SYED HAIDER ALI PIRZADA, J - The appellant was charged and tried under Section 13-D of the Arms Ordinance before the learned Presiding Officer, Special Court (Suppression of Terrorist Activities), Hyderabad, who has convicted and sentenced him to suffer R.I. For three years vide judgment dated 23.1.1991.
The facts giving rise to the prosecution case are that on 17.9.1990 at 4-15 a.m., S.H.O. Abdul Khaliq took A.S.I. Abdul Sattar, H.C. Abdul Qayoom, constable Allah Bakhsh, H.C. Ghulam Qadir Shah, P.C.
Mohammad Iqbal, constable Mohammad Urs, constable Atta Mohammad, constable Jam Khan, constable Mohan, constable Wasand, constable Waqar Saindad, constable Jhangle Ali and constable Sher Ali for patrolling in government vehicle bearing No. 3703/G.S. Vide Daily Diary entry No. 43/0415. During the patrolling, they received spy information that Ashiq Hussain son of Bakhshan Khan Chandio resident of village Bahadur Chandio has kept kalashnikov and bullets in his house. On receiving such information, they reached the house of Ashiq Hussain Chandio in village Bahadur Chandio at about 7-00 A.M. Where they called Ashiq Hussain Chandio from outside the house, and told him that they have received information that the appellant has kept kalashnikov and bullets in his house, Therefore they will search the house. On their saying so, Ashiq Hussain admitted that he has kept kalashnikov and bullets in his house and he is prepared to produce the same. Then he fetched the kalashnikov and two magazines in which loaded 60 bullets and brown bag of cloth in which lying 17 bullets from his house, and produced the same, He was enquired about the licence of kalashnikov, who disclosed to be unlicensed.
2. Hence finding this offence under Section 13-D Arms Ordinance, the kalashnikov, magazines and bullets were taken into police possession in presence of mashirs A.S.I. Abdul Sattar and H.C. Ghulam Qadir Shah and the same has been produced as Ext.
5. Thereafter a report was lodged and the same has been produced as Ext. 8.
After necessary investigation, the appellant was sent up before the Presiding Officer, Special Court (Suppression of Terrorist Activities), Hyderabad. A formal charge was framed against the appellant to which he pleaded not guilty.
At the trial, prosecution examined A.S.I. Abdul Sattar, Mashir P.W. 1 who has produced mashirnama of arrest and recovery as Ext.
5. Inspector Abdul Khalique, complainant P.W. 2, he has produced F.I.R, as Ext. 8.
After the close of the prosecution case, the statement of the appellant was recorded under Section 342 Cr.P. Code in which he denied the allegations. He has stated that he is a student of Tando Jam University. He has stated that on 17.9.1990, he was going to the University to appear in the B.Sc. Part- 1 examination. He has produced the time table of the examination as Ext.
11. He has also produced one letter dated 21.1.1991 of the Assistant Controller of Examinations as Ext. 12 and one certificate of Assistant Professor as Ext.
13. He has stated that his father Bakhshan Khan had filed a F.I.R, on 11.9.1990 which was not investigated by police and his father had told the police that he would complain to higher authorities, on which he was arrested by police and the weapons were foisted on him. He has produced F.I.R, as Ext. 14.
3. The learned Presiding Officer, Special Court, (Suppression of Terrorist Activities), Hyderabad, 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.
We have heard Mr. A.Q. Halepota, learned counsel for the appellant, Mr. Syed Sarfraz Ahmad, learned Additional Advocate General Sindh and have gone through the evidence.
Mr. Alepot, learned counsel for the appellant raised the following contentions:-
1. The statement of the appellant "that he has kept Kalashinkov and bullets in his house" is inadmissible in evidence, because he was not as accused person or in the custody of police at the time when the alleged statement was made.
2. There was non-compliance of provisions of Section 103 Cr.P.C, inasmuch as the mashirs of recovery were subordinate to the complainant and no independent mashir was cited as a witness.
3. There are material contradictions in the statements of the P. Ws. Viz. SHO Abdul Khaliq and ASI Abdul Sattar who were examined before the trial Court.
Mr. Syed Sarfraz Ahmad learned Additional Advocate-General contended that the evidence of complainant Abdul Khaliq and mashir Abdul Sattar is independent, straight-forward and natural, The prosecution has proved its case beyond reasonable doubt against the appellant. The statement of the appellant is admissible and the provisions of Section 103 of Cr. P. Code have been complied with.
Mr. Halepota contended that the statement which the appellant made before the police officials, cannot be admitted in evidence under Article 40 of the Qanun- e-Shahadat (P.O. Of 1984).
4. In order to understand the full significance of Article 40, it is necessary to consider the two previous Articles also, because Article 40 is an exception granted on the provisions of Articles 38 and 39. These three Articles are in the following terms:- .
"38. Confession of police-officer not to be proved.- No confessions made to a police-officer shall be proved as against a person accused of any offence."
"39. Confession by accused while in custody of police not to be proved against //n.-Subject to Article 40, no confession made by any person whilest he is in the custody of a police-officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.
"40. How much of information received from accused may be proved.-When any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police-officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
Under Article 38 a confession which is made to a police officer, can not be proved against the person who is accused of an offence. This Article does not set out anything regarding the stale of the person who is making the confession. It is not necessary that the confession should be made when he is in police custody, nor is it necessary that he must be an accused person. The Article merely means that when an accused is being tried, a confession, which he, on a previous occasion made to a police officer can not be produced against him. It is not specified that the accused person must have been an accused person at the time of making the statement, not need he have been in police custody.
Article 39 deals with the case of a person who is in police custody at the time he makes the statement. It, therefore, follows of necessity that he must be an accused person, because only an accused person could be in the custody of police when he is making a confessional statement.
Therefore, when a confessional statement is made by an accused person who is in police custody, that statement is inadmissible in evidence unless it is made in the immediate presence of a magistrate.
Article 40, however, apparently provides an exception to these two Articles but a careful reading shows that it is not really an exception to Article 38 at all but only an exception to Article 39, because Article 40 contains phrase "in the custody of a police officer". The confessional statement, therefore, which is being considered in Article 40, is a statement which is made by a person in police custody. It is also made by a person "accused of an offence". Now, if one considers these two phrases together, it follows inevitably that the person, when he made the statement, was an accused person and he was also in police custody. To place any other interpretation upon the wording of Article 40 would be to do violence not to its spirit but also its language, and, therefore it is quite clear that only those confessional statements are being considered under Article 40 which are made by accused person while they are in police custody. Such confessional statements are admissible in evidence provided they have led to the discovery of a fresh fact.
5. In the present case, we find that the appellant was not an accused person. When he finished making the statement, he had, no doubt, implicated himself, and the police may have begun to treat him as an accused person, but the police have not placed restrictions on his movements.
When he began making it and when he was in the course of making it, he could not be said to be an accused person nor could it be said to be that he was in police custody. That being so, Article 40 could not make that statement admissible in evidence.
This matter was considered by Abdul Qadir, J. In Jalla v. Emperor (AIR 1931 Lahore 278). In that case, the dead body of a person was discovered as a result of a statement made by a person who was not in police custody and who was not an accused person. The police subsequently decided to prosecute him and his confessional statement, which had led to the discovery of the dead body, was sought to be proved. Abdul Qadir, J. Took the view that the statement could not be proved, because it did not come within the purview of Section 27 of the Evidence Act (corresponds to Article 40 fo Qanun-e-Shahadat).
A similar question came up for consideration before the Lahore High Court in Client v. Emperor (AIR 1948 Lahore 69) in which Tek Chand, J. Took the same view. He held that a confessional statement made by a person at a stage when he is not an accused of any offence, and as a result of which certain articles are recovered, is not admissible in evidence against that person under Section 27 (Article 40) when he is subsequently sought to be prosecuted in respect of those articles.
6. A Division Bench of the Andhra Pradesh High Court took precisely the same view in the Malladi Ramaiah (AIR 1956 Andhra 56) and held that "before the provisions of Section 27, Evidence Act are attracted two essential requirements should be satisfied, namely, that the person making the statement is accused of any offence and is also in the custody of police officer. It is only then that the information leading to the discovery could be received in evidence. If either of the two conditions is not complied with, the statement would fall outside the purview of that Section.
With this observation we agree with great respect. In this view of the matter, the statement made by the appellant to the police must be left out of consideration. We, therefore, hold that the statement alleged to have been made by the appellant was wrongly admitted in evidence.
7. Adverting to the second contention Mr. Halepota that there was noncompliance of provisions of Section 103 Cr.P.C. SHO Abdul Khaliq and other police personnels were on patrol duty. They went to Moosa Khatan and then to Lateef Minor where one spy met them on whose spy information went to Bahadur Chandio at 7-00 a.m. They reached the house of the appellant. They tapped at his door and called. He came out.
This question was considered by a Division Bench of this Court comprising of Saleem Akhtar and Wajihuddin, JJ. In Yameen Kamber v. The State (PLD 1990 Karachi 275) After reviewing a number of decisions held as follows:- "The provisions of Chapter VII make it clear that they relate to the search of any place but it cannot be restricted only to house or a closed place, it can be an open place, open area, a playground, field or garden from where recovery can be made for which search is conducted. Although in strict sense the provisions of Section 103 are restricted to searches under Chapter VII of Cr.P.C, it has become a practice to apply it to all recoveries made by the Police Officers while investigating any crime. The rules of justice enunciated by section 103 are so embedded in our criminal jurisprudence and so universally accepted that in all criminal cases two mashirs are always cited for recovery and reliance is placed on these witnesses in the ordinary course provided they are independent, respectable and inhabitants of the locality. The residence of the mashirs becomes relevant depending on the facts of the case. The emphasis should be on respectability, independence and impartiality. If the recovery is to be made on public thoroughfare, a bus stand or similar public places the witnesses picked up by the public from the road can be proper witnesses of recovery depending upon the facts and circumstances of the case. However, in order to ensure proper investigation and clear proof preference should be given to the witnesses of the locality particularly witnesses who are respectable. Witnesses procured by the police though respectable lose credibility. Where witness are not of the locality the Court should cautiously examine their statements."
This decision was followed in a number of cases. Reference can also be made to Mst. Shabboo v.
The State (PLD 1990 S.C. 1083). The Hon'ble Supreme Court has approved the above decision in an unreported judgment dated 2.7.1991 in Criminal Appeal No. 9-K of 1989, Yar Mohammad and 3 others versus The State.
In the light of the above dictum, we will examine the statement of prosecution witnesses to see whether recovery has been proved beyond reasonable doubt. P.W. 1 Abdul Sattar was A.S.I. Tando Jam has stated that on 17.9.1990 at 4-15 SHO Abdul Khaliq took him, H.C. Abdul Qayoom, H.C. Allah Bakhsh, H.C. Ghulam Qadir Shah, P.C. Bashir Ahmad, Waqar Sadiq and other Constables in police van for patrolling. They went to Moosa Khalan and then to Latif Minor where one spy met them, on whose spy information they went to Bahadur Chandio at 7-00 a.m. The appellant was seen near his house. On interrogation the appellant brought out from his house one kalashnikov, two magazines loaded with 60 bullets and 17 more bullets in a cloth bag. He had no licence, the S.H.O, recovered these weapons and arrested the appellant and prepared mashirnama.
P.W. 2 Inspector Abdul Khaliq has stated that the got spy information that one Ashique Hussain Chandio was possessing a kalashnikov and live bullets. They went to house in village Bahadur Chandio. It was 7-00 a.m. In the morning when they reached his house. They tapped at his door and called. He came out, he told him that he would search his house to recover kalashnikov as he had such spy information. He admitted that he had one which was producing. He went inside his house and brought a kalashnikov, two magazines with 30, 30 bullets in each and 17 separte bullets in a brown coloured thella. A perusal of the statement P.W. 2 shows that he received spy information in Tando Jam town. He did not require any of the persons to act as mashirs. The village Bahadur Chandio is three miles from Tando Jam. He has admitted that there were houses of same castes of the accused in the village of Bahadur Chandio. He has admitted that father of appellant filed a report about transformer having been set on fire. He denied the suggestion that the father of the appellant threatened him that he would complain against him as he disposed of the case in 'B' class. The mashir was also a head constable. P.W. 1 is the witness for recovery and in view of the aforesaid reasons, his testimony is treated with incredibility and can not be believed. The recovery of kalashnikov and magazines is doubtful. In the absence of any independent and reliable evidence of recovery, the appellant can not be convicted.
8. The last contention of Mr. Halepota is that there were material contradictions between the P.W. 1 and P.W.
2. We have carefully considered this contention. We have perused the deposition of these two witnesses carefully. There are material contradictions in the statements of the complainant and the mashir which adversely reflects upon the authenticity of the case. According to P.W. 1 Police party got spy information at Lateef Minor whereas according to P.W. It was received at 6-30 a.m. At Tando Jam. According to P.W. 1 the appellant met them near his house whereas P.W. 2 has stated that they tapped at his door and called him. According to P.W. 1, vehicle was parked at the village of appellant whereas according to P.W. 2, the vehicle was parked a furlong away from the village as the road was bad. Therefore the entire version of the complainant that the vehicle was parked a furlong away from the village as the road was. Bad, they tapped the door and called the appellant and they enquired about the kalashnikov and the alleged statement of the accused/appellant is contradictory. Possibly the police arrested the appellant while he was proceeding to appear for the examination. There is not reliable evidence that the alleged statement was made by the appellant.
9. There is another aspect of the case. The defence is that he appellant is a student in Agricultural University. It is an admitted fact that on 17.9.1990 examination was going on. The appellant has stated in his statement under Section 342 Cr.P.C, that he was going to the University to appear in B.Sc Part-1 examination. He has produced the time table of the examinations as Ext.
11. He has also produced letter dated 21.1.1991 of the Assistant Controller of Examination as Ext. 12 and one certificate of Assistant Professor as Ext. 13.
In a criminal case, it is duty of the Court to review the entire evidence that has been produced by the prosecution and the defence, If after an examination of the whole evidence, the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true, it is clear that such view reacts on the whole prosecution case. In these circumstance, the accused is entitled to benefit of doubt, This view has been pronounced by the Federal Court of Pakistan in the case of Safdar Ali versus Crown (PLD 19S3 F.C.93) and we respectfully agree with this principle laid down there. Judging the instant case with the yard-stick of the above principle and considering the fact and circumstances of case, we think that the defence version put forward above has the reasonable possibility of being true and the accused in the circumstances, is entitled to benefit of the same.
For all the above reasons, we are unable to maintain the conviction and sentence is set aside and the appellant is acquitted of the charge levelled against him.
The above are the reasons for the short order dated 17.9.1991 passed on conclusion of the arguments and the appellant was directed to be set at liberty forthwith if not required in connection with any other matter.