WAZIR ALI QAZI Versus THE STATE
1. SYED HAIDER ALI PIRZADA, J. --- Wazir Ali Qazi son of Jamaluddin was barged for offence under section 13-D, Arms Ordinance, 1965 and tried by the Presiding Officer, Special Court No.III (Suppression of Terrorist Activities), Karachi, who has convicted and sentenced him to suffer R.I. for three years vide judgment, dated 14-9-1991 ,
2. The facts giving rise to the present appeal are that on 8th November, 1990 at 6-00 hours, Sultan Masood Kiyani alongwith staff reached in the area of Khuwasti Brohi Goth. The raid was conducted in a house of Elahi Bukhsh, which was adjacent to the mosque. The culprits made firing on the police party and the police in defence, made counter-firing. After some time firing stopped. The police party surrounded the house. The house was under-construction and there was no boundary wall of the house and even doors were not available. The accused/appellant was there in possession of mini klashnikov containing 5 rounds with magazine, which was duly taken into police possession under the memo. of seizure of arms and arrest of the accused/appellant vide Exh.8. Since this act of the accused/appellant appeared to fall under section 13-A, Arms Ordinance, a case was registered vide F.I.R. Exh.5. On completion of the investigation, the accused was challaned before the Court.
3. A formal charge was framed against the appellant to which he pleaded not guilty.
4. At the trial, prosecution examined Inspector Anwar Zeb P.W.1 who was posted at C I.A.-II, Karachi. He submitted the charge-sheet after verifying the contents of Mashirnama and 161, Cr.P.C. statements from the Mashirs; H.C. Muhammad Rafiq P.W.2 who was posted as Duty Officer in Police Station Khawaja Ajmair Nagri, who has stated that H.C. Amir Bux came alongwith statement, he recorded F.I.R. which he produced as Exh.5; H.C. Muhammad Azhar P.W.3 who was posted in C.I.A., Karachi and who has stated that he alongwith police party and other police personnel went to Sohrab Goth Bus-stop and arrested accused/appellant Wazir Ali who was purchasing vegetables from there and according to whom the accused was brought at the C.I.A. Centre who was empty-handed at that time. This witness was declared hostile and was cross- examined by the A.P.P. The prosecution also examined Muhammad Asghar as P.W.4 who acted as Mashir. He has stated that he was purchasing vegetable in Subzi Mandi, Karachi, when he was taken by Inspector Sultan Masood Kiyani. He has stated that one man. was in police custody, Police requested him to accompany them to witness the Wardat. He further stated that the accused was apprehended and arrested by the police alongwith three persons from Wardat in Gulberg area. From the possession of the accused, police recovered K.K. with rounds. He has produced Mashirnama as Exh.8. In his cross-examination, he admitted that he was made witness in more than one cases. Inspector Sultan Masood Kiyani, P.W.5 has narrated the same facts as stated in F.I.R. He has produced sketch of arm, which he prepared, as Exh.10. He has stated that he picked P.W.4 Muhammad Asghar from Piyala Hotel. He denied the suggestion that he picked up Mashir Muhammad Asghar from Sabzi Mandi, Karachi. He has admitted in his cross-examination that P.W.4 Muhammad Asghar deposed in one or two cases of his. He has further admitted that Mashirs were collected at a distance of one or one and half kilometres from the place of Wardat. Ballistic Expert's Report was produced as Exh.11
5. After close of the prosecution case, the statement of the appellant was recorded under section 342, Cr.P.C. in which he denied the allegations made against him. He has stated that he is resident of Sohrab Goth, Karachi. He is a driver. He has further stated that nothing was recovered from him. A question was put to him that he was in possession of klashnikov, which he denied. He has examined himself on oath under section 340(2), Cr.P.C. He has stated that he was not arrested from Khawasti Brohi Goth and no encounter had taken place He is innocent and he denied the suggestion that mini K.K. was recovered from him by police.
6. After taking into consideration the evidence adduced by the prosecution and accused/appellant, the learned Presiding Officer, Court No.3 (Suppression of Terrorist Activities), Karachi convicted the appellant as described above and the present appeal has been filed against the above judgment of conviction.
7. Mr. Khawaja Naveed, the learned counsel appearing for the appellant raised the following three contentions:--
(1) The language of the charge did not disclose the commission of any offence by the appellant, and therefore, did not make him liable under section 9 read with section 13-D of the Arms Ordinance.
(2) The Inspector Sultan Masood Kiyani did not choose to state that he had asked for the production of the licence.
(3) The provisions of section 103, Cr.P.C. have not complied with in the instant case.
8. Mr. Shoukat H. Zubedi, the learned Assistant Advocate-General, Sindh appearing for the State has fairly conceded that the language of the charge did not disclose the commission of any offence by the appellant. He submitted that the prosecution has failed to establish the charge in the instant case.
9. We have considered the contentions of 'the' learned counsel. It is advantageous to reproduce the relevant portion of the charge which thus reads:--
10. "----from your possession police recovered one klashnikov with five cartridges and magazines and thereby committed an offence punishable under section 13, Arms Ordinance, which is within cognizance of this Court and I hereby direct you to be tried by this Court on the said charge."
11. A perusal of the charge would show that the appellant was in possession of one mini Klashnikov with five cartridges and magazines. Possessing an arm without a licence constitutes an offence under section 13 of the Arms Ordinance. It is pertinent to note that the words "without a valid licence" are not at all mentioned in the charge. This had prejudiced the appellant and in the circumstances, it rendered him not liable under section 13 of the Arms Ordinance.
12. We have perused the statement of P.Ws.1 Anwar Zeb, Muhammad Rafiq, Amir Bux, Muhammad Asghar and Sultan Masood Kiyani recorded at the time of trial of the case. P.W.1 Anwar Zeb has stated that he does not know whether the weapon recovered from the appellant was licensed. P.W.2 Muhammad Rafiq has only recorded F.I.R. P.W.3 H.C. Amir Bux has stated that appellant was arrested from Sohrab Goth where he was purchasing vegetables. Then the accused was brought at C.I.A. Centre and the accused was empty-handed. He was declared hostile. P.W.4 Muhammad Asghar is a stock -witness and is not resident of locality. P.W.5, Inspector Sultan Masood Kiyani has stated that appellant was found at the place of Wardat and in possession of a mini klashnikov containing 5 rounds with one magazine. The appellant could not produce any licence for the said property. We have also perused the statement of appellant recorded under section 342, Cr.P.C. The only question was put to the accused was "you were found in possession of mini-klashnikov loaded with -magazine and rounds on 8-11-1990 and were arrested by the police as you could not produce any valid licence for the same".
13. We hold that the language of the charge, statements of P.Ws. and the statement of the accused under section 342, Cr.P.C. would show that there was no mention about valid licence, which not only prejudiced the appellant, but rendered him not liable under section 13 of the Arms Ordinance.
14. Reverting to the second contention that the prosecution has not established their case against the appellant and as such the conviction would not be sustainable, it is suffice to observe that a perusal of statement of P.W.5 Inspector Sultan Masood Kiyani shows that he did not state that he had asked for the production of the licence from the appellant. The other witnesses did not state that Inspector had asked the appellant for the production of the licence. The learned Presiding Officer also did not put the appellant that the Inspector had asked him to produce the licence and he failed to produce the same. This question was considered by a Division Bench of this Court comprising of Muhammad Ali Sayeed and Agha Ali Hyder, JJ. in Parano v. The State 1972 PCr.LJ 165 and after giving cogent reasons held as under;--
15. "It goes without saying, that keeping of a gun by itself is not an offence. It becomes an offence only when some body in possession of the same does not have and cannot produce a licence therefor. It is also an axiomatic principle of law, that if a question which weighs with the Court for the determination of guilt is not put to the accused and he is precluded from giving an explanation for the same, it must be totally ruled out of consideration. As the appellant was not asked to produce the licence and as no question about it was put to him at the trial under section 342, Cr.P.C., the conviction would not be sustainable. After all, it is, for the prosecution to establish their case, which cannot be said to have been done."
16. We are in respectful agreement with this decision of the learned Judges for the reasons given by them in the said decision and as such we are of the opinion that as the appellant was not asked to produce the licence and as no question about it was put to him at the trial under section 342, Cr.P.C., the conviction would not be sustainable. In the circumstances, the prosecution have failed to establish guilt of the appellant.
17. Accord" to prosecution, the mini K.K. with magazine containing 5 cartridges was found in possession of the appellant. There is no dispute that respectable persons of the locality were not taken to act as Mashirs and P.W.5 Muhammad Asghar and Safdar Raza Zaidi had acted as Mashirs in complete violation of the provisions of section 103, Cr.P.C. The witnesses of search should be respectable and of the locality are valuable safeguards. The police have always their pet witnesses or someone can be easily hired or influenced and, therefore, it is that "respectable" and "of the locality" have been considered as necessary qualifications of the search witnesses.
18. The provisions of section 103, Cr.P.C. were examined exhaustively by a Division Bench of this Court in the case of Yameen Kumhar v. The State PLD 1990 Kar. 275 wherein it was observed at page 283 as follows:--
19. "The provisions of Chapter VII make it clear that they relate to the search of any place but cannot be restricted only to house or a close place, it can be an open place, open area, a playground, field or garden from where recovery can be made for which search is conducted. Although in strict sense the provisions of section 103, are restricted to searches under Chapter VII of Cr.P.C. it has become a practice to apply it to all recoveries made by the Police Officers while investigating any crime. The rules of justice enunciated by section 103 are so embedded in our criminal jurisprudence and so universally accepted that in all criminal cases two Mashirs are always cited for recovery and reliance is placed on these witnesses in the ordinary course provided they are independent, respectable and inhabitants of the locality. The residence of the Mashirs becomes relevant depending on the facts of the case. The emphasis should be on respectability, independence and impartiality. If the recovery is to be made on public thoroughfare, a bus stand or similar public place the witnesses picked up by the police from the road can be proper witnesses of recovery depending upon the facts and circumstances of the case. However, in order to ensure proper investigation and clear proof preference should be given to the witnesses of the locality particularly witnesses who are respectable. Witnesses procured by the police though respectable lose credibility. Where witnesses are not of the locality the Court should cautiously examine their statements."
20. This case was approved by the Honourable Supreme Court in its recent judgment, dated 2-7-1991 passed in Criminal Appeal No.9-K of 1991.
21. On close examination of the evidence, we have noticed that Mashir Muhammad Asghar is a stock-witness, The other Mashir was not examined. Even Investigation Officer P.W.5 Inspector Sultan Masood Kiyani admitted that Mashir Muhammad Asghar was witness in more than one case. He is not a resident of locality. His evidence is to be discarded.
22. For the aforesaid reasons, we allow this appeal and set aside the conviction and sentence awarded to the appellant who shall be released forthwith I D if not required in some other case.
23. N.H.Q./W-99/K Appeal allowed.