1. ' MUHAMMAD ASLAM ARAIN, J.--- This appeal under section 7 of the Suppression of Terrorist Activities (Special Courts) Act, 1975, is directed against judgment, dated 8-7-1993, passed by the Special Court No,IV (S.T.A.), Karachi, whereby the appellant, who was tried for an offence under section 395, P.P.C. Has been convicted and sentenced to suffer R.I. For 10 years and fine of Rs,50,000 or in default to suffer further imprisonment for 2 years. The appellant is, however, given benefit of section 382-B, Cr.P.C.
2. ' On 2-9-1991 one Muhammad Hanif lodged F.I.R. No,113/91 at Model Colony Police Station, Karachi, under section 382/34, P.P.C. It was stated that he resided alongwith his family members at Jaffer Bagh, Model Colony, Karachi and was serving in P.IA. As Electrician. On the day of incident when he returned home from his duty, he alongwith his wife, children and one guest Muhammad Farooq were watching T.V. When there was knock at his door. Farooq went and enquired from the callers as who they were and whom they wanted to meet. They replied to him that they wanted to meet the complainant Muhammad Hanif. It is stated that the culprits, who were 5 in number and carrying fire-arms dragged Farooq inside the house, they forced the complainant and other inmates of the house to surrender whatever they had. They then ransacked the house and removed valuable articles from the Almirah and other places of the house and while going back, the key of complainant's car bearing No,LHE-688 was also taken and drove away in the said car.
3. ' Investigation was started and it appears that the complainant Muhammad Hanif was called by the Investigating Officer on 18-1-1991 as the police had some information regarding some culprits hiding themselves in an under-construction and abandoned house. The police party accompanied by the complainant raided the house and arrested five culprits, including the appellant herein, one Ejaz Mahmood (drowned in sea) after his release on bail, Syed Ilyas Shah, Syed Taj Shah and Shahzad. At the pointing of the accused, some articles were recovered which were said to have been robbed from the house of the complainant.
4. ' It is on record that three accused Syed Ilyas Shah, Syed Taj Shah and the other Shahzad escaped from police custody but it is not known as to whether they have been arrested till this date. The appellant herein and co-accused Ejaz Mahmood, were sent up to face trial. As pointed out earlier, Ejaz Mahmood on his release on bail is stated to have been drowned and although his father made such statement before the trial Court, it is obvious that his dead body was never found. Only appellant was, therefore, tried while the three accused, named above, who fled from police custody were tried in absentia. All are convicted and sentenced to R.I. For 10 years and fine of Rs,50,000 each.
5. ' On 16-1-1992 Court-witness No,1 Zulfiqar Ali an A.S.I., was examined, who returned the process in respect of the absconding accused and stated that the said accused were untraceable.
6. ' Charge (Exh.7) was framed against the appellant and the co-accused Ejaz Mahmood under section 395/34, P.P.C. To which they pleaded not guilty.
7. ' The prosecution examined P.W.1 Muhammad Hanif, complainant (Exh.8), who produced F.I.R.
8. (Exh.8-A), Mashirnama of Wardat (Exh.9), memo. Of recovery of Car (Exh.10), memo. Of recovery of articles at the pointing of the accused (Exh.11), memo. Of arrest of accused (Exh.12) and memo. Of recovery of some more articles from some of the accused (Exh.13). The prosecution then examined P.W.2 Khuda Bux (Exh.15), who acted as one of the Mashirs to Exhs.9 to 11, P.W.3 Investigating Officer All Yar Khan (Exh.15) and P.W.4 S.H.O. Bashir Ahmad (Exh.16) who had although not conducted any investigation but he only sent up the accused. The last witness examined by the prosecution was P.W.5 Muhammad Irshad (Exh.18), who was said to have been one of the Mashirs to Exhs.9, 11 and 13.
9. It may be worth-mentioning that this Mashir was declared hostile and with the permission of the Court was cross-examined. Under statement (Exh.19) the prosecution closed its side.
10. ' The learned trial Court then examined Dr. Saeed Mehmood as Court-witness No,2, who being the father of co-accused Ejaz Mahmood stated that his son had drowned and his dead body could not be traced.
11. ' In his statement under section 342, Cr.P.C. The appellant denied the allegations against him. He neither examined himself under section 340(2), Cr.P.C. Nor led any defence. On conclusion of the trial Court the appellant is convicted as stated above and through this appeal the sentence and conviction ' has been impugned.
12. ' We have heard the learned counsel for the parties. The main contentions raised oh behalf of the applicant are, that in his evidence the complainant Muhammad Hanif has stated that the culprits were known to him, being the residents of same Mohallah and often visited him to recover Chanda, yet the names of the culprits or their description were not given in the F.I.R. And his evidence in Court is thus an exaggeration and such a witness could not be worthy of reliance. It is next argued that although during cross-examination complainant stated that he had given all the details of the culprits and that he knew them, yet such contradiction has been proved through the Investigating Officer and it has come on record that the complainant had not given all the particulars of the culprits which he gave before the trial Court. It is next argued that according to the prosecution case, on 18-1-1991 at about midnight time the complainant was called by the Investigating Officer to accompany the police party to a place where some culprits were hiding and that he went with police and during the raid in which police arrested five culprits, the complainant identified appellant to be the same who entered into his house and committed robbery. The contention of the learned counsel is that in such circumstances, it was obligatory on the police to have associated independent and respectable residents of the area and such having not been done, there is violation of the mandatory provision of section 103, Cr.P.C. To support such contention learned counsel has placed reliance on the case of Yameen Kumhar v. The State PLD 1990 Kar. 275 and Yar Muhammad and 3 others v. The State 1992 SCM R 96.
13. ' It is further argued that mere identification by the complainant of some culprits was not sufficient to record conviction in a case of this nature, but the complainant's wife and his guest Muhammad Farooq, who had distinctly seen the culprits, had necessarily to be called for identification of the culprits, which has not been done. This lapse on the part of the trial Court, according to the counsel is also not condonable.
14. ' Mr. Khawaja Naveed Ahmad has also contended that the weapons allegedly recovered either from the appellant or from the other culprits were not sent to Ballistic Expert to find if such weapons were automatic or semiautomatic so as to give jurisdiction to a Special Court, created under Act of 1975 to try the accused.
15. ' The learned AA.-G. While supporting the conviction and sentence has argued that the complainant in fact did not give the details of all the culprits in the F.I.R. Which was not the requirement of law as he was in a state of panic and only gave the number of culprits and the manner in which they had entered in his house and at gun point robbed the articles. As to the observance of the provisions of section 103, Cr.P.C. The contention of the learned AA.-G. Is that in these days and particularly in the area of Model Colony where there has always been law and order situation, nobody would turn up during the odd hours of the night on call of the Police Officer to act as Mashir to earn wrath of such culprits. The main thrust of the arguments of learned A.A.-G.
16. Is that the complainant had no motive to falsely implicate the appellant or to say that the articles allegedly recovered at the pointing of the accused were the same robbed by the culprits. It is lastly contended that the accused in his statement under section 342, Cr.P.C. Has not suggested any plausible defence nor made out an arguable case to justify that his mere denial would falsify the entire prosecution case.
17. ' We have considered the above contentions and also gone through the evidence. There is no denying of the fact that the complainant did not give the names or description of the culprits in the F.I.R. When he was examined by the trial Court, he stated that the culprits were known to him being from his own Mohallah and often visited him for recovery of Chanda. Such improvements being contradictory in nature were duly proved by the defence through the Investigating Officer.
18. It is a matter of record that the police had advance information about the presence of some culprits at a bungalow when they called the complainant to accompany the party while the raid was to be conducted. In our view, and as laid down in the cases, cited above, it was mandatory on the part of the police to have associated two independent and respectable residents of the area to act as Mashirs during arrest and recovery proceedings. As held in the case of Yameen Kumhar above cited, the provisions of section 103, Cr.P.C. Are although mandatory but not absolute and in appropriate cases departure from such provisions could be made. No circumstance warranting departure is pointed out to us. The arrest, in the circumstances, of the appellant or co-accused would become doubtful.
19. ' The complainant may have been knowing some of the culprits, as according to him they were the residents of his Mohallah. The other inmates of his house, particularly the wife and guest Muhammad Farooq did not know the accused. After the arrest of the accused an identification parade through a Magistrate was also mandatorily to be held which too has not been done. No a reason has come on record as to why Wife of complainant and P.W. Farooq were neither called for identification parade nor examined during the trial.
20. ' Another circumstance in the case is that one of the independent Mashirs Muhammad Irshad was declared hostile and the other Mashir has not been examined. Even during the cross-examination by the learned S.P.P. P.W. Muhammad Irshad has not been discredited and we have hardly any reason to disbelieve his evidence.
21. ' It was argued by the appellant's counsel at one stage that when the incident took place the appellant was minor although during trial a medical board certified him to be the major being 17 years of age. This point, we would not like to consider at this stage as we are hearing an appeal after the conviction is recorded. However, the fact would remain that the appellant, who is of tender age, is convicted and sentenced to suffer R.I. For 10 years on the basis of evidence which is not only sketchy and incoherent but also not worthy of reliance.
22. ' In the result, this appeal is allowed and conviction and sentence are set aside and the appellant is acquitted. He shall be released forthwith unless required in any other case.
23. ' Before parting with this judgment, we consider it proper to observe that three co-accused named hereinabove escaped from police custody which reflects the efficiency of the police and the manner in which the investigation of this case was conducted. A copy of this judgment shall, therefore, be sent to the Home Department for taking appropriate action against those who may be found responsible for the ascension of the three culprits.