MOOSO vs THE STATE

1. ' ABDUL RAHIM KAZI, J.---This jail appeal has been filed challenging the judgment passed by the Special Court Suppression of Terrorist Activities, Hyderabad in case No, 113 of 1993 whereby the present appellant had been convicted under section 13-D of the Arms Ordinance and sentenced to suffer R.I. For four years and to pay a fine of Rs,5,000 or in default of payment of fine to further suffer R.I. For six months.

2. ' Briefly the facts of the case are that on 14-6-1993 the A.S.I. Sain Dino Khan having received information that one person namely, Moosa Singhar having a klashnikov was sleeping in the hotel of Ramo Mir Behar near Village of Ibrahim Chang and on receipt of such information he visited the village of Ibrahim Chang where he took Ibrahim and Siddiq to act as Mashirs and came to the hotel of Ramo Mir Bahar where he found the said person sleeping (present appellant) with a sheet over him and on removal of the sheet and search of the appellant he found one klashnikov with one magazine tied on his stomach which was recovered. The magazine had 12 live bullets. The police prepared such Mashirnama of recovery which was signed by the said Mashirs, Ibrahim and Siddiq as Mashirs. The accused and the weapons and ammunitions were then brought to the police station where the F.I.R. Was registered. After usual investigation the case was sent up for trial. The charge was framed under section 13-D of the Arms Ordinance. The prosecution examined the complainant A.S.I. Sain Din Khan and Mashir Ibrahim and closed their side. The statement of accused was recorded under section 342, Cr.P.C. Wherein he denied the above allegations and further stated he has been involved in the present case because of old enemity with the said Mashir Ibrahim Chang. He has further stated that the cousin and brother of the said Ibrahim Chang, namely, Hamzo and Mehmood had kidnaped the accused about 2-1/2 months prior to this incident and kept him in confinement at some unknown place wherefrom he was brought to the said hotel of Ramo Mir Bahar on the said date where the police party was present and they caused his arrest. The trial Court after hearing the arguments of the counsel for the parties was pleased to pass the above judgment. Being aggrieved the appellant has preferred this appeal from jail. Now, Mr. Allah Bachayo Soomro, the learned counsel has appeared on behalf of the appellant. We have heard the learned counsel for the appellant and Mr. Muhammad Shafi Memon, AA.-G. For the State.

3. The learned counsel for the appellant has urged that in the first instance the charge has wrongly been framed under section 13-D whereas the contents of F.I.R. Show that section 13-E of the Arms Ordinance would be applicable. He has plated much emphasis on the word "going". From this the learned counsel has argued that section 13-D would be applicable in case where the accused, duly armed with the weapon, is going which means walking. We are afraid we cannot agree to this contention of the learned counsel as the word "going" or "goes" used in this provision is in symbolic manner. If we were to accept the submissions of the counsel and stick to strict literary meaning of the word then even a person armed with weapon who is running would not be covered. Obviously in the present case the present appellant was found sleeping in a hotel which is not the place of his permanent abode and, therefore, symbolically he can be said to be going armed with such weapon.

4. ' The next point urged by the learned counsel is that admittedly the present appellant was arrested on 14-6-1993 whereas the case diary shows that the challan was produced in Court on 18-7-1993 which is 34 days after the arrest of the appellant. This is in violation of the provisions of section 173(1)(b), Cr.P.C. Which read as under.-- "173(1)(b) communicate, in such manner as may be prescribed by the Provincial Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given.

5. ' Provided that, where investigation is not completed within a period of fourteen days from the date of recording of the first information report under section 154, the officer-in-Charge of the police station shall, within three days of the expiration of such period, forward to the Magistrate through the Public Prosecutor, an interim report in the form prescribed by the Provincial Government stating therein the result of the investigation made until then and the Court shall commence the trial on the basis of such interim report, unless, for reasons to be recorded, the Court decides that the trial should not so commence'."

6. A plain reading of the above provisions would show that the police is required to conclude the investigation within a period of fourteen days and produced the appellant and the charge-sheet in the Court. However, in case such investigation is not concluded within fourteen days from the date of recording of the F.I.R. Under section 154, Cr.P.C., the Officer-in-Charge of the police station is mandatorily required to submit an interim charge-sheet within three days of the expiration of such period of fourteen days. This provision has not only not been complied with but is contravened. In these circumstances, we are of the view that the present appellant had remanded in unlawful custody with the police and was so at the time he was sent up for trial before the Court. Thus, the entire proceedings thereafter stand vitiated.

7. ' Accordingly, we allow this appeal and set aside the sentence and conviction awarded by the trial Court. The appellant shall be released forthwith if not required in any other case. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.