1. ALLAHDINO MEMON, J: -- Appellant Abdul Ghafoor was charged and tried under section 13-D of the Arms Ordinance, before the 'learned Special Judge, Special Court No.1, Suppression of Terrorist Activties, Karachi, who has convicted him under section 13-E of the Arms Ordinance, and sentenced him to suffer R.I. For four years. However, he was given benefit of section 382-B, Cr.P.C. Vide judgment dated 5-1-1991.
2. The brief facts giving rise to the present appeal are that on 25-8-1990, Inspector Chaudhry Anwar Ali lodged a report at Police Station Pak Colony, District West, Karachi, which reads as under:-- "Tonight I Inspector Ch. Anwar Ali was busy in search of accused in investigation of Crime No. 150/1990; under sections 302, 307, 34, P.P.C. Of Police Station Pak Colony alongwith police party. In the meanwhile, Inspector Ch. Anwar Ali received spy information that arms and ammunition was available in the house of Abdullah. He picked up Liaquat Ullah Khan son of Salamatullah Khan and Mohammad Usman Khan son of Muhammad Ahsan Khan to be made as Mashirs and proceeded to the house of Abdullah situated in front of Kausar Mosque Brohi Mohallah, Shershah Village, Karachi. He knocked the door and called Abdullah at 2-30 a.m. He conducted search of his house and found a person sleeping at a cot in right side room who was awakened and he gave his name as Abdul Ghafoor son of Abdullah. Search of his cot was conducted and from right side bedding of cot one rifle of .22 bore bearing No.026216 semi-automatic and a magazine containing 18 live cartridges and two extra magazines containing 17 live rounds each were secured. On inquiry, accused could not produce any licence or documentary proof of ownership for the said rifle and, therefore; he was arrested."
3. Thereafter, the case was registered under section 13-D of the Arms Ordinance, and after necessary investigation, the case was sent up before the Court.
4. A formal charge was framed against the appellant, to which he pleaded not guilty.
5. At the trial prosecution examined complainant S.H.O. Anwar Ali, P.W.1, he has produced the F.I.R. As Exh.2/1, he has produced Mashirnama regarding arrest of accused and seizure of .22 bore rifle and three magazines loaded with 52 live cartridges as Exh.2/2, Mashirnama regarding arrest of one Ghulam Ahmed son of Ibrahim and recovery of 2 SMGs with five magazines containing 186 live cartridges as Exh.2/3, copy of application moved by Haji Lal Muhammad to D.I.-G.P Sindh Karachi for restoration of his rifle No. 026216 as Exh.2/4, Mashir Muhammad Usman, P.W.2, A.S.I.P. Fazal Hussain, P.W.3.
6. After close of the prosecution case, the statement of accused was recorded under section 342, Cr.P.C. In which he has denied the allegations. He has examined himself on oath as envisaged by section 340(2), Cr.P.C. He has also examined Haji Lal Muhammad D.W.1, Abdul Ghani son of Jan Muhammad D.W.2, Abdul Rashid son of Abdullah D.W.3, Abdullah son of Allahditto, D.W.4 and Ashraf Tariq son of Rehmat Ali D.W.5.
7. The learned Judge Special Court, after taking into consideration the evidence produced by the prosecution and defence has convicted the appellant as described above. The present appeal is directed against the above judgment of conviction.
8. We have heard Mr. SA. Ghaffar, learned counsel appearing for the appellant, Mr. Shaukat H. Zubedi learned A.A.-G. Appearing for the State, and have gone though R & P of the case.
9. It was contended by Mr. S.A. Ghaffar, learned counsel appearing for the appellant, that the case is false and is the result of enmity. That the rifle in question was a licensed rifle of Haji Lal Muhammad and the same was foisted upon the appellant. That the prosecution has failed to prove that the house in question from which the rifle is alleged to have been recovered was in exclusive possession of the appellant. Moreover, the police had no search-warrants to search the house of appellant and, therefore, the search and alleged recovery were illegal. He has further contended that there are serious contradictions in the evidence of P.Ws and the defence evidence was mis- appreciated and misread by the trial Court which has occasioned miscarriage of justice.
10. Mr. Shaukat H. Zubedi, learned A.A.-G. Appearing for the State has contended that the charge was framed under section 13-D of the Arms Ordinance, while appellant has been convicted under section 13-E of the Arms Ordinance. That the search was in violation of section 165, Cr.P.C. And there was clear violation of provision of section 103, Cr.P.C. And, therefore, he did not support the conviction of the appellant.
11. We have considered the contentions. Adverting to the first contention of Mr. SA. Ghaffar, learned counsel appearing for the appellant, regarding enmity, complainant Anwar Ali S.H.O. Has admitted that Haji Lai Muhammad had made a complaint to D.I.-G. Karachi, against him that his rifle No.026216 is lying with the police. He has also produced copy of application as Exh.2/4. He has also produced the photostat copy of newspaper `Hot News' dated 24 June, 1990, wherein one Mst.
12. Fatima had made a complaint against the Pak Colony Police about the excesses committed by the police. He has also produced another cutting of the same newspaper against the police. The accused has produced a third cutting from newspaper in which an Article was published against S.H.O. Of Pak Colony. There is also a copy of application moved by Mst. Fatima to D.I.--G. Against the police. The appellant claims to be a representative of the above newspapers and has been helping the public against excesses of Police.
13. Adverting to the second contention of Mr. SA. Ghaffar, that the rifle in question was a licensed rifle of Haji Lal Muhammad, Haji Lai Muhammad has been examined as defence witness No.1, he has deposed that police had raided his house in his absence and had taken away household articles, one .22 bore licensed rifle alongwith his two sons. He approached D.I.-G and Chief Minister on whichth his two sons were released but police did not return rifle. He has produced the photostat copy of the reply of his application sent by S.H.O. Pak Colony Police Station as Exh.7/A. He has also produced photostat copy of his licence regarding the rifle in question. He has further stated that the said rifle was taken away from his house. Even this fact has not been denied by S.H.O. Anwar Ali that Haji Lai Muhammad had made a complaint to D.I.-G. Karachi, against him that his rifle No.026216 is lying with him (S.H.O.). He has also admitted, that in his complaint, Haji Lai Muhammad had mentioned that he (S.H.O.) had taken his sons and rifle from his house on 24-8-1990. He has further stated that he informed S.S.P. West that the said rifle was a crime property of Crime No.154/1990. He has also admitted that according to the complaint of Haji Lal Muhammad, the said rifle was his licensed rifle. From the evidence of Haji Lai Muhammad as well as the admission of complainant S.H.O. Anwar Ali, it is clear that the rifle in question belonged to Haji Lai Muhammad.
14. Adverting to the third contention of Mr. S.A. Ghaffar, that the house from which the rifle is alleged to have been recovered was not in exclusive possession of the appellant, it is the case of the complainant Anwar Ali S.H.O that when he went to the house of accused and knocked the door, his father Abdullah came out of the house. It is also admitted by complainant that when they entered the house one Ghulam Muhammad was found sleeping in the room, while appellant was found sleeping in another room. From the above admissions of S.H.O. It is clear that the house in question from where the rifle is alleged to have been recovered, was not in exclusive possession of the '4 appellant. Moreover, there are serious contradictions in the evidence of complainant and Mashir Usman regarding the recovery of rifle. According to I the complainant, the accused/appellant was found sleeping on a cot and police party recovered .22 bore automatic rifle alongwith three magazins from the cot on which the accused was sleeping, while according to Mashir Muhammad Usman accused Abdul Ghaffar had produced a bag before police from which rifle and magazine were secured. From the above statements, it is clear that there was serious contradiction between S.H.O. And the Mashir regarding the recovery of rifle. According to. Mashir Muhammad Usman Klashnikov was recovered from the house of appellant. Moreover Mashir Muhammad Usman was not able to identify the rifle in question in Court, which goes a long way to show that in fact he had not witnessed the recovery. It is the prosecution case that the police party had recovered the rifle from the house of the appellant, after search, but admittedly they had no search-warrants, nor the provisions of section 165, Cr.P.C. Were complied with by S.H.O. It will be appropriate to refer to section 165(1), Cr.P.C., which reads as under:-- "(1) Whenever an officer in charge of a police station or a police officer making an investigation has reasonable grounds for believing that anything necessary for the purpose of an investigation into any offence which he is authorised to investigate may be found in any place within the, limits of the police station of which he is in charge, or to which he is attached and that such thing cannot in his opinion be otherwise obtained without undue delay, such officer may, after recording in writing the grounds of his belief and specifying in such writing, so far as possible, the thing for which search is to be made, search or cause search to be made, for such thing in any place within the limits of such station."
15. The S.H.O. Has been cross-examined on this point and he had admitted that he did not obtain any search-warrants nor he informed any of his superiors about the spy information. In such a circumstance, it was his duty to have complied with the provisions of section 165, Cr.P.C. But he did not state before the Court that he had complied with the above provisions, which was mandatory in nature. The house of the accused was admittedly situated in thickly populated area but the Mashirs selected by complainant came from far-off places and, therefore, there was non- compliance of provisions of section 103, Cr.P.C. Even the Mashirnama of recovery was not prepared at the place of recovery as admitted by Mashir Muhammad Usman who has stated at page 20 of the paper book that:-- "Police prepared Mashirnama Exh.2/2 at the police station. Police did not seal the Klashnikov and magazine in any clothes in my presence."
16. There are also contradictions with regard to the place from where Mashirs were picked up and a number of persons present with the S.H.O. At the time of raid. According to S.H.O. He picked up Mashirs Liaquat and Usman from Shershah village, while according to Mashir Muhammad Usman he was picked up while he was standing near his house in Rexar Colony. There was only one mobile and there were about 12 members in the police party. There was no other Government vehicle with that mobile nor there was any other private vehicle but according to S.H.O. They had gone in two mobiles and other law enforcing personnel were taken by them in their aid.
(1) In the case of Irfan Azam and others v. The State PLD 1986 FSC 149 it was observed that:-- "Where the recovery 'vas made from the house, on receipt of information beforehand, and no respectable person from the locality was picked up to be made as Mashir, the recovery was doubtful." and the appeal was allowed, conviction of the appellants was set aside and they were acquitted.
2. In the case of Races Khan v. The State 1991 P Cr. L J 617 wherein the accused had taken pica in a case under section 13-B, Arms Ordinance, that the revolver in question was a licensed revolver of his father. Since there were two versions, it was observed that the Court had to decide two points, firstly, whether the revolver in question was a licensed revolver belonging to the father of the accused? And whether the same was recovered from the person of the accused or from the house? Since the Court had failed to consider the first point, the appeal was allowed and the accused/appellant was acquitted.
17. In view of the above factual as well as legal position, we are of the considered view that the prosecution has failed to prove its case against the appellant beyond reasonable doubt and, therefore, the appeal is allowed, conviction and sentence of the appellant are set aside.' He is acquitted of the charge. The appellant shall be released forthwith if not required in any other case. '
18. The rifle and ammunition are ordered to be returned to Haji Lal Muhammad. Call for explanation of the A.P.P. Who was Incharge of this case, as to why he has brought the evidence, of recovery of arms and ammunition from the possession of one Ghulam Muhammad on record of this case and created confusion, alongwith the remarks of the learned trial Judge thereon.
19. We had decided the above appeal on 6-5-1991 by a short order and these are the reasons for the same.
20. K.H.O./A-1232/K