1. ' ABDUL RAHIM KAZI, J.--- The present appeal has been filed against the judgment passed by Special Court No,1, Suppression of Terrorist Activities Act whereby the present appellant has been convicted under section 13-E of the Arms Ordinance and sentenced to undergo R.I. For five years only.
2. ' Briefly the facts are that on 10-10-1992 an F.I.R. Was registered by A.S.I. Ghulam Nabi Shar of Tando Jam Police Station under section 13-D, Arms Ordinance read with section 5, Explosive Act.
3. According to F.I.R. The case of the prosecution is that on the said date at 7-30 hours one Major Intisar of Intelligence, Hyderabad alongwith his staff had come to police station and asked for the present applicant for the reasons that he was required for interrogation as he had connections with Al-Zulfiqar Organization. The appellant who was present at the police station being a constable was arrested under section 54, Cr.P.C., subjected to joint interrogation in the office of S.H.O. Where he disclosed that five/six months earlier he had received from one Hameed Sheikh, a member of the A.Z.O. One G-3 Rifle and 94 bullets. He also admitted having received one handgranade, Rocket Launcher and two Goias from Muneer Abbasi another member of A.Z.O. The present appellant is then said to have buried the said arms and ammunitions in the uncultivated land at Usman Shah Jam Matiyoon with the help of one Dur Muhammad Khoso. He said to have led the police and army party to the said place where he dug the land for about 4 feet and produced one gunny bag and plastic bag containing the abovesaid arms and ammunitions which was recovered through a Mashirnama prepared in presence of Ghulam Nabi and Muhammad Usman.
4. The said Major Intisar is said to have taken the arms and ammunitions in his custody and gone away and directing the complainant to take legal action against the appellant. The appellant was taken into custody by the complainant and was brought to the police station where the said F.I.R.
5. Was registered. After usual investigation the case was sent up for trial to the Special Court.
6. ' The charge was framed against the accused under section 13-E of the Arms Ordinance to which he pleaded not guilty and claimed trial. Prosecution examined complainant and the two Mashirs.
7. The prosecution also examined Ata Muhammad Abbasi, Mobile Magistrate, Hyderabad who had recorded the confession of the appellant. The prosecution then closed their side. Statement of accused was recorded under section 342, Cr.P.C. Wherein he denied the allegations made by the prosecution. He has however submitted that initially he was arrested and detained on account of political reasons much before the lodging of the above said F.I.R. And was also shifted to torture cell and that during his unlawful detention his wife Mst. Roshan Ara had filed a Constitution petition at High Court, Hyderabad and also sent a number of telegrams to higher authorities and that under such pressure he was shown to have been released on 7-10-1992 but was again shown arrested in the present case. He denied if anything was recovered from him.
8. ' The appellant examined himself on oath and also examined two defence witnesses Khan Muhammad and Muhammad Ashraf who are the Hotelwala of the place of recovery. The learned trial Court after hearing the arguments was pleased to pass the abovesaid judgment and convicted and sentenced the appellant as above. Being aggrieved the appellant has preferred this appeal.
9. ' Following are the points for determination as settled by the trial Court:
(1) Whether on 10-10-1992 at about 12-30 a.m. a G-3 Rifle and its 94 bullets alongwith explosive substance wrapped in a plastic and gunny bag were produced by the accused voluntarily after digging the land of Usman Shah situated near Rahuki Shakh (minor) for which the accused had no licence, and had contravened section 9 of the Arms Ordinance?
(2) What offence, if any, has been committed by the accused?
10. ' We have heard Mr. Allah Bachayo Soomro, Advocate for the appellant and Mr. Shafi Muhammad Memon, the learned AA.-G., Sindh. The learned counsel for the appellant has assailed judgment of the trial Court on three grounds. Firstly he has contended that the very recovery has not been proved as required in law. Secondly, he has submitted that even the case property alleged to have been recovered from the appellant does not stand proved and the factum of the property itself is doubtful. Third ground urged by the learned counsel is that the confession is not recorded in accordance with the mandatory provision and the same having retracted cannot form the basis for conviction.
11. ' In respect of the first ground the learned counsel for the appellant has referred to the deposition of complainant A.S.I. Ghulam Nabi Shar. In his deposition as well as in F.I.R. He states that the present appellants when interrogated after his arrest on 10-10-1992 himself offered to produce the alleged arms and ammunitions and then he took the police party alongwith army personnel to the place known as Usman Shah Joon Matiyoon wherefrom he produced the same after digging the earth. It may be observed that on this point the prosecution has examined only two Mashirs and the complainant. Nune from the law enforcement agency was examined although they were present there. The learned counsel for the appellant has referred to the provision of section 103, Cr.P.C.
12. Which provides that at the time of search or recovery the prosecution shall associate independent respectable witnesses from the locality. In the case of Muhammad Achar v. The State reported in PLD 1990 Kar. 314 a Division Bench of this Court was pleased to hold as under:-- "Section 103, Cr.P.C. Provides that search should be carried in the presence of respectable persons of the locality. Therefore, the witnesses for recovery should not only be respectable but should be from the locality. Every citizen is respectable unless otherwise proved PLD 1979 Azad J&K 28.
13. Respectability cannot be attributed only to wealth, social or economic status. Even most of the poorest and humble person can be more respectable than any wealthy person. It is the reputation and respectability of a person hecom mands which should be the touchstone. In cases where witness of recovery is called from a place other than the locality where search or recovery is made which is a populated area serious doubts will be cast on such recovery. Evidence of recovery has been not relied upon where witnesses from other locality have been made Mashir. Reference can be made to PLD 1981 Kar. 195 and PLD 1982 Lah.
344. The prosecution did not examine the other Mashir and examined P.W.7. In such situation the recoveries have not been proved and are highly doubtful."
14. ' Learned counsel has argued that in the present case the witnesses of the recovery are two police constables and complainant himself. No reason has been assigned by the prosecution as to why no private person was associated as a witness. The Mashir Ghulam Nabi when asked questions about this fact stated in his cross-examination that the populated area was situated at a distance of one kilometre from the place from where the said articles were recovered while the police station is at a distance of 7/8 kilometre. The other Mashir namely Muhammad Usman also states that the police party had not taken any private persons from Tando Jam or even from the Dargah of Usman Shah Joon Matiyaroon when they approached the place of Wardat. The reference to the deposition of defence witness Khan Muhammad would show that he is the person who has a hotel at a distance only of 8 hundred feet from the place of recovery of the articles and that he is also an ex-councilor of the area. These facts show that this man is a respectable person of the locality and he states that on the said date the present appellant was never brought to the place of recovery nor any article was recovered. Now as the case of prosecution goes, the recovery was made at noon time when obviously the said hotel would be open and being at a distance of only 1 hundred feet and visible from the alleged place of recovery, the police could have conveniently asked for any person from the hotel to associate as a Mashir, of recovery but no such effort was made by the police. This itself shows that such recovery cannot be relied upon as has been observed in the abovesaid case of Muhammad Achar v. The State the same has been followed in the Single Bench judgment of this Court of which one of us (Abdul Rahim Kazi, J.), is the author being the case of Muhammad Amin v. The State reported in 1995 PCr.LJ page 1012. In such A circumstances, this recovery itself cannot be said to have been proved by the prosecution beyond any reasonable doubt.
15. ' The other point urged by the learned counsel for the appellant is that the very case property which is allegedly produced in Court could not be proved to be the same. It is allegedly recovered by the police as per the Mashirnama. According to Mashirnama the property that was recovered is as mentioned above but this Mashirnama is also defective inasmuch as it only shows that the present appellant produced the said articles but it does not say that the said articles were taken in the custody by the police personnel or the members of the army who were under the command of Major Intisar. A reference to the deposition of complainant will show that the said arms and ammunitions were taken away by Major Intisar after their production on 10-10-1992 for his custody to his own Headquarter. However, there is no such mention in the Mashirnama itself. The two Mashirs also corroborated the above contention of the complainant. It may further be observed that in the present case the challan was submitted in Court on 24-10-1992 and the original record of the case shows that alongwith the challan the property form was also filed which mentions the five items allegedly recovered from the accused. This shows that the said property was produced in Court alongwith the challan but the complainant in his cross-examination states "Major Intisar had taken away the fire-arms including Rocket Launcher and Golas after its recovery with himself and had not given any receipt to me. After the case was challaned after about two or three months I received the case property from the army". This fact alone shows that the case property was not available at the time when the challan was produced in Court. In these circumstances, the learned counsel has argued that the case property not having been in proper custody, the property subsequently produced in Court cannot be relied upon and certainly the same would become doubtful especially when the Mashir Ghulam Nabi Soomro does not mention the two Golas of Rocket Launcher in his deposition. According to this Mashir the police had recovered only one G-3 Rifle, one Launcher, one Handgrande and some bullets of G-3 Rifle and nothing else. He does not state even if 94 bullets were recovered. Similarly, other Mashir Muhammad Usman states that the fire-arms at the time of recovery were wrapped in plastic bag but the said bag is not available in Court although other witnesses deposed otherwise. Mashir Muhammad Usman also states that the fire-arms recovered by the police were not covered and sealed by them. He further states that the bullets as well as bombs were not wrapped in cloth bag but in the Court he found the 94 bullets in cloth bag. He also states that in the Mashirnama it is mentioned that the fire-arms were wrapped in red colour cloth whereas the Mashirnama (Exh.6) does not contain any such fact. The result of the above discussion would be that the very property allegedly recovered and produced in Court cannot be said to be the same.
16. ' Now if the evidence of recovery, being doubtful, is excluded then the only evidence available against the present appellant is that of confession. According to prosecution the appellant was produced before the Magistrate for recording of his confession and the Magistrate after giving him all the warnings as required in law recorded his confession and also endorsed such certificate as required under section 164(3), Cr.P.C. The learned counsel has argued that as shown by the prosecution, the appellant was put under arrest at Tando Jam Police Station at 8-00 a.m. And he was being guilty by the members of the law enforcing agency and the S.H.O. Till 12-30 noon when he allegedly agreed to lead them to the recovery of the arms and ammunitions. From that place, the appellant was brought to the police station and ultimately F.I.R. Was registered at 1-30 p.m. And within half an hour he was brought before the Magistrate for recording of confession and admittedly the Magistrate allowed him only two hours' time for reflection before the confession was to be recorded. The counsel for the appellant has submitted that in such circumstances the alleged confession can hardly be said to be a voluntary confession and such confession cannot be made the basis of the confession. He has further pointed out that the confession shows that on the questions asked by the Magistrate it was made clear to him that the present appellant had been with the police since 8 o'clock in the morning till the time he was produced before him and all this time he was being gilled by the members of law enforcing agency and the police. The learned counsel has referred to the case of Abdul Halim v. The State 1984 PCr.LJ 611 wherein a Division Bench of this Court has held that where in a case the accused was arrested at 6-00 a.m. And produced before the Magistrate within four hours on the same day for recording of his statement and there being nothing on the record to show if the Advocate of the accused or his relatives had any access to accused during period of his detention in police custody and where the accused was given only 1-45 hours time for reflections then in such case the said confession cannot be relied upon, especially when there be no other evidence available against the accused. Similarly, in the present case the accused had been all along in the police custody and had no opportunity to have any access to his lawyer or relatives and no sufficient time C for reflection was given to him. As regards the other piece of evidence available against him being that of recovery, it may be observed that one tainted piece of evidence cannot corroborate another tainted piece of evidence. Accordingly, we are of the view that it will not be safe to rely on such confession and make it the basis of conviction.
17. ' Lastly the learned counsel for the appellant has argued that the present appellant has been made a victim of prejudices and the entire proceedings against him are mala fide. It has been pointed out that before registration of the present case the present appellant was taken away by the law enforcing agency on 27-9-1992 which fact is recorded in Entry No,29 made at 17-05 hours in the daily diary of 10-10-1992 maintained at Tando Jam Police Station which has been produced in evidence as Exh.29 the learned counsel for the appellant has also referred to the fact that Mst.
18. Roshan Ara wife of the present appellant had instituted Constitutional Petition No,D-190 of 1992 before this Court on 29-9-1992 against such unlawful detention of the appellant by the law enforcing agency wherein Captain Tariq Ameen of Brigade 52 Arms Headquarter is also respondent. Feeling the pressure of the said Constitution petition the present appellant was released on 7-10-1992 as is disclosed from the copies of the Constitution petitions and the orders produced in evidence by the appellant as Exhs.17, 18 and 19. According to learned counsel for the appellant this release was only with the intention to get abovesaid Constitution petition disposed of but subsequently again the present appellant was hauled in. #TBS -4* #TBE ' From the above discussion we are of the view that neither the evidence of recovery brought before this Court nor the confession can be the basis of conviction. Accordingly, we have no hesitation in arriving at the conclusion that the prosecution has not been able to prove the case against the appellant beyond any reasonable doubt. In these circumstances, we allow this appeal and set aside judgment, conviction and sentence awarded by the Trial Court. The appellant shall be set at liberty forthwith if not required in any case.