MUHAMMAD NASEEM CHAUDHRI, J.- This appeal is directed against judgment dated 5.10.1992 passed by Ch. Zahoor Hussain, Judge, Special Court, Suppression of Terrorists Activities, Gujranwala Division, Gujranwala whereby he convicted and sentenced Mohsin Atta appellant son of Ch. Attaullah, Caste Jat Warraich, resident of Chauranwali, District Gujrat to undergo rigorous imprisonment for a period of 5 years and to pay a fine of Rs.20,000/- or in default of its payment to further undergo R.I. For a period of six months under section 13 of the Arms Ordinance, 1965.
2. The facts giving rise to this appeal are narrated in complaint Exh.PB sent by Umar Faruq Bhatti, DSP Phalia, District Gujrat (PW-2) to the SHO Police Station Parianwali on the basis of which Ghalib Hussain Moharrir, ASI of the said Thana (PW-3) prepared formal FIR Exh.PB/1. It is narrated in Exh.PB that he (complainant PW-2) in the company of Mr. Khadim Hussain Bhatti, ASP Kharian Circle District Gujrat PW-1, Mr. Kamal-ud-Din, ASP (under-training), Syed Zawar Hussain Shah, DSP Mandi Baha-ud-Din, Abdul Hamid Kiyani, DSP City Gujrat, Syed Shabhir Hussain Shah, Inspector CIA Gujrat, Syed Riaz Ali Shah, Inspector/SHO Police Station Parianwali PW-7, Tahir Mahmood, SI, Mazhar Hussain Shah. SI, Ghulam Haider, SI, CIA Gujrat and Abdur Rasool, ASI/Reader to DSP Mandi Baha- ud-Din alongwith 40 Constables were present in Mauza Chauranwali in connection with the investigation of crime case No. 185 registered at Police Station Parianwali on 10.5.1990 under section 216 Pakistan Penal Code. They entered the residential house of Mohsin Atta appellant and went to his bedroom. Umar Faruq Bhatti, DSP PW-2 took into possession kalashinkove P-1 with to magazines P-2/1-2, containing 140 rounds P-3/140, 9.22 bore rifle P-4, to magazines P-5/1-2, 25 rounds P-6/1-25 and rifle G-III bore P-7 and 285 rounds P- 8/1-285 vide memo. Exh. P-A attested bv Mr. Khadim Hussain Bhatti, ASP PW-1 as well as Syed Zawar Hussain Shah, DSP, Mr. Ramail Din, ASP (under- training) and Abdul Majeed, DSP (all three not produced). He prepared site-plan Exh.PC of the place of recovery. Riaz Hussain Shah, SHO Police Station Parianwali PW-7 submitted application Exh.PW-7/A to the Ilaqa Magistrate and obtained warrant Exh.PW-4/A which he handed over to Muhammad Anaar, Constable PW-4 to effect the arrest of Mohsin Atta appellant who had become an absconder. Exh.PW- 4/B was the proclamation and a copy of the same was pasted on the door of the Court at Phalia. The report of Muhammad Anaar, Constable PW-4 is Exh.PW-4/C and Exh.PW- 4/D. Muhammad Nawaz, ASI PW-6 arrested Mohsin Atta appellant on 25.9.1991 and sent him to the judicial lock-up on 26.9.1991. Muhammad Hani!' Nascent Fire-Arms Expert Forensic Science Laboratory, Lahore (PW-5) examined Kalashinkove P-1 in the Court on 26.7.1992 and gave his opinion that the same was automatic rifle .Of 7.62 MM bore commonly known as Kalashinkove.
Muhammad Nawaz. DSP PW-8 investigated the case and recorded the version of Mohsin Atta appellant. A brother-in-law of the appellant produced before the said DSP the affidavits of some persons about the innocence of the appellant, some licences of the fire-arms in the names of the accused, photostat of the visa of the accused and the record of Pilot Hotel Rawalpindi showing his presence there on the day of alleged recovery. Before him it was pleaded on behalf of the appellant that he had left for London on 11.5.1990. After completing the investigation the SHO submitted the challan before the trial Court.
3. Mohsin Atta appellant was charged under section 13 of the Arms Ordinance, 1965 who pleaded not guilty thereto. At the trial the aforesaid witnesses stood in the witness-box and supported the prosecution case. When examined under section 342 of the Code of Criminal Procedure the appellant termed the alleged recovery of unlicensed kalashinkove P-1 as false who did not on .The same. He took up the plea that he was not present in the village on 10.5.1990 who had gone to Peshawar on 8.5.1990 from where he arrived at Rawalpindi on 10.5.1990, purchased the dollars, stayed in Pilot Hotel Rawalpindi and left for London on 11.5.1990. He took up the plea that one Ch. Faiz Muhammad was his political adversary in the area and due to his influence he was falsely involved in this case without any legal justification. He took up the stand that rifle 30.06 bore was owned by his brother-in-law Haji Muhammad Tabrez who was its licence-holder and he had arrived in his house. He expressed that .22 bore rifle was his licensed rifle.
4. Akhtar Hussain Jaffri DW-1 is a cousin and brother-in-law of Mohsin Atta appellant who stated that he intimated the Superintendent of Police Gujrat that Mohsin Atta was involved in a false case who had gone to London. Haji Muhammad Tabrez DW-2 is the brother of the wife of Mohsin Atta appellant who stated that he came to the house of Mohsin Atta who had left on 8.5.1990 at 8.00 a.m. To go to abroad and that in his absence the police raided his house who also took away his licensed rifle. Irshadullah DW-3 stated that he visited the house of Mohsin Alta on 10.5.1990 when the police took away to rifles from his house and went away. Muhammad Ashraf retired ASI DW-4 claimed that he also partly investigated this case and visited Pilot Hotel Rawalpindi where he checked the record about the stay of Mohsin Atta appellant. Muhammad Yaqoob DW-5, a Sub- Manager in Grindlay's Bank Rawalpindi, stated that on 10.5.1990 Mohsin Atta accused received 200 dollars from the Bank. Shabhir Ahmad DW-6 is the Manager of Pilot Hotel Rawalpindi who stated that Mohsin Atta booked the Hotel for 24 hours at 2.00 p.m. On 10.5.1990. Attaullah DW-7 is the father of Mohsin Atta, appellant who stated that Mohsin Atta lived in village Chauranwala alongwith his family members, that there were eight rooms, on the first floor, that hi' son Mohsin Atta had left for Peshawar to enquire the health of an ailing relative on 8.5.1990 and that on 10.5.1990 he was not present in the house when the police raided the same. The appellant produced different documents Exh.DC to Exh.DW-20/2, the photostats of different documents out of which Exh.DC is a photostat of FIR No. 185 registered on 10.5.1990 at 8.20 p.m. Under section 216 PPC at Police Station Parianwali, District Gujrat on the ground that one Sikandar, fugitive of law, involved in criminal case No. 86/89 under section 302 Pakistan Penal Code registered at Police Station Parianwali was seen having his dinner, by Umar Faruq Bhitai. DSP and police party when both the aforesaid Sikandar and Mohsin Atta (appellant) fled away on a mare on seeing the police parly, it is proper to express that the aforesaid police officers mentioned in this judgment pertaining to FIR No. 186, dated 10,5.1990 registered at Police Station Parianwali are also mentioned as the persons present at the time of the aforesaid raid, after which aforesaid FIR No. 185, dated 10.5.1990 was registered.
5. After hearing the parties the trial Court gave the weight to the raid of the police, recovery of unlicensed kalashinkove P-1, statements of the recovery- witnesses and the alleged abscondence of the appellant. Consequently the appellant was convicted as narrated above. He had preferred this appeal which has been resisted by the Slate.
6. We have heard the learned counsel for the appellant as well as the learned State Counsel and gone through the record before us. The contentions of the learned counsel for the appellant are that fake and false proceedings were conducted, that FIR No. 185, dated 10.5.1990 was registered at Police Station Parianwali ai 8.20 p.m. Under section 216 Pakistan Penal Code which was said to he under investigation when the alleged recovery of Kalashinkove P-1 was effected regarding which the complaint was sent at 8.00 p.m. He clarified that the complaint about the recovery of Kalashinkove P-1 could not be sent at 8.00 p.m. When the earlier FIR was registered at 8.20 p.m.
Under section 216 Pakistan Penal Code. He maintained that no search warrant was obtained and it is a case of transgression of authority on the part of the police officers. According to him Mohsin Atta appellant had left the village on 8.5.1990 for Peshawar who went to Rawalpindi on 10.5.1990 and his presence in the house alongwith Sikandar, fugitive, of law, mentioned in FIR No. 185 of 1990 (copy Exh.DC) could not be expected. He pointed out that it is a case of political victimization at the instance of Ch. Faiz Muhammad adversary in the political field especially when about 50 police officers/officials participated while illegally entering the house of the appellant. On the contrary learned Counsel for the State laid the emphasis that the police was justified to enter the house of Mohsin Atta appellant on 10.5.1990 without any search warrant as he was found alongwith one Sikandar, fugitive of law, of crime ease No. 86/89 registered at Police Station Parianwali under section 302 Pakistan Penal Code. He maintained that the police officers are as good witnesses as the persons from the public and that the conviction against the appellant has rightly been recorded. We are of the view that the reasoning adopted by the learned counsel for-the appellant has to prevail. Legally under section 54 of the Code of Criminal Procedure an accused involved in cognizable offence can be arrested by the police without warrant. If any fugitive of law is in a house the police is empowered under sections 47/48 of the Code of Criminal Procedure to enter the house with the reservation that the females are to be provided the opportunity to retire from the place keeping in view their prestige and honour. It is important to note that about the initial raid to arrest Sikandar absconding accused of crime case No. 86/89 registered under section 302 Pakistan Penal Code at Police Station Parianwali from the Dera of Mohsin Atta, there is nothing in the statements of Khadim Hussain Bhatti, ASP PW-1 and Umar Faruq, DSP (complainant) PW-2. In the instant matter entry in the Dera of Mohsin Atta appellant was allegedly made on 10.5.1990 before 7.30 p.m. On the basis of secret information about the presence of one Sikandar absconding accused of the aforesaid FIR 86/89. However, no copy of the said FIR No.. 86/89 was adduced in evidence by the prosecution to justify the said stand/contention of the police. Without that it cannot be held that free legal had was available to the police to enter the Dera of Mohsin Atta appellant. Mere writing in the matter in FIR No. 185, dated 10.5.1990 registered under section 216 is not enough to enable the police officers to enter the Dera of Mohsin Atta appellant which even otherwise has been claimed to be owned by his father Attaullah DW-7. It is pertinent to mention that from the Dera of Mohsin Atta appellant situated in Chauranwali after the alleged completion of the proceedings about the arrest of Sikandar absconding accused and preparation of complaint, the relevant complaint was sent at 7.30 p.m. To the SHO Police Station Parianwali which was at a distance of 6 miles from the said Dera. The entry of the complaint was made on 10.5.1990 at 8.20 p.m. In the daily diary at report No. 29 of the said Thana'. Thereafter FIR No. 185 (copy Exh.DC) was formally. Prepared which keeping in view the recitals must have consumed at at least half an hour. At the foot of the said FIR No. 185 it is mentioned that a copy was being sent to DSP Phalia.
Keeping in view the distance of 6 miles between Police Station Peranwali and village Chauranwali it cannot be expected that copy of FIR No. 185 reached Parianwali before 8.00 p.m. It is not in the record that the number of FIR recorded under section 216 and mentioned at No. 185 was intimated by the Thana Clerk, to Umar Faruq Bhatti, DSP in the Dera/house of Mohsin Atta appellant on wireless. In this view of the matter it is simply surprising that in complaint Exh.PB of the instant criminal case it is mentioned that it was during the investigation of crime case No. 185 registered at Police Station Parianwali under section 216 Pakistan Penal Code that the raid was effected and unlicensed kalashinkove P-1 was recovered. In this regard complaint Exh.PB of this case is referred to wherein it is narrated that the same was prepared before 8.00 p.m. And was sent at 8.00 p.m. To the SHO Police Station Parianwali for the registration of the formal FIR. It is proper to repeat that if previous complaint was entered in the daily diary of Thana at 8.20 p.m. And thereafter FIR No. 185, dated 10.5.1990 was prepared how it was possible to send the complaint Ex.PB at 8.00 p.m. After recovery of unlicensed kalashinkove P-1 and thereafter the complaint sent at 8.00 p.m. Was entered in daily diary of Thana at 8.55 p.m. On the basis of which formal FIR Exh.PB/1 was prepared.
The aforesaid analysis and dissection of the matter is enough to establish that the proceedings conducted by the Police Officers in the instant FIR No. 186, dated 10:5.1995 are false which were based on false complaint Exh.PB.
7. In the complaint exaggeration has been made about the alleged recovery of many illicit weapons (arms) while during the trial only kalashinkove P-1 was asserted to be without licence.
Thus the initial stand of the appellant that his and that of his brother-in-law's licensed rifles were also taken into possession by the police is correct and rather this fact has also been determined by the trial Court in his favour.
8. It was admitted by Umar Faruq Bhatti, DSP DW-2 that no search warrant was obtained to raid the house of Mohsin Atta. It has already been dissected and held that due to the non-production of- the evidence regarding the raid on the house of Mohsin Atta for the arrest of Sikandar absconding accused the said fact has not been proved. As such without the search warrant the police could not enter the house of Mohsin Atta appellant and it was a case of transgression of authority on the part of the police as has become usual in the Province of the Punjab for the last about to decades ignoring the fact that the Article 14 of the. Constitution of Islamic Republic of Pakistan, 1973 provides that the dignity of man and, subject- to law', the privacy of home, shall be inviolable. The important aspect of the matter is that Mohsin Atta appellant was not the accused of any case before the entry of the police in his Dera and in his house including his bed-room. It shall not be out of place to express that Attaullah DW-7, father of Mohsin Atta appellant, has claimed to be owner of the house with whom the appellant lived as his son in the joint family. In. Such a state of affairs there was no justification on the part of the police to enter the Dera as well as the house of Mohsin Atta appellant without search warrant. This aspect of the matter is enough to make me hold that all the proceedings in the matter not only are violative of law the same offend the legal ethics; moral and human rights.
9. It is in the statements of Khadim Hussain Bhatti, ASP PW-1 and Umar Faruq Bhatti, DSP PW-2 that the raiding party was arranged in Gujrat in the office of the Superintendent of Police, Gujrat at noon when all the police contingent was present which raided the house of the appellant, it is also in their statements that about 50 police officers/officials took part at the time of the raid. The recovery memo. Exh.PA was prepared by Umar Faruq Bhatti complainant PW-2 and attested by Khadim Hussain Bhatti PW-1 as well as three other superior police- officers, not produced during the trial. Since programme in the matter of raid was chalked much earlier at noon time and the raid was effected thereafter at 8.00 p.m. There was sufficient time with the police to associate some respectable persons of village Chauranwali or the surrounding area for the purpose of the compliance of the mandatory provisions of section 103 Code of criminal Procedure according to which the occupant of the place/house could also be asked to attend which fact in the matter is missing even though the females and the servants of the house were present when the police entered the house of the appellant. Since the raid/recovery was planned well in advance it was the duty of the prosecution to make out as to why the witnesses of the public were not associated. In this view of the matter at this stage I have to express that the Registrar, Supreme Court of Pakistan.
Rawalpindi addressed a letter dated 20.8.1990 to the respective Inspector General of Police, Punjab, Sindh, NWFP and Baluchistan, a copy of which was sent to all the District and Sessions Judges in the Province of the Punjab by the Registrar, Lahore High Court, Lahore. The aforesaid letters are reproduced in toto as under:-