' MIAN GHULAM AHMAD, J.--- By his judgment dated 3-6-1992, Ch. Ghulam Sarwar, Judge, Special Court No,IV, Suppression of Terrorist Activities, Lahore, convicted Umar Farooq under section 13 of Arms Ordinance XX of 1965 and awarded him sentence of three years' R.I. And a fine of Rs,20,000, in default of payment of which he was ordered to undergo R.I. For a further period of one year. The convict has come up in appeal to this Court. Mr. Masud Mirza, Advocate has appeared as counsel for the convict and Sardar Khurshid Ahmad, Advocate, as counsel for the State. They have been heard and record of the case has also carefully been gone through.
2. Allegedly, on 28-1-1992, the accused, in police custody, led to recovery of an unlicensed sten gun Exh.P.1. And two magazines Exh.P.2/1-2, taken into possession by the police through memo. Exh.P./I.
This was pursuant upon registration of a case under section 7 of Surrender of Arms Ordinance XX of 1991, at Police Station Gowalmandi, Lahore, on 16-1-1992, by Allah Ditta, S.I., on the basis of a complaint Exh.PA., drafted by Khalid Masud, Inspector, C.IA., Lahore Cantt. Inspector claimed having been in receipt of a spy information about Umar Farooq being a bad character, having association with lawless elements, and to have kept in his house unlicensed arms and ammunition.
Subsequently, on 28-1-1992, raid was conducted by Khalid Masud in company of S.Is. Muhammad Anwar and Muhammad Rafiq, P.Ws. 2 and 3. They had attested the recovery memo. Exh.P.B.
3. Learned Judge of the lower Court believed the P.Ws. And came to the conclusion that it was a genuine recovery, and the prosecution had succeeded in fastening the guilt on the accused, to a degree of satisfaction. In so far as credibility of the P.Ws. All being police officers, is concerned, the learned Judge was of the view that they could well be relied upon, especially as there was no animus on their part, prompting them to plant a fake recovery upon the accused, particularly when it was a costly fire-arm. Compliance with the provisions of section 103, Cr.P.C. In the opinion of the learned lower Court, was not a must, in the circumstances of the case. It has also been observed in the course of judgment under appeal, that if the accused, as has been alleged by him, had been detained illegally at the police station on 16-1-1992, he was supposed to have filed a habeas corpus petition in the High Court or complained against the conduct of the Inspector to the higher authorities of the police.
4. It is to be noted in this regard that filing of a petition in the High Court is not an easy exercise, but is a very costly affair, and even an aggrieved person would think twice before resorting to this remedy. Officers at higher level in the police hierachy are also expected to side with their subordinates. D.S.P. Crimes Branch has reinvestigated the case, under direction of this Court, and had appeared before the learned Judge, Special Court, on 3-6-1992, when the judgment was going to be announced, and had concurred with the finding arrived at by the Investigating Officer, Khalid Masud, Inspector, in the light of the evidence produced before him (D.S.P.) by the mother of the accused. We do not think, however, that the Court is bound by the finding of the investigating agency, even if different officers have given a consistent opinion.
5. We would not entirely agree with the learned lower Court that the evidence of the P.Ws.2, 3 and 4, recovery witnesses, inspires confidence and is worth credence. That may be consistent and cogent, in a large measure, but we would not approve of the opinion of the learned lower Court that their testimony is natural and dependable. Muhammad Anwar S.I., P.W.2 admits having come across certain sign boards or posters displayed to condemn corruption rampant amongst officers.
The assertion of the accused is that he had been held responsible for that and the police was annoyed. Further, on 16-1-1992, he gave company to two labourers, who had earlier been rounded up by Gowalmandi police, and then let off, on acceptance of illegal gratification, and he protested against the attitude of the police, with the demand to return the amount passed as bribery. The S.H.O. Got offended and he was made to sit there and then was falsely involved in this case. To say that it would be a difficult task for the police to plant a weapon like sten gun on any person is an observation, which we would not endorse, the reason being that the police has always plenty of illicit and unlicensed arms lying in the "Malkhanas" and could pick up any fire-arm from there, to show the same to have been recovered from possession of a person proposed to be proceeded against. Similarly, it would not be correct to say that there was no ill-will on the part of the police and no background of false implication of the accused in this case. Background that could lead to a motivated or malicious action on the part of the police against the accused has already been stated above.
6. If there is a mandatory provision in the Cr.P.C. Its violation would vitiate or detract from the sanctity of the criminal proceedings. The learned lower Court has itself remarked that the provisions of section 103, Cr.P.C. Are of imperative character and yet has opined that non- compliance thereof would not render the recovery doubtful or illegal, especially when the prosecution has explained that at the time of recovery, nobody from the public was prepared to join the process. It is in evidence that there was hustle and bustle, people in large number were passing through the street, and several shops were open. It was then unbelievable that none out of them was coming forth to assist the police. The police has painted the accused in very dirty colours, stating that he had involvement in a number of criminal cases, including several dacoity incidents. A man with such antecedents and activities becomes persona non grata and members of the publice develop disliking; and they were expected to have volunteered themselves, when the police was making a crack-down to catch hold of the culprit. In the light of what has been pronounced in the cases, Muhammad Shall v. The State PLD 1987 FSC 16 and Syed Shah Muhammad v. The State PLD 1986 SC 32, it would be a highly dangerous practice to convict the people on the basis of testimony of police officers alone, as anybody who has somehow incurred displeasure of a police officer would then be absolutely unsafe. Generally, the police makes no effort to get hold of independent and respectable persons from the locality, although they are available and opts to act in gross violation of requirements of section 103, Cr.P.C. In very rare cases, police may be relieved of its obligation to comply with the provisions of section 103, Cr.P.C. In letter and spirit, but it would be incumbent on the police to bring on record such special circumstances, and then it will be for the Court to judge if departure from the essential requirement in question is justified. In the circumstances of this case, we do not think, there was any justification for the police to have not cared to comply with the provisions of mandatory nature. Purpose of section 103, Cr.P.C.
Is to ensure that result of certain search undertaken by the police does not rest on its will, but emanates from truly untainted testimony of respectable and unconcerned persons. Abuse of an exercise like this has to be minimised by insisting upon availability of independent evidence.
Section 103, Cr.P.C. Is designed to have a safeguard against possibility of ulterior manoeuvring and mala fide action on the part of the investigating agency. The police officer, who supervised the raid, in this case, had an advance information about involvement of the accused, and the raid was made on 28-1-1992, in pursuance of the case registered on 16-1-1992, and yet no steps were taken by the police officer to abide by his statutory obligations and usual practice of associating members of the police force alone was adopted, which course could not be approved of, in the least.
7. It is also to be pointed out that the room from which the recovery is claimed to have been made had been in the use of Muslim League, as its office, and it was not in exclusive occupation of the accused. When the police party raided the premises, room of "Baithak" was open. People must have been coming to the place and leaving it, throughout the day. It has also been stated by P.Ws.2 and 4 that 2/3 boys were inside the room, at the time of raid. Any body could place any illicit article over there, in absence of the accused. In a similar case, Riasat All v. The State 1992 P Cr. L J 1745, recovery made from the premises not in exclusive possession of the accused was accorded no sanctity.
8. Learned counsel for the appellant has also hinted at improbability of the alleged incident, and he is not incorrect there. It has been deposed by Khalid Masud, Inspector, P.W.4 that he had visited the house of the accused, following registration of the case against him, on 16th, 17th, 18th and 20th of January, 1992. The accused was expected to have been alerted by the police movement, and as a person of ordinary prudence, he was not supposed to have still kept the illicit articles in his, house or office. Even if he possessed any unlicensed arm or ammunition, he would have taken care to remove it from his house or Baithak and deposited it elsewhere. The Inspector has contradicted himself, in a very pronounced and noticeable way, while deposing, that the informant had been supplying to him information about the criminals very frequently, and then withdrawing those words and saying in the next breath that the informant had furnished information to him respecting this case alone, and he was not known to him prior to the incident in question. Conduct of the Inspector smacked of mala fides on his part and was vindictive in nature. He assumed the role of complainant in the case and then took upon himself the responsibility to investigate it. He concedes that he belongs to C.IA., and the case had been registered at Police Station Gowalmandi.
With that police station he had no connection. No competent authority had appointed him as Investigating Officer, and yet he had undertaken the investigation and made search of the house of the accused in a self-styled manner, by associating with him a Sub-Inspector (Muhammad Rafiq), who had earlier on 16-1-1992 accompanied him, when a secret information about the illegal activities of the accused had been communicated to him. Although he has made mention of so many cases, in which the accused had involvement, he has not furnished any worthwhile evidence in that behalf. On the contrary, the accused has tendered copies of several F.I.Rs, Exhs.D.B./1-4, pertaining to different police stations, not carrying the name of Umer Farooq as an accused. In defence the accused has examined a next-door neighbour, Salah-ud-Din Dar, and another person, Ghulam Muhammad, who has a show room of motor-cycles, close to the house of the accused, at Nisbat Road, Lahore. They have vouchsafed for his good conduct and testified about mala fides on the part of the police. It has rightly been urged by the learned defence counsel that near neighbours only could furnish evidence of this kind, and those living far away, not knowing the accused, could not say anything in that regard, and the testimony of the D.Ws. Thus is not to be brushed aside, as forthcoming from interested quarters. It was observed in Safdar Munir v. The State 1992 Cr. L J Lahore 1757 that a police officer would normally be interested in conviction of the accused, against whom he has actively procedded.
In the light of what has been stated above, we come to the conclusion that the police case against the accused was not free from doubt, the incident reported was improbable one, and the evidence led to establish the guilt of the accused, with police origin in entirety, did not at all inspire confidence and justify conviction of the accused. We, therefore, proceed to set aside the conviction and sentence, accept the appeal and acquit the appellant. He shall be released forthwith, if not required to be detained in any other case.