1. KAMAL MANSUR ALAM, J.---This appeal has been filed by the appellant under section 7(1) of the Suppression of Terrorists Activities Act, 1975, challenging the order dated 28-6-1990 passed by the learned Special' Court (Terrorist Activities) Hyderabad whereby the appellant was sentenced to undergo 4 years' R.I. And to pay a fine of Rs.1,000 or in default undergo R.I. For 6 months more.
2. The case of the prosecution as disclosed in the F.I.R. Is that on 4-1-1990 the complainant Mr. Manzoor Hussain, the S.H.O. `A' Section Lateefabad, received information at about 5-00 p.m. To the effect that the appellant Nasir Abbas, who was allegedly an absconder in another Case Crime No.13/89 registered under sections 149, 1.48 and 302, P.P.C. In the same Police Station, would be coming to Nasim Market, Lateefabad, between 7-00 p.m. And 9-00 p.m. The S.H.O. Thereupon constituted a police party consisting of himself, S.I.P. Muhammad Farooq H.C. Ghulam Asghar, A.S.I.
3. Rashid, H.C. Muhammad Khan, P.C. Dhani Bux, L.H.C. Aftab Hussain Shah, P.C. Muhammad Hussain, P.C. Niaz Hussain, P.C. Shamsuddin, L.N.K. Ghulam Abbas, P.C. Shakeel Ahmed, L.N.K. Muhammad Inayat, P.C. Muhammad Sarwar, P.C. Nizamuddin, P.C. Muhammad Yaqoob and vide Station Diary entry No.40 left the police station at 6-45 p.m. For Nasim Market in a Government vehicle reaching that market at 7-00 p.m. The vehicle was parked at some distance of the market and `Nakabandi' was held. The appellant with a small beard wearing black Shalwar and black Shirt entered the market at 8-00 p.m. Whereupon the police party surrounded him and apprehended him. On personal search of the appellant the S.H.O. Secured from the right fold of his Shalwar one T.I. Pistol loaded with 8 bullets in its magazine of which the appellant had no licence. S.I.P. Muhammad Farooq and H.C. Muhammad Asghar acted as Mashir to the recovery of the said pistol and bullets.
4. On enquiry the appellant is said to have disclosed his name as Nisar Abbas son of Illahi Bux resident of House No.154, Khawaja Colony, Unit No.8, Lateefabad. The appellant was arrested and the police party alongwith the appellant and the recovered property came back to the police station and a case under section 13-D of the Arms Ordinance was registered against the appellant for illegally keeping weapon in his possession.
5. After completion of investigation challan was submitted before A.C.M. Lateefabad on 17-1-1990 and later, on 4-4-90, the case was sent to the Special Court of Suppression of Terrorist Activities at Hyderabad.
6. We have heard Mr. Shoaib Ahmed Bukhari, learned counsel for the appellant and Mr. Shoukat Hussain Zubaidi learned Assistant Advocate-General for the State.
7. From the Court diary it seems that for all practical purposes the proceedings in the case commenced before the learned Special Court on 26-6-1990 when the appellant was produced in Court in jail custody but there was no defence counsel present. The Court framed the charge (Exh.2) on that date and two prosecution witnesses, S.I.P. Muhammad Farooq and Inspector Manzoor Khaskheli were examined, however, none of these witnesses were cross---examined, apparently due to the absence of any defence counsel. The prosecution closed its side on the same day and the case was put of for 28-6-1990 i.e. Just two days later, for defence evidence. On 28-6-1990 the appellant was again produced in Jail custody but once again in the absence of any defence counsel, defence witness Mir Muhammad Azhar was examined. On the same day the arguments were heard and the judgment announced by the Court convicting the appellant.
8. P.W.1 Muhammad Farooq stated that he was S.I.P. At Police Station `A' Section, Lateefabad, and Manzoor Hussain Khaskheli was the S.H.O. Of that police station. On spy information received by the S.H.O. That the appellant, required in Crime Case No.13/89, was to come to Nasim Market between 7-00 p.m. And 9-00 p.m. Wearing black colour shalwar and shirt, he constituted a police party consisting of himself, the witness and other staff. This party vide entry No.40 in Station Diary left the police station at 6-45 p.m. In Government vehicle and reached Nasim Market at 7-00 p.m. The vehicle was parked at a distant place. The appellant wearing black colour shirt and Shalwar entered the Market at 8-00 p.m. The appellant was surrounded by the police party and the S.H.O.
9. Searched him and from the right fold of his shalwar secured T.T. Pistol loaded with 8 bullets in its magazine. The witness states that the appellant admitted that he had no licence for the mouser.
10. The S.H.O. Seized the property and prepared a Mashirnama on the spot. This witness and H.C.
11. Muhammad Asghar acted as Mashirs. The witness further states that "the S.H.O. Did not call upon private persons as the accused is very dangerous person and no body would have come forward to act as Mashir. The witness produced the Mashirnama as Exh.5 and identified in Court the pistol, the bullets and the magazine and the accused.
12. P.W.2 Manzoor Hussain has in his examination-in-chief given the same story as given by P.W.1 about receiving spy information, constitution of police party, proceeding to Nasim Market, apprehending the appellant, securing one T.T. Pistol with 8 bullets etc. However, while giving the reason for making the two police personnel S.1.P. Farooq and H.C. Asghar as Mashir, this witness had tried to improve upon the case by saying "Nobody came forward to act as Mashir, due to fear of this accused. And it was therefore I made police official as Mashir" He produced the F.I.R. As Exh.7.
13. The accused (appellant herein) in his statement before the Special Court denied the allegation of recovery of the pistol and bullets from him. He has also stated that his name is Nasir and not Nasir Abbas.
14. The defence witness Mir Muhammad Azhar stated that "I know the accused, his name is Nasir, he has shop of Carom Board. I know him since 5 years, in my opinion he is a man of good character."
15. In cross-examination this witness stated that "accused is my friend, the accused is not with me all the time, on the alleged time I was not with the accused".
16. We are also not impressed by the inconsistent reasons given by the two prosecution witnesses for non-compliance of section 103, Cr.P.C. For the alleged recovery of the pistol and bullets. In this regard P.W.1. Muhammad Farooq, who is one of the Mashirs of the recovery, has stated that "the S.H.O. Did not call upon private persons as the accused is very dangerous person and nobody would have come forward to act as Mashir." This is clearly a presumptive statement on the assumption that no person would have acted even if required to do so. On the other hand, P.W.2, Manzoor Hussain states that "nobody came forward to act as Mashir due to fear of this accused and it was, therefore, I made police officials as Mashirs". This statement is inconsistent with the statement of P.W.1 and is apparently an attempt to improve upon the reason given by P.W.1 for not making respectable independent persons as Mashirs. It was held in the case of Yammen Kumhar v.
17. The State PLD 1990 Kar. 275 that the provisions of section 103, cannot be ignored at the whims of the Investigating Officer except on well---founded grounds and in exceptional cases and that if recovery was made in contravention of section 103 it was the duty of the prosecution to give reasonable explanation therefor.
18. The upshot of the above discussion is that the appeal is allowed, the conviction and sentence are set aside and the appellant is ordered to be released forthwith if not required in any other case.
19. We have decided the above appeal on. 28-11-1990 by a short order passed on conclusion of the arguments and the above are the reasons therefor.