As the facts of the present appeal as well as that of Criminal Appeal No. 7 of 1995 (Hazar Khan v.
The State) are similar in nature, I propose to dispose of both the appeals by this single judgment.
2. The facts of the prosecution case, in brief, as mentioned in F.I.R. No. 147, dated 23-3-1994, are that Inspector/S.H.O. Police Station Havelian, Mian Raza Hussain (P. W.3) was making investigation in case registered vide F.I.R. No. 145, dated 23-3-1994, under section 324/353/148/149, P.P.C. And, in this respect, he had arrested the appellant-accused Aksar Khan. In Murasila (Exh. P.A./1) it has been alleged that the said Inspector (P. W.3) had recovered a klashnikov, with folding butt, bearing No. 29606, a magazine containing a round, a bandolier containing 10 loaded chargers, each having 30 rounds of klashnikov, one handgrenade and a white torch from the possession of the appellant- accused and took the same into possession vide recovery memo. Exh. P. W.2/1, in the presence of A.S.I. Abdul Aziz of Police Post, P.O.F. Havelian (not produced as P. W.) and S.H.O. Police Station Rajoya, Abdul Saboor Khan.(P. W.2) on 23-3-1994.
3. Since the appellant-accused, on demand, could not produce any licence or permit in respect of the arms and ammunitions recovered from his possession, he was also arrested in the present case. Murasila (Exh. P.A./1) was drafted by Inspector S.H.O. Mian Raza Hussain (P. W.3) and was accordingly sent to Police Station Havelian where, on its basis, F.I.R. No. 147 (Exh. PA.) was duly registered on 23-3-1994 at 21-45 hours.
4. The case was investigated into and after the completion of investigation, complete challan was submitted in the Court of Special Judge Sessions Judge, Abbottabad, through EA.C.(I)/Magistrate 1st Class, Abbottabad, for trial.
5. In order to prove its case, the prosecution produced the following P. Ws.
Head Constable Haider Zaman (P. W.1).
S.H.O. Abdul Saboor Khan (P. W.2).
Inspector Mian Raza Hussain (P. W.3).
6. At the trial, the appellant-accused was examined under section 342, Cr.P.C. Who professed innocence and denied the recovery of the crime property (Exh. 1 to Exh. P.7), mentioned in the recovery memo. Exh. P. W.2/1, from his possession. The appellant-accused contended that the case in hand was a mere concoction and that he was falsely implicated in the present case at the instance of one Sher Afzal, a retired A.S.I., who was inimical towards-him on account of blood feud enmity, while, on the other hand, the service and assistance of Inspector Mian Raza Hussain (P.
W.3), his friend, was enlisted. The appellant-accused, however, did not produce any evidence in his defence and also declined to be examined, on oath, under section 340(2), Cr.P.C.
7. After hearing counsel for the rival parties the learned Special Judge---Sessions Judge, Abbottabad convicted the appellant-.Accused under section 13, Arms Ordinance as well as under section 5 of the Explosive Substances Act and sentenced him to undergo 3 years' R.I. And to pay a fine of Rs. 1,000 or in default thereof to further undergo 3 months' S.I., on both counts, directing at the same time, the sentences to run concurrently. He also extended benefit of section 382-B, Cr.P.C.
To the appellant-accused. In this context he framed judgment on 1-2-1995.
8. Not contented with the verdict of the Special Judge-Sessions Judge, Abbottabad, the appellant has challenged the legality and the vires of the same before this Court for the redress of his grievance.
9. Mr. Mazhar A.I Qureshi, Advocate, learned counsel for the appellant and Qazi Abdul Jalil, Advocate, learned counsel for the State present and heard. I have also gone through the record of the case carefully with the assistance of the learned counsel for both the parties.
10. The learned counsel for the appellant-accused, at the very outset submitted that the case in hand was concocted and the version as given in the F.I.R. No. 147 was absolutely false. He stated that the Inspector Mian Raza Hussain (P. W.3) has suppressed the facts because the occurrence did not take place in the manner in which it has been depicted by him. It was brought to my notice that the said Inspector is himself a complainant and also an investigator. Legally he could not assume this dual function and -he should have entrusted the investigation of the case to another reliable and disinterested Police Officer. This fact, by itself, renders the very trial of the case a sheer mockery. In this context, my attention was drawn to the photo copy of F.I.R. No. 145 registered in the same police station, by the same Inspector Mian Raza Hussain (P. W.3), on the same date (23-3- 1994) at 2-00 p.m. And it was stated that as a matter of the fact Inspector Mian Raza Hussain (P.
W.3) was present in the police station when he heard report of fire from the side of Petrol Pump situated near Ayub Bridge. The Inspector, alongwith other police officer/officials, rushed towards the scene of occurrence in his Government vehicle (registration No. ADB-3226), that, on reaching there, he was. Verbally informed by the people present there that some persons who were boarding Suzuki (registration No. MIA/5596) had resorted to indiscriminate firing, as a result of which three persons were injured and that the said persons had decamped from the scene of occurrence in the said Suzuki. The counsel further stated that in the very F.I.R. (No. 145) it has been also alleged that the Inspector, alongwith the police party, chased the said Suzuki and, in the process, cross-firing took place between the fleeing persons and the police party. At long last, the appellant and Hazar Khan accused, in the connected appeal, were arrested while their other confederates, by design, allowed to escape.
11. It is clear from the above narration that both the appellants-accused were apprehended in F.I.R.
No. 145 registered on 23-3-1994 and, therefore, there was no need to register other reports in the shape of F.I.R. No. 146 and F.I.R. No. 147. It is not understandable as to why the Inspector has undertaken extravagant proceedings, may be, that all this was accomplished at the instance of one Sher Afzal a retired A.S.I., a very close friend of Mian Raza Hussain (P. W.3) and an enemy of the appellants as has been admitted by the P. Ws. In their cross-examinations, to which reference would be made at a later stage.
12. In the above background, the veracity of the recovery memo was questioned vehemently. A perusal of recovery memo. (Exh. P. W.2/1) would show that it is absolutely silent as to when, where and at what time this recovery was effected.
13. On a perusal of Murasila, it transpires that the place of occurrence is situated some where about 25 kilometres from Police Station Havelian. It is inconsistent with the recitals of F.I.R. No. 145 of-even date. These cannot be reconciled. This recovery is rendered doubtful further by the fact that it is not backed by a site plan which was essential in the circumstances. This doubt is deepened by yet another circumstance that only police officials were chosen to witness the recovery. Curiously enough A.S.I. Abdul Aziz, who was allegedly connected with the recovery has not been produced, whereas an outsider (P. W.2), who could not give any plausible explanation for his presence, has been examined.
14. The Inspector (P. W.3) has deliberately violated the provisions of section 103, Cr.P.C. No reliance can be placed on alleged recovery, especially by a person whose conduct is not above board. In this connection, it is pertinent to refer to the admissions made by P. W.2, in cross-examination wherein he admitted as under:-- "It is correct and in my knowledge that Sher Afzal is resident of Langra and is a retired A.S.I. Police. It is in my knowledge that in the murder cases the aforesaid Sher Afzal is party from one side against the present accused and his brother Muhammad Ashraf. It is correct that in the absence of Aksar accused and his brother Ashraf the wife of Ashraf and their mother were killed and the charge was laid at the door of Sher Afzal and others. In the said case their bail petition was cancelled by the High Court. It is correct that they remained in jail in the said case:"
15. The counsel for the appellant-accused then took me through cross---examination of Inspector Mian Raza Hussain (P. W.3), complainant investigator at the same time, wherein he has admitted:-- "It is correct that criminal cases are on one side between retired A S I Sher Af; al and the accused. It is correct that said Sher Afzal served with me in the initial period of my service as A.S.I. Being my colleague. I have put in 19/20 years service in Police Department .... No site plan has been prepared by me regarding the place of recovery in the instant case which could show the manner of recovery. It is correct that I am Investigating Officer in the instant case as well as the complainant ...
I have not specified the place of recovery and the manner in recovery memo. Exh. P. W.2/1
16. On the other hand, the learned State Counsel when confronted with the above situation could not rebut the position emerging from the above line of reasoning. Resultantly, the recovery relied upon by the prosecution is hereby discarded. The appeal is, therefore, accepted.
17. The conviction and. Sentence, as recorded by the learned Special Judge-Sessions Judge, Abbottabad vide his judgment, dated 1-2-1995, is set aside. The appellant shall be released forthwith if not required in any other case.