QAISER AHMED HAMIDI, J.--- Appellant Maqbool Ahmad Shah was tried by Mr. Allah Bux Menton, Judge, Special Court, Suppression of Terrorist Activities, Hyderabad, for the offence under section 13-E of the Arms Ordinance, 1965, who found him guilty and vide judgment, dated 12th June, 1 1, sentenced him to suffer R.I. For seven years and to pay a fine of Rs.5, or in default to suffer R.I. For two years. By this appeal filed under section of the Suppression of Terrorist Activities (Special Courts) Act, 1975, the appellant has challenged his conviction and sentence.
2. On 6-2-1991, Muhammad Akbar S.I.P. Of Chamber Police Station received a wirelss message directing him to reach the headquarters of Qasim Rangers situated at Hyderabad. On the same day the police officer reported at the headquarter where Abdul Ghafoor, Sub-Inspector of Qasim Rangers handed over the custody of appellant alongwith 16 Kalashnikovs, ammunition and other articles alleged to have recovered by a raiding party of Qasim Rangers at the instance of appellant from a room situated near Dargah Baail Shareef, Taluka Tando Allah Yar on 13-1-1991. On return to Chamber Police Station, Muhammad Akbar S.I.P. Lodged F.I.R. Against the appellant on 7-2--1991 for the offence under section 13/14 of the Arms Ordinance, 1965. On 9-2--1991 the police officer inspected the pace from where the above arms and ammunition were recovered, which were found to be unlicensed. After usual investigation the appellant was sent up to stand trial for the said offence.
3. Charge under section 13-E of the Arms Ordinance, 1965, was framed against the appellant and he was asked whether he pleads guilty or has any defence to make, to which he pleaded not guilty and claimed a trial. At the trial the prosecution examined Muhammad Akbar S.I.P. (P.W.1), Abdul Ghafoor P.C. (P.W.2), Muhammad Iqbal Sub-Inspector (P.W.3), and Major Amjad Kamal (P.W.4).
4. In his examination in the Court below recorded under section 342, Cr.P.C. The appellant denied each and every allegation put to him. His defence in his own words is as follows:-- "On 12-1-1991, I had gone to Jarki village. On 13-1-1991 1 was coming back. It was 11 or 11-30 a.m. When I was standing at the bus stand. There came two vans of Qasim Rangers. The Rangers stopped.
They at one put me in the vans at the pointation of Dr. Saleem Thebo. They brought me to Faran Sugar Mills where Dr. Saleem was working and then to Math. I was maltreated. Muhammad Moosa Solangi who was sitting with me at bus stand knew all these facts. After 25 days I was put in police lock-up Chamber. My father came to meet me. He told me that Rangers had raided the whole village but nothing was recovered from there, and that Dr. Saleem was with the Rangers. I have enmity with Dr. Saleem. Nothing was recovered from me. Vikio Thaheem was present at Sarzamin."
5. The appellant did not examine himself on oath. He has, however, examined Muhammad Moosa (D.W.1), and Vikio (D.W.2) in his defence.
6. On the assessm ent of evidence available on record the learned Judge found the appellant guilty and convicted him accordingly, giving rise to this appeal.
7. We have the benefit of a full and able arguments from Mr. Azizullah K. Shaikh, learned counsel for the appellant, who has given a commendable labour and time to the study of the brief. We are also indebted to Mr. S. Sarfraz Ahmad, Additional Advocate,-General, who leas referred to a wealth of case-law commencing from the year 1944 down to the present day in support of his contention that any defect in investigation does not render the trial of accused in Court illegal.
8. Admittedly the appellant was arrested by Major Amjad Kamal of Qasim Rangers on 13-1-1991. It is also the case of the prosecution that 16 Kalashnikovs and other ammunition were recovered from an almirah which was Lying in a room situated near the Otak of the appellant after breaking open the lock. The argument which has been addressed to us on behalf of appellant is that the entire investigation carried out by Major Amjad Kamal of Qasim Rangers was illegal and the detention of appellant without registration of any case against him for 23 days was wrongful. As to first of the above contentions, the answer is provided by the Notification published in Gazette of Pakistan, Extraordinary dated 24-12-1989, entrusting the members of Pakistan Rangers the powers and duties of Police Officers with regard to arrest and search of persons in the following terms:-- "MINISTRY OF INTERIOR AND NARCOTICS CONTROL (Interior Division)
Islamabad the 23rd December, 1989 S.R.O.122,8(I)/89: --- In exercise of the powers conferred by section 10 of the Pakistan Rangers Ordinance, 1959 (West Pakistan Ordinance; No. XIV of 1959), the Federal Government is pleased to confer and impose the: powers and duties of Police Officers with regard to arrest and search of any person provided for in Chapter V of the Code of Criminal Procedure, 1898 (Act V of 1898), or any other law for the time being in force on every member of the Pakistan Rangers whenever called for duty to reinforce the police for the maintenance of law and order in the following areas of the Province of Sindh, namely:-
(i) Karachi Division.
(ii) Hyderabad District.
(iii) Nawab Shah District.
(iv) Dadu District.
(v) Naushero Feroz District (Sd.)
MEHR SHER MUHAMMAD Section Officer."
9. The second contention about the illegal and wrongful detention of the appellant' seems to be well-founded. Admittedly the appellant was not produced before any Magistrate during all this period. The concerned police was also not informed about the arrest of appellant and alleged recoveries of a huge quantity of arms and ammunition from his possession and although Major Amjad Kamal (P.W.4) claims to have informed Chamber Police about the said recoveries, Muhammad Akbar S.I.P. (P.W.1) has contradicted him in this behalf. Besides violating the provisions of sections 60 and 61, Cr.P.C. Major Amjad Kamal (P.W.4) has disregarded the provisions of Article 10 of the Constitution of Islamic Republic of Pakistan 1973, by not producing the appellant before the nearest Magistrate within a period of 24 hours of his arrest. Mr. S. Sarfraz Ahmad, learned Additional Advocate-General has, therefore, very little to say in this regard. This case is a good illustration of the way in which a citizen of this country is treated by the members of law enforcing agency. It may be noted that the law does not tolerate the achievement of a lawful purpose by unlawful means.
10. The illegality of arrest and the wrongful detention of the appellant, however, could not affect his subsequent trial before a Court of law. This proposition is too well-established to require any elaborate discussion. The cases reported as Parbhu v. Emperor AIR 1944 PC 73, The Crown v. Mehar Ali PLD 1956 PC 106, Mst. Sadan v. The State PLD 1965 BJ 12 and The State v. Zulfiqar Ali Bhutto and others PLD 1978 Lah. 523, serve as guidelines.
11. We now proceed to examine the case of the prosecution on merits. Admittedly the alleged recoveries were made from an almirah lying in a room situated in village near Dargah Baail Shareef, Taluka Tando Allahyar. There is also no dispute that respectable persons of the locality were not tak .n to act as Mashirs and Muhammad Iqbal Sub-Inspector and Muhammad kJ Sub--- Inspector of Qasim Rangers had acted as Mashirs of search complete violation of the provisions of section 103, Cr.P.C. The witnesses of search should be ---respectable--- and ---of the locality--- and the occupant of the house should also be there at the time of search, are very valuable safe guards. The police have always their pet witnesses or some one can be easy hired or influenced and, therefore, it is that ---respectable--- and of the locality have been considered as necessary qualifications of the search witnesses. The Courts should always be vigilant to know as to why the witness has trudged all the way from his place to the place of search and why the police could not have a search witness from the locality. The perusal of record shows that many persons from the locality had collected at the time of search leading to the recoveries of huge quantity of arms and ammunition, but none out of them was picked up to act as Mashir. The learned trial Judge who was conscious of this legal infirmity has tried to dispose of the same in the following words:-- "Learned defence counsel has argued that no person of locality was called to act as Mashir, but the A.P.P. Has submitted that the accused is Sajjada Nashin of Dargah Baail Sharif and from that village nobody could come forward to act as Mashir against their own Murshid and Sajjada Nashin of Dargah ."
12. This could hardly be a ground to ignore this mandatory requirement of law. Major Amjad Kama] (P.W.4) has admitted in clear terms that the secret information against the appellant was received by him one day earlier. It was, therefore, not difficult for him to have taken respectable witnesses with him. Even the services of a Magistrate could have been procured for supervising the raid to eliminate the possibility of any underhand tactics, which are too common in cases of this nature.
The question was also considered by a learned Single Judge of this Court in the case of Muhammad Ismail v. The State reported in PLD 1979 Kar. 31, who was pleased to observe as follows:-- "When the law makes a provision the Courts cannot relieve public functionaries of the obligations on ad hoc and sweeping considerations that no one in the locality would be prepared to serve as a Mashir or that if he would be so prepared he would be branded as a witness under influence of police. Each case depends on its own merits. Section 103, Cr.P.C. Itself insists on respectable persons being called and there can be no doubt that respectable persons are available in every locality and they can easily be chosen by the police. Provisions of this nature are desgined to create a safeguard against possible chicanery and concoction on the part of Investigation Officer and by allowing such provisions to be violated one is likely only to put a premium on possible false implication. Such a position cannot be lightly countenanced."
13. The provisions of section 103, Cr.P.C. Were also examined exhaustively by a Division Bench of this Court in the case of Yameen Kumhar v. The State reported in PLD 1990 Kar. 275, wherein it was observed:-- '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 close 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 Officer 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 ail 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 police 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 witnesses are not of the locality the Court should cautiously examine their statements."
14. This case was approved by the Supreme Court in its recent judgment dated 2-7-1991 passed in Criminal Appeal No.9-K of 1989.
15. From all the very numerous cases to which we have referred, and many others, we deduce the principle that a search under section 103, Cr.P.C. Is to be made in presence of respectable persons of locality, which should be insisted upon except where departure from this provision of law is justified in the circumstances of a particular case.
16. The evidence on the point of alleged recoveries is also not consistent. Major Amjad Kamal (P.W.4) has testified in clear terms that the spy who had informed them about the presence of huge quantity of unlicensed arms and ammunition was not with them at the time of raid.
Muhammad IqbaI Sub---Inspector, Qasim Rangers (P.W.3) who has acted as Mashir of recoveries has, however, contradicted his officer by stating that the spy had gone to the village of appellant with the raiding party. Major Amjad Kamal (P.W.4) has again stated that the lock of the dispensary from where these recoveries were made was broken by the raiding party. Muhammad Iqbal Sub- Inspector (P.W.2), however, does not agree with him and he has stated as follows:-- "He disclosed his name as Maqbool Shah son of Khan Muhammad Shah. He, however, confessed that there were unlicensed kalashnikovs and ammunition in his Katcha Makan which was near there. He took us inside that Katcha Makan and he produced from an Almirah 16 kalashnikovs, 10 pouches which were empty 10 slings------..---
17. On close examination of the evidence, we have noticed that both these witnesses have not only exaggerated their story, but they have freely mixed lies with truth. The learned trial Judge has given no weight whatsoever to these glaring inconsistencies in the statement of both these witnesses, which keeping in view the conduct of Major Amjad Kamal (P.W.4) who had kept the appellant in wrongful confinement for 23 days, cannot be brushed aside lightly. No reliance can, therefore, be placed upon such recoveries which is shrouded, with doubt.
18. The learned trial Judge has also erred in holding that the defence of the appellant was set up.
He has completely lost sight of the fact that the' prosecution has to stand on its own legs and a conviction is certainly not to b 'e based on the weakness of defence.
19. For the aforesaid reasons, we allow the appeal and set aside the conviction and sentence awarded to appellant, who shall be released forthwith, if not required in any other case.
20. By a short or, dcr, ~Iaaed ----'-1991 we had allowed the appeal and these are reasons for the said order.