statement in circumstances when he had produced the witnesses to act as Mashirs becomes very doubtful cannot be relied upon to convict the accused. Same view was taken in Niaz Muhammad v. The State 1990 PCr.LJ 331 and Nasir Abbas v. The State 1991 PCr.LJ 1378.

It is also contended that there is material contradiction between the evidence of P.W. S.I.P. Ghulam Nabi and S.H.O. Muhammad Khan Ranjha on the point of preparation of Mashirnama Exh.6. The learned Advocate pointed out to the evidence of S.I.P. Ghulam Nabi who stated that the Mashirnama of arrest and recovery was written by S.H.O. Muhammad Khan Ranjha, while the S.H.O. himself stated that the Mashirnama was dictated by him to P.C. Shamman. In these circumstances, the entire recovery and arrest become highly doubtful. The learned Advocate referred to Niaz Muhammad v. The State 1990 PCr.LJ 331 where it was observed "contradictions in depositions of police officials might be minor in themselves but when taken cumulatively and seen in background of absence of any independent witness, assumed greater significance and vitiated authenticity of prosecution evidence. Reference is also made to Iftikhar Ahmed alias Bobi and another v. The State 1991 PCr.LJ 488 (Federal Shariat Court).

It is next contended that the police party consisting of about 30/35 persons were outside the Otaq and no one was injured and thus the whole prosecution story looks improbable. Weapons allegedly secured from accused were not sent to Ballistic Expert to determine whether the same were used or were automatic or semi-automatic weapons.

The learned Advocate next contended that joint recovery of allegedly secured weapons and arms was shown in one Maihirnama. The arms were not produced in Court nor exhibited during evidence of the recovery witness. No question was put to the accused with regard to the arms so secured front them. In these circumstances .the arrest and recovery becomes highly doubtful. In this respect, reliance is placed on Habibullah Khan and another v. The State 1989 PCr. LJ 1555.

The last contention of the learned Advocate is that the defence evidence was not considered and no reason is shown by the trial Court to disbelieve the same. In support of this contention, reliance is placed on Syed Muhammad Shah v. The State 1991 SCMR 2016 where it was held that merely because a witness was a neighbour of accused would not mean that his evidence could not be relied upon. In these circumstances, the Honourable Supreme Court set aside the conviction under section 30-E, Arms Ordinance.

Mr. Zubair Ahmed, the learned Advocate appearing for the State supported the judgment of the trial Court and contended that there was a sudden encounter when independent witness could not have been procured. He however, conceded that on the point of preparation of Mashirnama, Exh.6, there was a material contradiction as pointed out by appellant's learned counsel.

We have heard the learned Advocate at length and gone through the evidence, perused the judgment and case-law referred. It is not clear from evidence as to why the police party headed by D.S,P. Nazir Ahmed Jagirani and Senior Police Officials of Tandojam Police Station went to a place near Otaq of Usman Panwhar. There was no spy information that some gang of dacoits or kidnappers were hiding in the said Otaq. There seems no obvious reason for the police to have gone to the said place. It has also come in evidence that the police party consisted of 30/35 persons and 8 dacoits escaped while two surrendered. It was day time and 8 dacoits quietly escaped, without their being even hurt.

If the police had any advance information about the presence of dacoits and some hostages at the Otaq of Usman, a place where the police party went, it was necessary for them to have associated private witness which they have failed to do. The persons namely Muhammad Ibrahim and Khuda Bux were said to have been secured from the Otaq and they were both chained and were probably hostages. These two hostages were given up by the prosecution and were not examined in cases under Arms Ordinance. They have however, been examined in the main case and the certified copies of their depositions were filed by the appellants' their statement under section 342, Cr.P.C. Both these witnesses have not implicated the appellants. The perusal of their statements in the main case clearly leads to an inference that the version of encounter given by the police and arrest of two appellants from the Otaq is totally false.

There is material contradiction between the evidence of P.W. Ghulam Nabi and the S.H.O. Muhammad Khan Ranjha on the point of preparation of Mashirnama of arrest and recovery (Exh.6). P.W. Ghulam Nabi who was S.I.P. Tandojam stated that the Mashirnama was written by S.H.O., whereas S.H.O. himself stated that it was dictated by him to Mashir P.C. Shamman. The P.C Shamman whose full name Shamsuddin was examined by appellants in their defence vide Exh.18 and he has denied to have written the Mashirnama. Thus, the evidence of the two police officials S.I.P. Ghulam Nabi and S.H.O. Mead Khan Ranjha, besides being contradictory, is belied by P.C. Shamsuddin alias Shamman. The recovery and arrest of the two appellants in these circumstances become highly doubtful and we rule out the same out of consideration.

Three defence witnesses namely Saindad, Jahan Khan and Shamsuddin were examined by the accused who have categorically stated that appellants were arrested from their village. The learned trial Court has rejected the evidence of two defence witnesses Saindad and Jahan Khan with the observation that though they have claimed to be the Nekmards of the village, they did not make any application or representation against the arrest of the accused nor approached higher authority about the so-called illegal arrest of accused. This approach of the trial Court in our view was unwarranted by law. The two defence witnesses were Nekmards of their villages and there was no reason for them to have falsely stated that appellants Nazar Muhammad and Shaft Muhammad were arrested by police from the village.

The arms recovered from the two appellants were neither sealed at the spot nor sent to Ballistic Expert for examination. These arms were even not exhibited in the Court. Only P.W. Ghulam Nabi stated in his deposition that "the accused Shafi Muhammad same person in court. So also property". S.H.O. Ranjha Khan also stated "I challaned accused Shafi Muhammad He is same person in Court, his klashnikov and ammunition present in Court are same" These arms and ammunitions alleged recovered from the two appellants were not shown to the accused while their statement under section 342; Cr.P.C. was recorded and no question was put to the accused as to whether the arms and ammunitions in Court were the same recovered from them.

Another aspect of the case to which we would like to advert is, that D.S.P. Nazir Ahmed Jagirani, who was heading the police party was not examined by the prosecution. No reason is shown for keeping him away during the trial of the accused. The two alleged abductees Muhammad Ibrahim and Khuda Bux, were also not examined in the case under Arms Ordinance. Their evidence in the main case has falsified the entire incident. The prosecution had miserably failed to prove their case against the appellants and the scanty evidence of the two Police Officers was not sufficient to bring home the guilt of the accused. We consider the evidence of recovery and arrest to be highly doubtful particularly when there is material contradiction as pointed out earlier. The conviction in these circumstances cannot be sustained.

For the reasons stated above we allow the appeals, set aside the conviction/sentences and acquit the, appellants. They shall be released forthwith if not required in any other case.

N.H.Q./N-12/K Appeals accepted.