' KHALIL-UR-REHMAN RAMDAY, J.--This is an appeal against the judgment dated 10-3-1994 passed by a learned Special Judge, presiding over Special Court No,3 constituted under the Special Courts (Suppression of Terrorist Activities) Act of 1975 whereby, Iftikhar Ahmad alias Dani appellant had been convicted under section 13 of the West Pakistan Arms Ordinance No, XX of 1965 and was punished with five years' R.I. And a fine of Rs,25,000 or sufferance of one year S.I. In default of payment of fine.
2. Through an F.I.R. No,343/93 dated 13-8-1993 of Police Station Bhikhi of District Sheikhupura, it had been reported by one Muneer Ahmad, A.S.I. Of C.IA. Staff that he accompanied by a head constable and ten F.Cs., Mushta Ahmad (P.W.1) and Muhammad Boota (given up), had gone to Mauza Taragewala on an official vehicle on 13-8-1993 in connection with the investigation of an F.I.R.
Bearing No,479/93 of P.S. Saddar of Sheikhupura which F.I.R. Had been recorded in connection with the theft of a water pump; that while he a as present in the said Mauza Taragewala, he received secret information that Iftikhar Ahmad appellant was present in his house and could be arrested if a raid was conducted upon him; that on receipt of this information, he raided the Haveli of the said appellant where he was present with a Klashnikov; that on seeing the police party, he threw down the said Klashnikov and ran away after scaling over the wall of his said Haveli and that the complainant A.S.I. Had picked up Klashnikov P-1 from the said spot and had seized the same. He had added that since the Klashnikov was of a prohibited bore, therefore, the appellant had committed an offence punishable under section 13 of Ordinance XX of 1965.
3. Having drafted this complaint on the said day i,e, on 13-8-1993 at 6-30 p.m. At the said Mauza Taragewala, Muneer Ahmad, A.S.I. Sent the same to the abovementioned Police Station, Bhikhi where the abovesaid F.I.R. Was recorded at 7-30 p.m.
4. As has been mentioned above, Iftikhar Ahmad appellant had allegedly run away from the place where he had been spotted and he was fmally arrested on 30-9-1993 by Wazir Ali, Si of C.I.A. Staff (P.W.4).
5. The prosecution produced two witnesses i,e, Mushtaq Ahmad (P.W.1) and Muneer Ahmad A.S.I.
(P.W.3) in support of the abovementioned charge.
6. Mushtaq Ahmad (P.W.1) claimed to be a cultivator of Mauza Dhamokey who further claimed to have gone to Adda Taragewala to collect some labourers where he was spotted by the police party who took him along to the alleged place of recovery. Muneer Ahmad, A.S.I. On the other hand had claimed through the abovementioned F.I.R. That this Mushtaq Ahmad P.W. Had accompanied him from the C.IA. Staff when he had left the said C.IA. Staff in connection with the investigation of F.I.R. No,479/93 of Police Station, Saddar of Sheikhupura. This Mushtaq P.W. Specifically admitted while under cross-examination that he was neither known to Muneer Ahmad, A.S.I. Nor to any other member of the police party abovementioned. This discrepancy in the statements of these two witnesses is not reconcilable and in fact lends support to the defence plea that Mushtaq P.W. Was an employee of one Tahir who was owner of a local petrol pump and with whose family, Iftikhar appellant had remained in some litigation on account of the death of a brother and a cousin of the said appellant who had been run over by a car belonging to the said Tahir his brother and that it was at the instance of the said Tahir who exercised influence with the local police, that the present case had been manufactured against the appellant.
7. As has been mentioned above, Muneer Ahmad, A.S.I. Was accompanied by at least one head constable and ten F.Cs. Besides Mushtaq Ahmad and one Boota at the time when they had allegedly spotted Iftikhar appellant while in possession of the Klashnikov in question. The prosecution claim is difficult to digest that despite the presence of such a large contingent of police officials and the two private persons, Iftikhar appellant could have managed to run away by scaling over the wall and none from amongst the members of this party, could have managed to apprehend this unarmed appellant. Needless to mention here that the Klashnikov in question had not been recovered from the possession of the appellant but had been recovered from the spot after the appellant had allegedly run away. It has come on record that Iftikhar appellant owns a .222 Rifle. And possesses a licence to keep the said Rifle. In the circumstances, it is not understood as to why the appellant should be in possession of an unlicensed Klashnikov when he could have validly and legally kept his licensed weapon with him.
8. The prosecution case is thus, open to serious exception and it,therefore, could not be said that the prosecution had successfully proved its case against the appellant beyond all reasonable doubts.
9. There is yet another aspect of this case. The Klashnikov in question (Exh.P-1) had not been sent for examination by any Fire Arms Expert and consequently no such Expert appeared at the trial to prove that whatever was being claimed to be a Klashnikov, was in fact a fire-arm. In the circumstances, the prosecution had failed to prove that whatever was in possession of Iftikhar appellant and whatever he had thrown away and which had been allegedly recovered, was in fact a Klashnikov or even a fire-arm weapon. On this score also, the prosecution case must fail, as had been earlier held in Nusrat alias Nusree v. The State PLD 1994 Lahore 93.
10. Consequently, Criminal Appeal No,135/94 is allowed. The impugned conviction and sentences recorded against Iftikhar Ahmad alias Dani appellant through the impugned judgment dated 10-3- 1994 of the learned Special Court constituted under the Special Courts (Suppression of Terrorist Activities) Act of 1975 are set aside and the said appellant is acquitted of the charge under section 13 of Ordinance XX of 1965. He shall be set at liberty forthwith, if not required to be detained in any other case.
11. Before we part with this judgment we feel compelled to take stock of another aspect of this case which has come to our notice.
12. As has been mentioned above, it was Muneer Ahmad A.S.I. Of C.IA. Staff who had allegedly witnessed Iftikhar appellant being in possession of a Klashnikov he had allegedly recovered the same; had then sent a complaint to P S Bhikhi for registration of a case under section 13 of Ordinance XX of 1965 and had thereafter, of his own, started investigation of this case. This investigation so conducted by this Muneer Ahmad, A.S.I. Of C.IA. Staff was illegal. According to the provisions of section 156 of the Cr.P.C., it is only an Officer in Charge of a Police Station who is authorised to investigate a cognizable case. The provisions of section 157 of the said Code, however, permit him to depute one of his subordinates to conduct an investigation which he is authorised to hold. It will, therefore, be noticed that the investigations of cognizable cases can be conducted, either by the S.H.Os. Themselves or by only those subordinate police officials who are so deputed for the purpose by the concerned S.H.Os. No other police officer or official, irrespective of his rank and capacity, has any power to investigate a cognizable case. Various CIA Staffs established in the Province do not stand notified as police stations and consequently, no incharge of the said Staff could come within the purview of an Officer in-Charge of a Police Station as envisaged by the provisions of the Code of Criminal Procedure. The members of the CIA Staff are subordinates of the Superintendents of Police of the District which S.P. Has the powers'of an Officer- in-Charge of a police station in view of the provisions of section 551 of the Cr.P.C. Therefore, the members of the CIA Staff, irrespective of their rank and status, can investigate cases only when they have been entrusted to them by an Officer-in-Charge of the Police Station to whom they are subordinate i,e, in case of CIA Staff, the S.P. Of the District. Therefore, no member of the CIA Staff has any authority or power to investigate a case of their own motion in the absence of such an investigation having been entrusted to him by the S.P. Of the District, as abovementioned. We have noticed a growing tendency in the members of the C.I.A. Staff and the Officers-in-Charge of the CIA. Staffs to commence investigation of cases of their own. This is illegal and this practice must be stopped.
13. Copies of this judgment shall be sent to the Provincial Home Secretary and the Inspector- General of Provincial Police for their information and with a direction to them to ensure compliance of the law declared.
14. As has been mentioned above, Criminal Appeal No,135/94 is disposed of as having been allowed.