KHIZAR HAYAT, J.--- Raees Khan son of Muhammad Bakhsh caste Awan aged 24/26 years resident of Chak No.7/Gajiani, Tehsil Chishtian, District Bahawalnagar, was convicted under section 13-B of the West Pakistan Arms Ordinance. 1965, by Special Court, Bahawalpur, constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975, (hereinafter called, the Act) and sentenced to 7 years' R.I., and a fine of Rs.20,000 or in default of payment of fine to suffer further R.I., for 2 years, vide judgment, dated 7-7-1990. He has appealed.
2. Facts of the prosecution case briefly are that Idrees and Jarjees, brothers of Raees Khan appellant, were wanted in a murder case (F.I.R. No.176 of 1990) registered at Police Station Chishtian. On the morning of 25-5-1990 S.I. Muhammad Asghar (P.W.3) alongwith Nazir Ahmad (P.W.1) and Munir Ahmad (P.W.2) went to the house of the appellant for arresting the aforesaid accused but they were not found there. The appellant who happened to be present, at that time, on the bank of a canal just outside his house, was arrested and the S.I. Having searched his person and recovered, a .30 bore automatic pistol No. FF--3820 (f'.1) fitted with a magazine containing two bullets, tucked in the `Nefa' of his Shalwar and seized it under memo. Exh. PA. The appellant could not produce licence for keeping this arm in his possession, therefore, the S.I. Drafted complaint Exh.P.B under section 13-B of the West Pakistan Arms Ordinance, 1965, and sent it to S.H.O. Police Station Saddar Chishtian for registering a case, whereupon Inspector Dilshad Ali (given up P.W.) drew up formal F.I.R. Exh.P.B./1, accordingly. S.I. Muhammad Asghar completed investigation and the challan was submitted against the appellant, by the S.H.O. In Special Court for offence under section 13-B of Arms Ordinance was exclusively tribal by that Court.
3. At the trial, the appellant pleaded not guilty. The prosecution produced 3 witnesses, namely, Nazir Ahmad (P.W.1), Munir Ahmad (P.W.2) and S.I. Muhammad Asghar (P.W.3) in support of the charge.
They narrated the facts as given in the preceding paragraph.
4. The appellant when examined under section 342, Cr. P.C. Denied the allegations and offered to produce defence. He himself appeared in disproof of the allegations under section 340(2), Cr. P.C., (described wrongly by the trial Court as P.W.3) and gave a counter-version on oath saying that police visited his house on 25-5-1990 at 5 a.m., for arresting his elder brothers Idrees and Jirjees in a murder case. They forcibly entered their house and gave beating to him and his father and then picked up his father's licensed pistol. His father told them that is was his licensed arm but they turned a deaf ear to it and took him and his father along to the police station and then involved him in the instant case while his father was challaned in a false theft case pertaining to a buffalo.
He produced his father Muhammad Bakhsh (D.W.1) and Muhammad Munir (D.W.2) his neighbour, in support of the defence plea.
5. Learned trial Court convicted and sentenced the appellant as indicated above, observing that the `motive of the occurrence' had been proved; that the appellant `belongs to the criminal family' as his brothers and father were involved in criminal cases and that the `defence version was baseless and without any footing' whereas the prosecution succeeded `in bringing home the guilt of the accused to the extent of infinity'.
6. We have heard learned counsel for the parties and perused the record with their assistance.
7. It is a case of two versions. According to the prosecution, an unlicensed pistol (P.1) was recovered from Nefa of Shalwar of the appellant. On the other hand, appellant maintained that pistol (P.1) is a licensed arm of his father Muhammad Bakhsh which had been secured by police from within their house. The points for determination therefore, are:
(i) Whether pistol (P.1) is a licensed arm of Muhammad Bakhsh, father of the appellant? And
(ii) Whether pistol (P.1) was recovered from the person of the appellant or from the house?
It may be pointed out that the trial Court in utter disregard to the requirements of section 367, Cr.
P.C., had neither formulated point or points for determination, nor gave reasons for his decision, holding the appellant as guilty of the offence. There are ten paragraphs of the impugned judgment. First five paragraphs contain resume of the evidence of three- prosecution witnesses; in paragraphs 6 and 7, defence-witnesses' evidence is summarised; and in paragraphs 8 and 9, after making a brief discussion about provisions of section 103, Cr. P.C. (which will be referred to later), learned trial Court, at once jumped to the conclusions that defence-version was `baseless` and that the guilt of the accused was proved to the extent of infinity. We are amazed to see that the trial Court absolutely made no attempt to evaluate the evidence adduced for and against the prosecution and has advanced no reason whatsoever for accepting prosecution story in preference to defence story.
8. Muhammad Bakhsh (D.W.1) father of the appellant, appearing as defence witness, claimed pistol (P.1), the case-property in this case, to be his licensed arm and produced his licence (Exh. DA.) in the Court. But strangely enough, this evidence was not at all considered by the trial Court. It is understandable, why police closed its eyes to this aspect of the case but omission on the part of the trial Court to consider this important documentary evidence is regrettable. It amounts to non- reading of important admissible evidence. Again, there is absolutely no evidence on record about the `motive' yet the trial Court observed in paragraph 5 of the judgment that `motive of the occurrence has so far been proved'. Further, it is not the prosecution case that any Magistrate by the name of Allah Rakha Ansari had headed the raid party but still a question to this effect was asked from the appellant under section 342, Cr. P.C., which reads as under: Q. No. l. Whether it is correct that on 25-5-1990 at 5-00 a.m. At Chak No.7/Gajiani, you were standing on the bank of the canal passing nearby your residence. .30 bore pistol P.1 along with loaded magazine with two bullets P.W.1-2 was recovered from the Naifa of your worn trousers by the police raiding party, headed by Mr. Allah Rakha Ansari, Magistrate ist Class, and as a consequence of your personal search, in presence of the witnesses these articles were taken into possession by the police vide recovery memo. Exh. PA."
It means, the Court was not cognizant of the correct facts of the case being decided by it. Likewise, the observation that the appellant belongs to `criminal family is based on partial reading of exculpatory statement made by the appellant. This is violative of cordial principle of law that, statement of an accused must be accepted or rejected as a whole. Furthermore, bad character of an accused is irrelevant in criminal proceedings (see Article 68 of the Qanun-e---Shahadat, 1984).
The impugned judgment thus suffers from misreading of evidence and misapplication of law by the trial Court and is, therefore, no judgment in the eye of law. We would have remanded the case for rewriting of the judgment but on reviewing the entire evidence -we find that both the aforementioned questions (formulated by us) ought to be answered in favour of the appellant for the reasons given below: Licence (Exh. DA.) is in the name of Muhammad Bakhsh (father of the appellant). It is purported to have been issued by Section Officer, Ministry of Interior, Islamabad, on 24-2-1990 and bears No.73769/90. It bears an endorsement by District Magistrate, Bahawalnagar, dated 1-4-1990, authorising the licensee to keep .30 bore pistol bearing No.FF-3820, which is the case --property here. This licence, according to its para 7, is valid upto 31-12-1990. Its genuineness was neither challenged before the trial Court nor before us. It is, therefore, established beyond any shadow of doubt that pistol (P.1) is a licensed arm of Muhammad Bakhsh (D.W.1), father of the appellant.
The next question is, whether pistol (P.1) was recovered from the Nefa of appellant's Shalwar or from the house? In this respect, prosecution produced three witnesses. Of them, Nazir Ahmad (P.W. l) and Munir Ahmad (P.W.2) are from public. Nazir Ahmad (P.W. l) in cross-examination, admitted that the recovery was made from the house of the accused Raees Khan and that his father also lived in the same house'. Despite this admission made by the witness, he was not got declared hostile and cross-examined by the prosecution. The prosecution thus owns his evidence. Munir Ahmad (P.W.2) admitted that the police officer entered the house of the appellant although S.I. Muhammad Asghar (P.W.3) had denied this. It is apparent on the record that Muhammad Bakhsh (D.W.1) was brought to the trial Court from jail on the day his statement was recorded a, D.W.1. All these facts give enormous support to the defence version that the police entered the house, picked up licensed pistol (P.1) of appellant's father and then having arrested both of them involved them in the instant case and a them case respectively. It appears to have been done because appellant's brothers, who were wanted in a murder case, could not be arrested from their house as a result of the raid conducted by the police. Consequently. The appeal must succeed.
9. Before parting with the judgment, we may point out that in the instant case neither the signatures of the accused/appellant were obtained on his statement recorded under section 342, Cr. P.C. Nor the trial Court gave its certificate thereon as required by subsection (2) of section 364, Cr. P.C. Non-- compliance with the provisions of section 367, Cr. P.C., has already been pointed out.
These omissions on the part of the trial Court seem to be due to the misconception prevailing with the Presiding Officer that the `Special Court' is to follow the procedure given in the Act and not the one laid down in the Criminal Procedure Code, 1898, as observed by him in paragraph 8 of the impugned judgment which reads as under: "To the extent of section 103, Cr. P.C., there is no doubt that in common law prosecution has to prove its case failing which benefit of doubt always goes to the accused despite the fact that there is a clear cut charge on the accused person. This Court, being special in nature having its own procedure as envisaged in section 8 of the Suppression of Terrorist Activities (Special Courts) Act.
1975 is governed by it. Section 103 of the Criminal Procedure Code thus gives way to section 8 of the Suppression of Terrorist Activities (Special Courts) Act. 1975."
(Underlining is mine).
10. For what has gone above, we allow this appeal, set aside conviction and sentence of the appellant and acquit him. He shall be released forthwith if not I required to be detained in any other criminal case. It is further directed that pistol (f'.1) and licence (Exh. D.A) shall be immediately restored to Muhammad Bakhsh (D.W.) so that he may take steps for its renewal. Further, we recommend disciplinary action by I.-G. (Police) Punjab, against the concerned Police Officer for concocting this false case against the appellant. A copy, of this judgment be sent to all concerned, for compliance.