1. ' WAHID BUX BROHI, J.---These Appeals have been filed under section 7 of the Suppression of Terrorist Activities (Special Courts) Act, 1975 read with section 410, Cr.P.C. The Appeal No,106 of 1995 is against judgment, dated 24-7-1995 passed by the Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975 herein below referred to as the Special Court (STA) or Special Judge (STA) as the case may be, whereby appellant Jhando was convicted for an offence under section 13(d) of the Arms Ordinance, 1965 and sentenced to R.I. For seven years and fine of Rs,20,000 and in default of payment of fine he had to undergo R.I. For one year more; and Appeal No,107 of 1995 is directed against the judgment of even date passed by the same Court convicting appellant Waris for an offence punishable under section 5 of the Explosive Substances Act and sentencing him to R.I. For 14 years.
2. ' The facts of the case, as reflected in the two F.I.Rs, (Crimes Nos.3 of 1995 and 4 of 1995) lodged at Police Station Malak by Muzafar Hussain Mahar, S.H.O. Police Station Moro, are that on 22-5-1995 S.H.O. Muzafar Hussain accompanied by his staff namely constables Muhammad Sharif, Muhammad Siddiq and Ghulam Rasool, and Muhammad Yousif Messan, S.H.O, Police Station Korai along with his staff H.C. Khameso Khan and constables Muhammad Ismail Sohban Ali, Muhammad Esa, Muhammad Qasim, Mumtaz, Muhammad Saleem, Muhammad Hayat, Zulfiqar Ali Gudaro, Sher Dil and Dost Muhammad were busy in searching the katcha area Under the directions of S.S.P.
3. Naushahro Feroze when they spotted a person armed with Klashnikove standing in the thick jungle near Wahur, who was encircled and captured along with the Klashnikov and a bag containing bullets. On inquiry he disclosed his name as Jhando son of Khan Shahani resident of village Sher Shah Shahani Taluka and District Dadu. He stated that he had no licence for Kalashnikov and bullets and further disclosed that his companion Waris son of Haji Mehar Shahani resident of village Sher Shah Shahani was also sitting in the thicket nearby carrying arms. Accused Jhando was put under arrest for an offence under section 13(d) of Arms Ordinance and such Mashirnama was prepared on the spot which was attested by S.I.P. Muhammad Yousif and H.C. Khamiso Khan.
4. Thereafter, the police party proceeded to the place indicated by accused Jhando where they saw one person sitting in the thicket with rocket launcher mounted to his shoulder and a plastic bag containing some material. He was encircled and caught hold of along with rocket launcher and golas (rockets). He disclosed his name as Waris son of Mehar Shahani and further stated that he has purchased the arms and ammunition for dacoit Sattar Mullah and was going to deliver the same. He was arrested for an offence under section 13(d) of Arms Ordinance and such Mashirnama was prepared in presence of S.H.O., Muhammad Yousif Mesan and H.C. Khameso Khan. Both the accused alongwith arms and ammunitions were taken to Police Station Malak where F.I.Rs, were lodged by S.I.P. Muzafar Hussain Mahar. Inspector Inayatullah, S.H.O. Police Station Malak recorded two separate F.I.Rs, Crime No,3 of 1995 in respect of accused Jhando and Crime No,4 of 1995 in respect of accused Waris, and took up the investigation of both the cases. He recorded the statements of the witnesses under section 161, Cr.P.C., in each case and on the following day he got the statements of P.Ws. Muhammad Yousif and Khameso Khan recorded under section 164, Cr.P.C., by Mukhtiarkar and F.C.M. Moro in presence of respective accused persons. He also produced both the accused persons on the same day for recording their judicial confession by Mukhtiarkar and F.C.M. Moro who recorded the same accordingly. On completion of investigation he challaned accused Jhando and one Manzoor alias Fatto Brohi (as absconder) for offence under section 13(d) of Arms Ordinance. He challaned accused Waris alongwith same Fatto Brohi for offence under section 13(d) of Arms Ordinance and sections 3 and 4 of Explosive Substances Act.
5. ' At the trial, the Judge Special Court (STA) Nawabshah charged accused Jhando (along with absconding accused Manzoor alias Fatto) with an offence punishable under section 13(d) of Arms Ordinance to which he pleaded not guilty and claimed trial. The /same Court charged accused Waris (alongwith absconding accused Fatto) with an offence punishable under section 13(d) of Arms Ordinance and sections 3, 4 and 5 Explosive Substances Act to which he pleaded not guilty and claimed trial. In support of their case the prosecution, in each case produced the same set of witnesses namely P.W.1 complainant S.H.O. Muzafar Hussain, P.W.2 S.H.O. Muhammad Yousif (the Mashir), P.W.3, S.H.O. Inayatullah, the Investigating Officer and P.W.4 Ghous Muhammad Mukhtiarkar and F.C.M. Moro, who had recorded the judicial confession of both the accused persons. The statements of the accused persons were recorded under section 342, Cr.P.C., wherein their case was of simple denial. In defence the accused persons also produced the same set of witnesses namely D.W.1 Ghulam Qadir and D.W.2 Haji Kaloo. On the basis of the aforesaid material the learned Special Judge (STA) Nawabshah convicted the accused persons and sentenced them as stated above.
6. ' We have heard learned counsel for the appellants and learned A.A.-G. For the State. Since both the appeals relate to cases arising out of two incidents occurring within close proximity of time that is to say within 40 minutes and the same set of prosecution witnesses is involved in both the cases and the substance of the evidence led at the trial is almost the same, both the Appeals are being disposed of by a common judgment.
7. ' The case of the prosecution in each case mainly rests on the ocular evidence of complainant Muzafar Hussain Mehar S.H.O. Police Station Moro Exh.5 and Muhammad Yousif S.H.O. Police Station Malak Exh.6 who have deposed at the trial that they alongwith their subordinate staff effected the recovery from the accused persons in the manner stated in the F.I.Rs, Muzafar Hussain Mehar has deposed that under the directions of S.S.P. Naushahro Feroze he proceeded from his police station and took Muhammad Yousif S.H.O. Police Station Korai who also took his subordinate staff and then they proceeded towards river Indus. They left the vehicles at the bank of river Indus and crossed the river by boat. When they reached near Wahur they found accused Jhando, whom they apprehended, and recovered unlicenced Kalashnikov and bullets from him, for which a Mashimama was prepared on the spot. On the pointation of accused Jhando they covered a distance of half a mile and apprehended accused Waris and recovered rocket launcher, 17 golas (rockets) and nine plastic charges for which he had no licence, and after preparing Mashirnama both the accused were taken to Police Station Malak where F.I.Rs, were lodged and the accused and articles were produced before S.H.O. Police Station Malak. P.W. Muhammad Yousif also gave a similar story in his deposition.
8. ' Learned counsel for the appellants questioned the very fact of the search conducted by police on the directions of S.S.P. Naushaharo Feroze. He argued that two S.H.Os. Left their respective police stations presumably under the directions of their S.S.P. For conducting a hectic search but they cared little to discharge their legal obligation of entering their departure in the station diary and at the conclusion of the search when they appeared before S.H.O. Police Station Malak along with the culprits and arms and ammunitions recovered, they were not able to mention in the F.I.R. That they had proceeded from their respective police stations under particular entries. Learned counsel pointed out that the daily diary entry numbers are neither mentioned in the Mashirnamas of arrest and recovery nor in the F.I.Rs, and so also copies of such entries, if they existed at all, were not produced in the Court during the trial which reflects adversely on the truth of the story of prosecution that purposeful departure was made from the police station and a search was accordingly conducted. He submitted that the High Court in a number of cases took a serious view when the copies of relevant entries in the daily diary were not produced at the trial. He relied on along v. The State (1999 PCr.LJ 595) Karachi, Arif Khan v. The State, (1998 PCr.LJ 1287), Qalandro alias Nazro v. State (1997 MLD 1632) and Fareed Ahmad Langra v. The State (1998 PCr.LJ, 1368) in support of his contention. Learned Additional Advocate-General without rebutting the legal position spelt out from these Division Bench decisions of this Court argued that no prejudice was caused to the accused on this account and that the S.H.Os. Of two police stations had proceeded for conducting a search under the directions of their S.S.P., therefore, mere absence of copies of daily diary shall not wash away the entire case.
9. ' We have examined this aspect of the matter in the light of the above case-law. The copies of daily diary have not been produced at the trial in both cases and so also the entry numbers are not mentioned in the Mashirnamas of arrest and recovery of both the appellants as also in the F.I.Rs, lodged in each case. The responsible police officers being in charge of their respective police stations had taken a good number of constables with them and launched a search in and around the forest yet they could not feel the importance of showing their departure in the daily diary of their police stations. Ostensibly, they had no plausible reason to explain the abnormal procedure adopted by them, that is why, the prosecution could not produce copies of such entries at the trial.
10. In the reported case 1997 MLD 1632 (Supra), a Division Bench of this Court has observed that non- production of the vital documents such as copies of station diary showing the police party had actually left the police station and proceeded towards the place of incident creates a serious doubt in relation to the genuineness of, the prosecution story. Reliance in this regard was placed on a number of cases decided by this Court. The same view was taken by yet another Bench of this Court in 1998 PCr.LJ 1368 (supra) holding that non-production of this vital document, that is, copy of station diary showing departure of the police party from the police station surely created a serious doubt in relation to the genuineness of the prosecution story. It is quite interesting to note that in both these cases serial number of entry in the station diary was duly mentioned in the relevant document but the copy was not produced by the witnesses in the Court, whereas in the instant case there is absolutely no mention in F.I.R. Of the serial number of entries made in the daily diary.
11. The prosecution witnesses. Namely S.I.P. Muzafar Hussain Mehar P.W.1 (then S.H.O., Police Station Moro) is silent on the point if he made any entry in the Roznamcha/station diary. In the cross- examination S.H.O., Muzafar Hussain Mehar replied that he has not brought the copy of entry of his departure from the police station while S.I.P. Muhammad Yousif for the first time disclosed in the cross-examination that they left Police Station Korai (of which he was S.H.O.) under entry No,18, dated 22-5-1995 but he had not brought the copy of such entry in the Court. Whether S.I.P.
12. Muhammad Yousif had made such an entry in the daily diary is yet another question the answer to it cannot at all be free from doubt as the entry number was not mentioned in the memos. Of arrest and recovery and the F.I.Rs, On the whole, non-production of copies of entries of station diary militate against the case of prosecution. It may be added that the authorities 1999 PCr.LJ 595 and 1998 PCr.LJ 1287 (supra), both being decisions of a Division Bench of this Court, have also underlined the significance of production of copy of daily diary at the trial. Therefore, we would agree with the learned counsel for the appellants that in both the cases, the prosecution has suffered a setback seriously, on account of absence of serial numbers of daily diary entries in the material documents such as memos. Of arrest and recovery and F.I.Rs, and non-production of copies of such entries at the trial.
13. ' In the background of the above draw back, the learned counsel for the appellants further contended that the evidence of two police officers was not enough to establish the case. In the first instance, he argued that no private person was joined as witness of recovery and even there is no explanation from the police officers who made recovery, if efforts were made to secure persons from the public. In support of his contention he relied on PLD 1997 SC 408. The learned Additional Advocate-General controverted this contention and submitted that both the witnesses have stated that there was no village near the place of incident and since it was a jungle, there was no possibility of presence of any passer-by. As an argument it is quite fascinating one, but as a rule of prudence an explanation has to come from the witnesses themselves. Complainant, S.H.O., Muzaffar Hussain Mehar, has stated that he left police station at 3-00 a.m. In his cross-examination he stated that no private Mashir was taken by him. He further stated that no private Mashir was available, therefore, he did not take any. This might be an explanation indicating the state of affairs at 3-00 a.m. When he left the police station, but he has not explained what was the situation at the time when he crossed the river Indus. It may be mentioned here that in his examination-in-chief he stated that they crossed the River Indus and reached the forest at 6-00 a.m. S.H.O. Muhammad Yousif has also given the same version. The incident had taken place on 2nd May, 1995 in those day of the month of May, the time of sun rise in this part of the country was around 5-45 a.m. In this way, it could' not be said that the time was odd hours of night and no private person was available.
14. In any case Muzaffar Hussain's explanation is quite vague. On the other hand, S.H.O. Muhammad Yousif has stated in his cross-examination that no private person was available, therefore, they did not take any, as it was night time and odd hours of night. This version quite reasonably permits the defence to raise a finger, if really this witness was in the police party, because after sun rise (at 6- 00 a.m.) it can hardly be said that it was night time. Certainly, in such circumstances, on one hand while Muzaffar Hussain's version, justifying absence of private Mashirs is not plausible, at the same time, presence of Muhammad Yousif in the police party to some extent falls open to question. This view is further strengthened by the statement of Muhammad Yousif, recorded under section 164, Cr.P.C., against which, in the latter part of this judgment, observations would be made about its evidentiary value, but, for the moment, it is worthwhile to mention that in the said statement he has not been able to state specifically how many bullets were secured from the magazine of the Klashnikov recovered from accused Jhando and what was the quantity of the bullets in the shoulder bag.
15. ' We are constrained to take precautions in scrutinizing the evidence closely for the reason that ultimate fate of both the cases depends on the evidence on these two police officers because of non-availability of private and disinterested witnesses. The case of accused persons in defence is that they were arrested along with many other persons and those others were released while present appellants were implicated in two different cases. D.W. Ghulam Qadir stated that he was sitting in the Otaq of Ghulam Hussain Shahani when three vehicles of police came over there and took him along with Ramzan, Ghulam Hussain and the appellants Jhando and Waris to Police Station Malak from where he was released after 10/12 days and, lateron, he came to know that Jhando and Waris appellants were challaned in these cases. Learned Trial Court has rejected the evidence of defence witness on the ground that the second defence witness Kaloo has stated that he was taken by police to Otaq of Haji Hashim Shahani where Waris, Jhando, Ramzan and Ghulam Qadir were present and police took all of them to Police Station Moro and after 2/3 days they were released while the present appellants were challaned. It may be appreciated that D.W. Ghulam Qadir has never spoken of Kaloo and he did not state that Kaloo was also taken by police along with them, therefore, any version given by Kaloo would at best make the evidence of Kaloo doubtful because Kaloo has spoken of Ghulam Qadir but the testimony of Ghulam Qadir cannot be rejected outright. At least to the extent of establishing the fact that police had all of a sudden hauled up a number of persons including the present appellants, the evidence of Ghulam Qadir cannot be discarded, merely because he is a defence witness. His testimony cannot be brushed aside after all it is also a piece of evidence-on solemn affirmation oath.
16. ' In the result we would conclude that the prosecution was not absolved of the obligation to produce disinterested witness in support of police version. As held by the Honourable Surpeme Court in the land mark judgment on the point of recovery of an unlicensed article like K.K. Mushtaq Ahmed v. State (PLD 1996 SC 574) the prosecution is bound to produce disinterested witnesses from public in support of produce witnesses or to explain that private Mashirs were not available failing which the evidence of police witnesses would not warrant conviction. The above said authority has further been relied in The State v. Bashir (PLD 1997 SC 408) on the same point. We have already pointed out in the foregoing paras. That justifiable explanation for not joining independent Mashirs has not come forward, the recovery, therefore, cannot be treated free from doubt.
17. ' As regards the statements recorded under section 164, Cr.P.C., it is an admitted position that no notice was given to the appellants before recording of statements of Oath under section 164, Cr.P.C.
18. The authorities PLD 1982 Karachi 975 and 1984 PCr.LJ 3138 put the Court on caution while assessing the evidentiary value of statement recorded under section 164, Cr.P.C. Without notice to accused.
19. Learned Additional Advocate-General, however, rebutted the contention raised by the defence counsel in this regard on the point that the above authorities proceeded on the premises of section 265-J, Cr.P.C. Which is applicable to sessions trial whereas the procedure applicable to the trial by the Special Cour t under the Suppression of Terrorist Activities (STA) Act, 1975, is that of a case triable by the Magistrate. We are unable to agree with the learned Additional Advocate-General for the reason that the object underlying the condition of recording statements under section 164, Cr.P.C. In presence of accused as observed in the case reported as PLD 1982 Karachi 975, is based on the cardinal principle of law, enshrined in the Constitution also that every person has a right to be defended by an Advocate of his choice. He cannot, while in custody, all of a sudden exercise his right of cross-examination effectively. Subsection (1-A) of section 164, Cr.P.C. In express terms confers a right on the accused to avail an opportunity of cross-examining the witnesses making statements before the Magistrate. Therefore, by necessary implication, if due and reasonable opportunity is not afforded to the accused for cross-examination a witness such statement is to be ruled out of consideration.
20. ' The most important piece of evidence, the prosecution depended upon, is the judicial confession of both the appellants recorded on 23-5-1995 by Ghous Muhammad the then Mukhtiarkar and F.C.M. Moro. The deposition of Mukhtiarkar has been recorded as P.W.4 Exh.9 in each case. He stated that he had issued all necessary warnings and taken due precautions and he was satisfied that the confession made by the accused was voluntary and true. At this stage it may be pointed out that the confessions have been retracted by the accused persons. Without adverting to the point of voluntariness, we can conveniently hold that ex facie the confessional statements are not true, for, the story given by each of the appellant in his confession is different from that of the prosecution story. In the first instance, an abrupt reading of the vernacular version given by the appellants in their confessions would show that almost the same words were spoken by each accused although the confessions were recorded at different times. Secondly, according to this confessional version, which is common in both, the accusid persons were going together deliver the arms and ammunitions to dacoit Sattar Mullah when police captured them, whereas it is the case of the prosecution that first Jhando was apprehended with K.K. Loaded with 30 bullets and shoulder bag containing 70 bullets and then on his pointation and after covering half a mile appellant Waris was apprehended with a rocket launcher, (rocket) and plastic charges. Without any further discussion it can reasonably be inferred that the confessional statements are neither reliable nor true. The judicial confession if found to be not true, that is to say, not conforming to the C prosecution story cannot be relied upon for the purpose of founding conviction thereon, the authority 1992 SCMR 196 may be cited with advantage in this context. Thirdly, it is very unfortunate on the part of the Trial Court to record the evidence in the manner in which it is available in Court's record of both these cases on a thorough and minute perusal of depositions of Mukhtiarkar and F.C.M. Moro which have been recorded separately as Exh.9 in both the cases, it appears unmistakenly that both the depositions are verbatim reproduction of each other excepting the names of the accused and time of their arrest even the corrections made at certain places are common. The deposition stretches over 61 typing lines in each case containing more than 600 words but surprisingly all the sentence are word by word same in each deposition. This illegal manner of recording evidence by the Trial Court vitiates the entire trial.
21. ' Learned counsel for the appellants found fault in the manner in which statements under section 342, Cr.P.C.. Were recorded. According to him, all the circumstances adverse to accused while recording the statements should have been put to them and the property ought to have been shown to them. Learned Additional Advocate-General in rebuttal argued that the property was shown to the accused during the recording of evidence of two police officers, therefore, it was not an essential requirement to repeat the same at the time of recording the statements under section 342, Cr.P.C. We have given anxious consideration to this contention and found that the shoulder bag, which allegedly containing 70 bullets was recovered from the possession of Jhando, was not at all produce during the trial, and no explanation was furnished even at the time of arguments.
22. This, indeed, is a procedural defect in the conduct of trial having its own effect thereon, but we are unable to bear with the learned counsel for appellants that if the case property is not shown to the accused while recording his statement under section 342, Cr.P.C., it shall be taken as a legal lacuna affecting the entire statement. The contention is, therefore, repelled.
23. ' Learned counsel for the appellants argued that the weapons etc., were not sealed on the spot and the explosive substances and the fire-arms etc., were not forwarded to the ballistic expert to prove that the fire-"inns were of the kind for which they were no be tried and punished by the Special Court. Learned Additional Advocate-General in rebuttal submitted that nature of the fir-arms and weapons was not doubtful, therefore, it was not necessary to forward the same for expert opinion.
24. We are afraid, the view expressed by the learned Additional Advocate-General cannot be sustained as till this day there is no proof with the prosecution that the bullets are live and that the fire-arm secured from the accused Jhando is Klashnikov. There is no proof that the rocket (golas) are really live devices and the plastic charges are in working condition. The learned counsel relied on the authorities 1998 PCr.LJ 1368, 1996 PCr.LJ 1410, 1998 PCr.LJ 1287 and 1999 PCr.LJ 595, on these points. In these reported cases the fact of not sealing the arms etc., secured and the irregularity committed in not sending the same to ballistic expert, were invariably considered as serious infirmities and benefit thereof was given to the accused. Following the same principle, we agree with the learned counsel for the appellants that the benefit arising out of these irregularities shall also extend to the appellants in the instant case.
25. ' Learned counsel for the appellants raised a technical point that proper sanction for prosecution under section 7 of the Explosive Substances Act, 1908 was not issued by the Government of Sindh, therefore, trial of appellant Waris for possessing explosive substance and convicting him for such offence was illegal and, therefore, the conviction is liable to be set aside. This contention is without merits as the sanction for prosecution issued by the Government of Sindh on 19-6-1995 has been placed on record as Exh.7-A. Section 7 of the Explosive Substance Act, 1908 places restriction on the trial of offences against the said Act without consent of the Provincial Government, but since the charge was framed on 3-7-1995 while the sanction, Exh.7-A was issued earlier to this date, therefore, there was no defect in the trial.
26. ' To sum up, the prosecution has failed to make out a case beyond reasonable doubt since the evidence produced at the trial is not sufficient to base conviction thereon. There was no disinterested and independent witness to establish the recovery of arms and ammunition and explosive substances and no explanation was furnished by the prosecution why independent Mashirs were not joined to witness the recovery. The copies of daily diary entries were also not produced to prove that the police party had actually left the respective police stations for a general search, the judicial confessions were not true and the deposition of Mukhtiarkar and F.C.M.
27. Moro recorded at the trial created serious doubts and vitiated the trial, the articles were neither sealed nor sent to the ballistic expert and the evidence of defence witness Ghulam Qadir showed that the appellants were arrested from an Otaq and not the places of incident shown by the prosecution.
28. In view of the foregoing draw backs and infirmities in the case of prosecution in each matter, the convictions cannot be sustained. Consequently, both the appeals are allowed and it is directed that the appellants be forthwith set at liberty if not required in any other case.