1. [Lahore]Present' Ch. Mushtaq Ahmad Khan and Arif Iqbal H. Bhatti, JJJAMEES IQBAL alias BEECHAVersusTHE STATECriminal Appeal No. 577 of 1993, decided on 7th December, 1994.(a) West Pakistan Arms Ordinance, 1965--S. 13-Suppression of Terrorists Activities (Special Courts) Act (1975)
2. S. 7 thereof-Conviction and sentence thereunder-Appeal thereagainst-There was sufficient evidence to establish that the appellant was in the custody of the police much before his arrest on the day of so called recovery of sten-gun-Held that: The prosecution case was highly doubtful and therefore the order of appellant's conviction and sentence set aside.(Paras 6,7)(b) Criminal Procedure Code, 1898--S. 103-Suppression of Terrorists (Special Courts) Act (1975) S. 7 thereof- Recovery of narcotics and fire arms-Held that: It had become a practice that the police did not associate the respectables of the locality or members of the public while effecting recovery- Further held: That such a tendency as a practice is deprecated and this High Court directs the Senior hierarchy of the police to issue instructions for the compliance of the provisions of S. 103 Cr.P.C, normally in the cases.I(Para 8)For the Appellant: Zafar Pasha Chaudhry, Advocate.For the State: Ch. Imtiaz Ahmad, Advocate.Date of hearing 7th December, 1994.JUDGMENTARIF IQBAL HUSSAIN BHATTI, J.- Jamees Iqbal alias Beecha, appellant, filed this appeal against his conviction dated 6.7.1993 u/s 13 of the Arms Ordinance, whereby he was sentenced to five years R J. And a fine of Rs.20,000/-.Jamces Iqbal alias Beecha KThe State(Arif Iqbal Hussain Bhatti, J)In case of default of payment of fine, he was further directed to undergo 6 months R J. By the learned Special Judge, Suppression of Terrorist Activities, Gujranwala Division,- Gujranwala. The brief facts of the case are that on 26.10.1992, at 730 p.m., M. Saeed Ahmad SJ. PW-4 was on patrol duty along with Muhammad Younas and other police officials near Bus Stand Sialkot. Jamees Iqbal alias Beecha accused/appellant came there. He was holding a shopper-bag. PW-4 checked the same and found a sten-gun Pi, magazine P2 and some quantity of heroin wrapped in a piece of doth which was seized by the police-officer. The accused bad no licence for the possession of the arms, therefore, he was arrested and challaned for the offence.2. The investigation was conducted by M.
3. Saeed Ahmad PW-4. Being a scheduled offence, the challan of the case was submitted in the court of Judge, Special Court, S.T A. Gujranwala. The prosecution produced for PWs in the case. PW-1 was Sh. Abdur Rashid Fire-arm Expert who declared sten-gun PI as an automatic weapon. PW-2 was Anwar Farooq Moharrir A.SJ. Who on22.10.1992 registered formal FIR Ex. PA/1. PW-3 was Muhammad Younas H.C. Who was a member of the patrolling party, when sten-gun PI was recovered from the accused, he attested the memo PB at the spot. PW-4 was M Saeed Ahmad SJ. Who recovered the sten-gun from the accused at the spot, prepared recovery memo, sent complaint Ex.PA to the police-station for registration of the case. He also conducted the investigation of the case and submitted the challan in Court.3. The accused in his statement denied the recovery on 22.10.1994 stated that he was taken into custody by the police on 18.10.1992 and was kept at the police-station and the false recovery of sten-gun was planted on him. He further stated that he was involved in a murder case and the police in connivance with the complainant party and Sh. Ijaz Ahmad M.P A.
4. Roped him in this case. He did not produce defence but produced certified copies of Ex. DA, DB, DC and DD. ExDA was an application by Muhammad Iqbal father of the appellant submitted in th court of learned Additional Sessions Judge on 20.10.1992. The father had prayed in the application that the appellant was unable to attend the court on20.10.1992 as the Cantonment Police had arrested him on 18.10.1992. This application was supported by an affidavit. Ex. DB was an order of the learned Additional Sessions Judge incorporating the fact that the accused appellant was arrested on 18.10.1992, therefore, an application by the father was moved and that the case was adjourned.
5. Ex.DC is an application for the grant of bail in the said case as well as the order passed thereupon and Ex.DD is the judgment of the learned Additional Sessions Judge by virtue of which the appellant and other accused were acquitted in the murder case.4. Learned counsel for the appellant has submitted that the case was extremely doubtful and made up against the appellant in view of the back ground of enmity of the complainant party due to the murder case and supported by Sh. Ijaz Ahmad, M.P A.Learned counsel has further submitted that the alleged recovery took place at the bus-stand which was a very busy place and not a single public witness witnessed the recovery nor appeared in court in support of the case. Learned counsel further submitted that in view of the documentary evidence through ExJDA, DB,DC, and DD, the falsehood of the recovery was evident when it was established that the appellant was in fact arrested on 18.10.1992 and was in custody of the Cantonment Police, therefore, the so called recovery of 22.10.1992 was fake and concocted.5.
6. We have heard the learned counsel for the appellant, the State and perused the record.6. The submissions of the learned counsel for the appellant have sufficient force. The application submitted by the father on 20.10.1992 supported by an affidavit and then the order passed on 20.10.1992 by the learned Additional Sessions Judge was a sufficient evidence to establish that the appellant was in custody of the police much before his arrest on the day of so called recovery of sten-gun.7. We have noticed that in the cases regarding recovery of narcotics and fire-arms, it has become a practice that the police do not associate the respectables of the locality or members of the public and frequently violate the spirit of the provisions of section 103 Cr.P.C. This tendency as a practice we depricate and direct the senior hierarchy of die police to issue instructions for the compliance of the provisions of section 103 Cr.P.C, normally in the cases..
8. In this case M. Saeed Ahmad PW-4 recovered the arm, arrested the accused and completed the investigation himself. It would have been more appropriate if after the receipt of the complaint and registration of the formal FIR at the police-station, the investigation of the case had been entrusted to a senior police- officer to at least give a colour of authenticity to the prosecution-case. In view of the contentions raised and the points discussed, the case of the prosecution is highly doubtful and we, therefore, set-aside the order of conviction and accept this appeal. The appellant shall be released from jail immediately if not required in any other case, December 07,1994.