' MUHAMMAD NASEEM CHAUDHRI, J.---This appeal is directed r against judgment, dated 14-10-1996 passed by Ch. Zahoor Hussain, Judge Special Court No,IV, Suppression of Terrorist Activities, Lahore whereby he convicted and sentenced Qutab-ud-Din alias Qatba son of Muhammad Tahir resident of Dera Natawana, Hafizabad Road, District Sheikhupura, Muhammad Yousaf alias Pindiwal son of Hassan Muhammad resident of Chak No,89/EB, Babuwala, District Sahiwal and Abdullah alias Dulla son of Maulvi Muhammad Arshad, resident of near Railway Station Kala Khatai, Tehsil Ferozewala, District Sheikhupura as well as Muhammad Fayyaz alias Fayyaju son of Muhammad Mushtaq, resident of Jandiala Sher Khan, District Sheikhupura, Ghulam Rasool alias Pappu son of Ghulam Muhammad, resident of Noor Mohallah, Qadirabad, District Kasur and Shaukat alias Liaqat son of Muhammad Rafique, resident of House No,21, Street No,6, Ayyub Chowk, Jhang whereby each of them was convicted and sentenced to R.I. For a period of five years and to pay a fine of Rs,20,000 or in default of its payment to further R.I. For a period of six months under section 399, Pakistan Penal Code.
2. It is proper to express that Qutab-ud-Din alias Qatba, Muhammad Yousaf alias Pindiwal and Abdullah alias Dullah have preferred this appeal while the remaining three convicts with the aforesaid particulars have not preferred the appeal through any learned Advocate or through the Jail Authorities.
3. The facts giving rise to this appeal are narrated in complaint Exh.P.A. Drafted by Akbar Ali, Inspector C.I.A. City Kotwali, Lahore (P.W.1) in Abadi Alipur on 18-2-1996 at 8-15 p.m. On the basis of which Muhammad Masood, S.-I. (not produced) Police Station Badami Bagh prepared formal F.I.R.
Exh.P.A./1 bearing No,42, dated 18-2-1996 under section 402, P.P.C. Akbar Ali, Inspector C.I.A. (P.W.1) mentioned in Exh.P.A. That on 18-2-1996 in the company of Ghulam Rasool, A.S.-I. And eleven other subordinates of Police Department he was on "Gasht" for the arrest of fugitives of law, on official Vehicle No,LHP 4207 being driven by Mazhar Hussain, Constable. He was present outside the Lorri Adda when he received the secret information from an informant that Muhammad Fayyaz alias Fayyaju, in all six persons, who were involved in cases of dacoity at different places were residing near Railway Line Kachi Abadi, Alipura, Badami Bagh in a rented house who would be busy in making preparation to commit the dacoity in the evening and that they could be arrested if the raid was effected. On that he reached the aforesaid house after constituting a raiding party and apprehended the six aforesaid persons namely Qutab-ud-Din alias Qatba, Muhammad Yousaf alias Pindiwal, Abdullah alias Dulla, Muhammad Fayyaz alias Fayyaju, Ghulam Rasool alias Pappu and Shaukat alias Liaquat. He took into possession .222 bore rifle P.1 alongwith 10 cartridges (having no marks of Exhibit) vide memo. Exh.P.B. From Muhammad Fayyaz alias Fayyaju convict. He took into possession .30 bore pistol P.2 from the possession of Ghulam Rasool alias Pappu vide memo.
Exh.P.C. He took into possession gun P.6 from the possession of Qutab-ud-Din alias Qatba vide memo. Exh.P.D. He took into possession .30 bore revolver Exh.P.8 from the possessiondof Muhammad Yousaf alias Pindiwal vide memo. Exh.P.E. He took into possession rifle Exh.P.4 vide memo. Exh.P.G./1 from Shaukat alias Liaqat. All the aforesaid memos. Were attested by Ghulam Rasool, A.S.-I. (P.W.2) and Abdul Ghafoor, A.S.-I. P.W. (not produced). However, Abdullah alias Dulla was empty-handed. He prepared rough site plan 'Exh.P.F. Of the area and the house where the appellants and other convicts were preparing to commit dacoity. He sent complaint Exh.P.A.
Through Ghulam Nabi, Constable and as expressed above, formal F.I.R. Exh.P.A./1 was prepared. .222 rifle P.1 was sent to the Forensic Science Laboratory, Lahore from where report Exh.P.G. Was received that the same was a semi-automatic weapon. After completing the investigation the challan was submitted in the trial Court.
4. The aforesaid appellants and the remaining three convicts were charged on 9-9-1996 under section 399/402, P.P.C. Who pleaded not guilty thereto and claimed to be tried. It is pertinent to mention that throughout the aforesaid appellants and the other convicts were not represented by a learned Advocate.
5. Akbar Ali, Inspector, C.I.A. Kotwali, Lahore (P.W.1) and Ghulam Rasool, A.S.-I. Stood in the witness- box and supported the prosecution .Case. During their cross-examination they denied the suggestion that a false case was registered against the accused persons who were the labourers in the Sabzi Mandi. When examined under section 342, of the Code of Criminal Procedure the convicts took up the plea that they have been falsely roped in. They maintained that they were not living in the house which they had not obtained on rent and they were arrested from different places. They denied the alleged recoveries of the arms. Neither they produced the defence evidence nor they appeared in the witness-box under section 340(2) of the Code of Criminal Procedure on oath in their respective defence. The aforesaid judgment of conviction was recorded against All the persons tried by the trial Court, out of whom Qutab-ud-Din alias Qatba, Muhammad Yousaf alias Pindiwal and Abdullah alias Dulla have preferred this appeal which has been resisted by the State.
6. We have heard the learned counsel for the appellants as well as the learned counsel for the State and gone through the record before us. The main contentions of the learned counsel for the appellants are that, as mentioned in the complaint. Exh.P.A., there was no case past history of any convict about his involvement in cases of the instant nature, that the recovery of the weapons was violative of section 103 of the Code of Criminal Procedure as no person from the vicinity was joined in the recovery proceedings while there is no explanation for their non-joining even though sufficient time was available to the raiding party and that the owner of the house has not been produced in evidence to make out that all the convicts or any of them had obtained the house on rent from him. On the contrary the contention of the learned State Counsel is that there is no previous animosity of both the Police Officers against the appellants and other convicts and that the prosecution has established the guilt of the appellants beyond any shadow of doubt through.
The statements of Akbar Ali, Inspector (P.W.1) and Ghulam Rasool, A.S.-I. (P.W.2).
7. We are of the view that the prosecution has failed to establish the recovery of the weapons from the appellants and other convicts. The secret information is said to have been obtained from some informant by Akbar Ali, Inspector (P.W.1). However, no search warrant was obtained by him from any competent Court who could not enter the house even under section 47/48 of the Code of Criminal Procedure as neither the convicts were fugitives of law nor any other person if required to be arrested was present in the house. Further no effort was made by him to join any person from the public keeping in view the mandatory provisions of section 103 of the Code of Criminal Procedure. All the police officers of all the ranks are respectable persons. However, the law has to take its course.
8. This is the proper stage to refer to letter, dated 20-8-1990 addressed by the Registrar, Supreme Court of Pakistan, Rawalpindi to the Inspector-General of Police, Punjab, Sindh, N.-W.F.P. And Balochistan, 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. For the proper appreciation the aforesaid letters are reproduced in toto as under:-- "J.B. 32-R(S)88/SCJ"
' Supreme Court of Pakistan ' Rawalpindi, August, 20, 1990.
' From ' The Registrar, ' Supreme Court of Pakistan, Rawalpindi.
' To
(1) The Inspector-General of Police, Punjab, Lahore.
(2) The Inspector-General of Police, Sindh, Karachi.
(3) The Inspector-General of Police, N.-W.F.P., Peshawar.
(4) The Inspector-General of Police, Balouchistan, Quetta.
Sub: WITNESSES OF RECOVERY IN CRIMINAL CASES.
' Dear Sir, ' It has come to the notice of this Court that in a large number of criminal cases, the witnesses of recovery are from the police force and that the Police Officers concerned when appearing before the Court are often unable to give satisfactory explanation, why they failed to associate witnesses of the public in a case where the raid/recovery was planned well in advance. This Court has, therefore, directed that the requirement of associating non-official witnesses in such cases should be impressed upon all concerned.
(2) The Court has also directed in this context that the Courts should also examine two aspects of the issue in such cases. Is there a plausible explanation for not associating witnesses from the public; and whether some features of the cases in addition to the ocular account given by the police officials support the prosecution version when denied by the defence.
(3) It is requested that the above orders of this Court should be brought to all concerned for strict compliance.
(Sd.)
(M.A. Latif)."
LAHORE HIGH COURT, LAHORE No,17712-Genl./1-G Dated Lahore, the 20th December, 1990.
' From ' The Registrar, Lahore High Court, Lahore.
' To ' All the District and Sessions Judges, in the Province of Punjab.
Subject: WITNESSES OF RECOVERY IN CRIMINAL CASES. Sir, ' I am directed to forward herewith a copy of Letter No,J.P.32-R(S)/88- SCJ, dated 20-8-1990, received from the Registrar, Supreme Court of Pakistan, Rawalpindi, on the subject noted above, for inomation and strict compliance by all concerned.
' Your obedient servant (Sd.)
DEPUTY REGISTRAR (ADMN.) for Registrar.
' Endst. No,17713-Gen1/1-G, dated Lahore, the 20th December, 1990. A copy is forwarded for information to:-- ' The Registrar, Supreme Court of Pakistan, Rawalpindi, with reference to his Letter No,J.P.32- R(S)/88-SCJ, dated 20-8-1990.
(Sd.)
' 'DEPUTY REGISTRAR (ADMN.) for Registrar."
9. There is no explanation for not associating the witnesses of the recovery from the public available at the time of the alleged recovery. A perusal of site plan Exh.P.F. Has made out that the place of recovery was surrounded by different houses. The raid/recovery was planned well in advance but there is no evidence to make out that why the Inspector, C.I.A. Did not associate the witnesses of the public in this case. As such the alleged recovery of the weapons has not been established through the statements of Akbar Ali, Inspector (P.W.1) and Ghulam Rasool, A.S.-I. (P.W.2) who were members of the police force. An important aspect of the matter is that even though it is narrated in the complaint Exh.P.A. That there was past history of involvement of the appellants and other convicts in cases of dacoity, no evidence in this regard has been produced and as such, this fact has not been established. Since the recovery of the weapons has not been established by the prosecution there cannot be any question of making preparation to commit dacoity especially when no evidence has been produced to make out the hearing of any type of conversation amongst the convicts that they were making preparation to commit dacoity. It can safely be termed that the making of preparation would also include the hatching of the conspiracy which important fact is missing in the prosecution case. In view of the aforesaid findings the stand of the appellants has to be given the weight which is to this effect that all the convicts did not live in the house and that they were arrested from different places. We, therefore, hold that the impugned judgment cannot be sustained.
10. For what has been said above, we accept this appeal, set aside the impugned judgment and acquit Qutab-ud-Din alias Qatba, Muhammad Yousaf alias Pindiwal and Abdullah alias Dulla appellants. They are undergoing their sentences in Central Jail, Lahore and shall be set at liberty forthwith, if not required in any other case.
11. At this stage learned counsel for the appellants prayed that non-appealing convicts-accused may also be acquitted as equitable treatment has to be afforded to all the persons who were tried and convicted, out of whom three appellants preferred the appeal who have been acquitted.
Learned counsel for the State scrupulously conceded in this regard. We would refer to the dictum enunciated in Mohabbat Ali and another v. The State 1985 SCM R 662 wherein it has been held that where the prosecution has failed to establish the case against the accused (appellants) and the conviction of the convicts-accused has been set aside, the same benefit has to be granted to the non-appealing convicts and they were ordered to be acquitted. In Waqar Zaheer v. The State PLD 1991 SC 447 one of the two accused who had not appealed against his conviction was also given benefit of acquittal in line with the rule laid down by the Supreme Court of Pakistan in Mohabbat Ali and another v. The State 1985 SCM R 662. We would also refer to Article 25 of the Constitution of the Islamic Republic of Pakistan which provides that all citizens are equal before law and are entitled to IC equal protection of law.
12. In view of what has been expressed above, we held that the three non-appealing convicts namely Muhammad Fayyaz alias Fayyaju, Ghulam Rasool alias Pappu and Shaukat alias Liaqat are also entitled to be acquitted due to the acceptance of the appeal preferred by the other convicts (appellants). We, therefore, set aside the judgment under appal in toto and acquit Muhammad Fayyaz alias Fayyaju, Ghulam Rasool alias Pappu and Shaukat alias Liaqat non-appealing convicts as well. They shall be set at liberty forthwith, if not required in any other case.
13. It shall not be out of place to express that the trial Court did not record its judgment about the charge framed under section 402, Pakistan Penal Code as the same is not a scheduled offence under the Suppression of Terrorist Activities (Special Courts) Act, 1975. There is no need to express in this regard in this judgment.