1. ALLAH DINO G. MEMON, J.--- The appellants were charged under section 9 read with section 13-E of the West Pakistan Arms Ordinance 1965 and tried before the learned Judge, Special Court No.1 (Suppression of Terrorist Activities) Karachi, who has convicted and sentenced them to suffer R.I.
2. For six years. However, they have been given benefit of section 382-B, Cr.P.C. Vide judgment dated 1st April, 1990.
3. The brief facts giving rise to the present appeal are that on 25-11-1989 Inspector Sultan Masood Kayani posted at C.I.A. Karachi accompanied by staff went to Super Highway to search offenders in connection of Crime No. 577/89 under section 365/34, P.P.C. Of Police Station Ferozabad. They went some distance ahead from Toll Plaza towards Hyderabad on spy information, when at about 4-45 a.m. They stopped a wagon having white colour bearing No.022-869 which was being driven by accused/appellant Saleem, while accused/appellant Bakht Marin was sitting by his side. On search of the wagon in the presence of Mashirs, Shahid and Ansar, the following arms were recovered from a secret panel of the Wagon. One Klashnikov bearing No.66-156/5094926/57760 alongwith one magazine. One rifle alongwith magazine made in China special quality is written in English.
4. One .32 bore revolver without number. One .32 bore pistol without number. One Mouser .30 bore alongwith magazine without number. 109 bullets of Klashnikov, 20 bullets of .32 bore Revolver, 23 bullets of .32 bore pistol and 20 bullets of mouser were recovered from a cloth bag such Mashirnama was prepared in presence of the above Mashirs. Inspector Kayani sent such report to the Duty Officer, Police Station Gadap, Karachi.
5. The above report was incorporated in 154, Cr.P.C. Book by S.I. Barkat Hussain. .
6. After necessary investigation the appellants were sent up before the learned Judge.
7. A formal charge was framed against the appellants to which they pleaded not guilty.
8. At the trial prosecution examined Mouladad Khan Ballistic Expert P.W.1, he has produced the ballistic expert report as Exh.2-A, Mashir Shahid Iqbal P.W.2, he has produced the Mashirnama of recovery as Exh.3-A, Mr. Niaz Hussain Shah the then A.C.M. Court No.XI, C.I.A. Karachi P.W.3, he had recorded the judicial confessions of the appellants and have produced the same as Exh.4-A and Exh.4-B. He has also produced the letter of police for recording confession as Exh.4-C. Inspector Sultan Masood Kayani P.W.4 he has produced his report sent to the Duty Officer Police Station Gadap Karachi as Exh.5-A, and the F.I.R. Recorded in 154, Cr.P.C. Book as Exh.5-B.
9. After the close of the prosecution case, the statements of the appellants were recorded under section 342, Cr.P.C. In which they have denied the allegations. Accused Saleem Khan has further stated that he alongwith co---accused Bakht Marin were coming to Karachi in Ford Wagon bearing No.022-869. The police party headed by Inspector Kayani had stopped them. The police arrested him but he could not say whether the police had recovered arms and ammunition from the Ford Wagon or from somewhere else. He has further stated that he was produced before a Magistrate, who locked him up in a room for about half an hour. Thereafter his statement was not recorded but his signature was taken on the statement, which is a part of Exh.4/B. He could not say as to why the witnesses had deposed against him. He has further stated that co-accused Bakht Marin met him at Khanot and told him that there were some ladies with him and he wanted that he should take them in his Ford Van to Karachi. He then took his Van to the place of accused Bakht Marin at Khanot. Co-accused Bakht Marin made him to sit in his Bhaitak as according to him the ladies were to sit in the Van. After about 15 minutes, Bakht Marin called him and informed him that the ladies have been seated in the Van. He then drove his Ford Van to Karachi. At the Toll Plaza, near Karachi the police stopped them and arrested them. The police allowed the ladies to go away but arrested him and Bakht Marin. They were first taken to Gulzar-e-Hijri Police Station and the arms in Court were placed on the table and they were told that the same had been recovered from their van. Thereafter the case against them was registered. He has produced five challans as Exh.6-A. He has admitted that they had no licence for the arms.
10. Appellant Bakht Marin has stated that he had come in the Van of co---accused Saleem from Khanot towards Karachi. On the Super Highway, near Toll Palaza, the police party stopped them.
11. The police did not interrogated him. The police did not recover any arms from the Van in which they were travelling nor he had pointed out to the police the place from where the arms and ammunition were recovered. There were ladies with them. They were taken to some office or Court where they were made to sit in a closed room. Thereafter his thumb-- impression was taken on the statement/confession Exh.4-A. He had not made any statement/confession before a Magistrate.
12. He has no licence for arms and ammunition.
13. However, appellants did not examine themselves on oath as envisaged by section 340(2), Cr.P.C.
14. Nor examined any witness in their defence.
15. The learned Judge, Special Court, after taking into consideration the evidence produced by the prosecution and the statements of the appellants, has convicted the appellants as described above, and the present appeal is directed against the above judgment of conviction.
16. We have heard Mr. Sarfraz Khan Tanoli learned counsel appearing for the appellants, Mr. Shaukat H.
17. Zubedi learned A.A.-G. Appearing for the State, and have gone through the R&P of the case.
18. It was contended by Mr. Sarfraz Khan Tanoli learned counsel appearing for the appellants, that Mashir Shahid Iqbal was a chance witness and was stock witness of the police and therefore, no reliance could be placed on his evidence. He has further contended that according to the prosecution five weapons were recovered from the appellants but the charge as well as the evidence of Mouladad Khan, Ballistic Expert and Mashir Shahid Iqbal, speak only about three weapons. That the evidence regarding the place of recovery in the Van from where the weapons were secured is contradictory and, therefore, no reliance could be placed on recovery. That the confessions were recorded on 7th day of arrest of the accused, and therefore, the same could not be relied upon.
19. Mr. Shaukat H. Zubedi learned A.A.-G. Appearing for the State has contended that appellant Saleem Khan was the owner and driver of the Van in question and he can be burdened with knowledge of keeping the arms and ammunition in the Wagon, and therefore, he has been rightly convicted.
20. However, there was no evidence to show that appellant Bakht Marin knew that the arms and ammunition were kept in the Van and, therefore, he was entitled to benefit of doubt.
21. We have considered the contentions. The evidence of recovery is fully supported by Mashir Shahid Iqbal P.W.2 Mashirnama of seizure Exh.3-A, complainant Sultan Masood, P.W.4 and F.I.R. Exh.5-A.
22. Their evidence appears to be straightforward, natural and reliable. It has not been shaken in any way in cross-examination. The Mashirs and the complainant had no enmity with the appellants and they had stopped the wagon on spy information, and had no reason to falsely implicate the appellants.
23. Adverting to the first contention of Mr. Sarfraz Khan Tanoli, learned counsel appearing for the appellants that Mashir Shahid Iqbal was a chance witness and was stock-witness of the police.
24. There is nothing on record to show that he had acted as Mashir of police in number of cases. A question was suggested to him in cross-examination and his reply was:-- "I have never given evidence in any Court before this."
25. Even complainant Sultan Masood, Inspector has denied the suggestion and has stated that:-- "At no time Mashir Shahid Iqbal had previously acted as Mashir in a case investigated by me."
26. The learned counsel for the appellant has relied upon a copy of challan produced as Exh.6-A, through appellant Salim Khan wherein the name of one Shahid Iqbal son of Noor Muhammad is mentioned as witness. Unfortunately, Mashir Shahid Iqbal was not confronted with the above document nor other documents were produced to show that he had acted as Mashir in number of cases. Even if we accept that Mashir Shahid Iqbal had acted as Mashir in the case of The State v.
27. Dad Muhammad and Pahalwan as mentioned in Exh.6: there is no evidence that his evidence was actually recorded in that case and that he had also acted as Mashir in other cases.
28. "The above factors would not make the witness a false witness, particularly, when there is nothing to show that he had any personal grudge or grievance against the accused."
29. Adverting to the allegation that Mashir Shahid Iqbal was chance witness, witness has given explanation that he had gone to Gadap to deliver cement blocks from where he and other men were picked up by the police to act as Mashirs. The complainant has stated in cross-examination that:-- "The two Mashirs were going along the Highway when he stopped them and requested them to act as Mashirs. He had stopped the two Mashirs before searching the van and recovery of arms."
30. No question was suggested to Mashir with regard to his character, and there is nothing on record to show that he was not a respectable person and, therefore, the contention of Mr. Tanoli that the Mashir is stock-witness and a chance witness is untenable.
31. Adverting to the second contention of Mr. Sarfraz Khan Tanoli the Mashir Shahid Iqbal and complainant Sultan Mehmood have fully supported the recovery of weapons and ammunition, as described in the F.I.R. And Mashirnama of recovery. No doubt, the evidence of Mr. Mouladad Khan Ballistic Expert P.W.1, shows that he had examined Klashnikov China made rifle, and a pistol without number, but the report Exh.2-A shows that apart from the above three weapons, he had examined one .30 bore pistol and .32 bore revolver also. The report further shows that Klashnikov 7.62 bore rifle, 7.65 (.32) bore pistol were automatic type of weapons. It further shows that .30 bore pistol (mouser type) was automatic weapon having semi automatic system of firing while .32 bore revolver was under the category of single shot firing. Likewise, Mahsir Shahid Iqbal has also spoken about a Klashnikov, a rifle and a pistol, but the Mashirnama of recovery Exh.3-A shows that five weapons were recovered. The contents of Mashirnama have not been denied by Mashir Shahid Iqbal and he has slated that Mashirnama was read over to him and he had signed it. The F.I.R.
32. Produced as Exh.5-A clearly mentions that the above five weapons were recovered from the wagon occupied by the present appellants and the complainant has fully supported the contents of his F.I.R. However, it appears that through mistake the charge was framed against the appellants in respect of three automatic weapons and the ammunition, and the learned counsel for the State examined ballistic expert Mr. Mouladad Khan, and Mashir Shahid Iqbal on the point of recovery of three weapons and ammunition. Be that as it may, this discrepancy does not affect the prosecution case in any way as three weapons regarding which two witnesses have deposed are automatic weapons and are alleged to have been recovered from the appellants.
33. Adverting to the last contention of Mr. Tanoli there is no doubt that there is some discrepancy with regard to the place from which the weapons and ammunition were recovered. The Mashirnama of recovery Exh.3-A shows that arms and ammunition were recovered from secret cavity, on removing the packing made of cardboard m which screw was got fitted of the body of wagon, on its right side of the rear seat of the driver seat. Mashir Shahid Iqbal has stated in his examination- in-chief that:--- "The police recovered from a secret compartment in the wagon, a Klashinkov, a rifle and a pistol.
34. Besides three arms, police had recovered a cloth bag containing different kinds of cartridges and live rounds."
35. ""The arms and ammunition were in a compartment of the wagon, as already stated by me."
36. "Actually, the arms and ammunition were secured from the driver's side of the wagon in between the front seat and the rear seat."
37. Complainant Sultan Masood has stated in cross-examination of Mr. Suleman Badshah, Advocate that:-- "The arms and ammunition were recovered from the portion of the side of the Van which was immediately behind the driver seat on the left side."
38. As far as the judicial confessions are concerned, it is an admitted position that the appellants were arrested on 25-11-1989 and their judicial confessions are recorded on 13-12-1989. Letter, Exh.4-C, dated 28-11-1989 shows that the accused were produced for confessions before the Magistrate on 29-11-1989 and the Magistrate was pleased to order:-- "Fixed on 5-12-1989.
39. There is no explanation as to why the confessions of the accused/appellants were not recorded even on 29-11-1989. Moreover, no proper mandatory warnings were given by the Magistrate to the accused inasmuch as the accused were not informed that they were before a Magistrate, and whether they make the confession or not they will not be sent back to police custody. According to Mr. Nisar Hussain Shah, the then Additional City Magistrate who recorded the confession, the accused had made the confessions in Urdu but there is no certificate at the foot of the confession as required by section 364, Cr.P.C. By now it is well-settled that the Magistrate, who records confession of the accused, must take it as solemn duty and must make his best efforts to find out whether the confession was voluntary and true. Even the learned Magistrate has not appended the necessary certificate.
40. "The delay over 24 hours would normally be fatal to the acceptance of the judicial confession and in the circumstances of the case, the confession is ruled out of consideration.
2. In the case of Abdul Haleem v. The State 1984 P Cr. L J 611 it was observed that:-- "Courts must look for strict compliance of subsection (3) of section 164, Cr.P.C. Before proceeding to determine the voluntary character of the confessional statement. It has been noticed that the Magistrates who are charged with a duty of recording confession do not take the process of recording confession seriously with the result that they invariably act in mechanical way without applying their mind as to the legal prerequisites to be observed and the manner in which their compliance is to be made. It is high time that the procedure, which is followed in recording confession is reiterated for their guidance. Magistrates would be well --advised to follow the procedure which is given below:-- As soon as accused is produced for confession, his hand cuffs should be removed and all the police officers should be turned out from the Court room. Thereafter, the accused should be informed that he is before a Magistrate and whether he made statement or not he would not be given back to the police who had produced him before Court but would be remanded to the judicial lock-up. He should then be given sufficient time to ponder over the matter. Thereafter, he should be warned that he is not bound to make any statement but if he did so, it could be used as evidence against him. Then, following questions should be put to him:--
(i) For how long have you been with police? , . . .
(n) Has any pressure been brought to bear upon you to make confession?
41. (i.e) Have you been threatened to make confession?
(iv) Has any inducement been given to you?
(v) Why are you making this confession?
(vi) Have you been maltreated by police?
42. After recording the accused's answers to the above questions, if the Magistrate is satisfied that he is making confession voluntarily, he would then put such questions to him, as are given in the printed form and then he should proceed to record his confession in verbatim:'
43. Adverting to the question, regarding responsibility of the two accused and the quantum of sentence, it is the case of the prosecution against appellant Salim Khan, that the wagon from which the arms and ammunition were recovered belonged to appellant Salim Khan, while co-.Accused Bakht Marin was a passenger. Looking to the place where the arms and ammunitions were kept it was necessary for the prosecution to prove that co-accused/appellant Bakht Marin had either kept arms and ammunitions himself in the Van or he knew that the arms and ammunition were secretly kept. Unfortunately there is no evidence on this point, and, therefore, the case of accused Bakht Marin is doubtful and therefore, while extending benefit of doubt to him; we allow his appeal, set aside his conviction and sentence and acquit him of a charge. He shall be released forthwith if not required in any other case.
44. However, as far as appellant Salim Khan is concerned, he is the owner of the Wagon and he was only person, who could know as to where the weapons and ammunition were kept. The way, the weapons and ammunition were secretly kept in the wagon, we are of the considered view that appellant Salim Khan had kept the arms and ammunition secretly, and he was rightly convicted.
45. However, we have given our anxious consideration to the question of sentence. The incident took place on 25-11-1989 and the appellant has all along remained in custody since the day of his arrest. He has undergone agony of protracted trial for fourteen (14) months, we therefore, reduce his sentence from six years to three years. He shall also be entitled to the benefit of provisions of section 382-B, Cr.P.C.
46. With the above modification in sentence, the appeal of appellant Salim Khan is dismissed.