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Petitioner: MUSHTAQ AHMAD VS Respondent: THE STATE
Court Name: Supreme Court of Pakistan Judge(s): Saeeduzzaman Siddiqui, Mukhtar Ahmed Junejo, Ajmal Mian Title: MUSHTAQ AHMAD vs THE STATE Case No.:Criminal Appeals Nos.75 and 76 of 1995 Criminal Appeals Nos. 1281 of 1991
JUDGMENT
Reported As: PLD 1996 Supreme Court 574 Result: Appeal accepted Judgment JUDGMENT ' AJMAL MIAN. J.---By this common judgment, we intend to dispose of the above two appeals as they involve common questions of facts and law. Both the appeals are filed by the appellant with the leave of this Court against two separate judgments both dated 12-12-1993 passed by a Division Bench of Lahore High Court in Criminal Appeal No 1281 of 1991, filed against the judgment dated 23- 11-1991 of the Special Court No, IV (Suppression of Terrorist Activities), Lahore Division, Lahore, hereinafter referred to as the Special Court, convicting the appellant under section. 13 of the Arms Ordinance, hereinafter referred to as the Ordinance, for illegally possessing a Klashnikov and 25 live cartridges, and sentencing him to six years' R.I., and in Criminal Appeal No 1307 of 1991 filed against the judgment dated 23-11-1991 of the Special Court, convicting the appellant under section 5 of the Explosive Substance Act, 1908, hereinafter referred to as the Act, for illegally possessing a hand grenade, and sentencing him to ten years' R.I. And forfeiture of his whole property, dismissing Criminal Appeal No 1281 of 1991 in toto, whereas dismissing aforesaid Criminal Appeal No 1307 of 1991 with the modification of reducing sentence of ten years' R.I. To six years' R.I., but maintaining the forfeiture of the appellant's property. 2. Leave to appeal was granted in both the aforementioned appeals to consider, whether in the circumstances of the case, particularly the fact that no public witness was associated with the alleged recoveries from the appellant, it was in the interest of safe administration of justice to convict the appellant. 3 The brief facts are that lftikhar Ahmad, D.S.P. Headquarters, on 15-4-1991 at about 2-00 a.m., received a spy information' that a /proclaimed offender Qalb-e-Abbas, who was allegedly involved
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in a number of criminal cases, was harboured by the appellant, Mushtaq Ahmad, in his Dera situate in village Jhalokey, P.S. Baraghar, District Sheikhupura. He called Ch. Abdul Mateen, D.S.P. CIA, Manzar Shah, D.S.P., Nankana Sahib, Ata Muhammad. Inspector, P.S ' A' Division, Sheikhupura, besides a number of other police personnel. The police party, which was headed by lftikhar Ahmad, D.S.P., reached the above village at about 5-30 a.m. On the same day. It was alleged that due to the barking of dogs, Qalb-e-Abdas and the appellant Mushtaq Ahmad woke up. The former, by scaling over the eastern wall of the Dera, made good his escape on a mare, which was standing near the wall. Upon entering into the Dera, the raiding party found the appellant Mushtaq Ahmad holding a Klashnikov in his right hand and a bag on his left shoulder having a hand grenade, which were procured under Exh.P.1 and Exh.PB. It was further alleged that aforesaid proclaimed offender, while escaping from the Dera, left behind a Klashnikov and a hand grenade on the cot on which he was sleeping. An F.I.R was lodged by said lftikhar Ahmad. DSP (P.W.3) with Police Station Baragarh. On the basis of the F.I.R, two separate challans were submitted against the appellant; one under the Ordinance and the other under the Act. The aforementioned two cases were tried separately. ' In the first case, the prosecution examined four witnesses, namely, Shahbaz Ali, A.S.I. (P.W.1), who recorded the formal F.I.R (Exh PA/1) on the basis of the complaint, Exh.PA, Ata Muhammad, Inspector/S.H.O. (P.W.2), who was also Mashir to the recoveries, Iftikhar Ahmad, D.S.P. (P.W.3), who headed the raiding party, and Muhammad Sharif (P.W.4), who was the second Mashir. The appellant, Mushtaq Ahmad in his statement under section 342, Cr.P.C. Stated that he was innocent and that he was falsely solved in the case by the police at the instance of one, Ashiq Minhas, Member of District Council, Sheikhupura, who was helping his aunt, with whom he had litigation. He also alleged that he was not arrested from the Dera but from Chak No,53/1 on 12-4-1991 and not on 15-4,1991. In support of his above assertion, he produced a copy of Urdu newspaper Nawa-i-Waqt dated 13-4-1991 showing his arrest from Chak No,53/1 on 12-4-1991. ' Whereas, pursuant to the challan submitted under the Act, the prosecution produced eight witnesses, namely, Shahbaz Ali, A.S.I./Moharrir (P.W.1), who on 15-4-1991 prepared the formal F.I.R. On the basis of Exh.PA, Ata Muhammad, Inspector/S.H.O. (P.W.2), who was a member of the raiding party and also a Mashir to the recoveries, Iftikhar Ahmad, D.S.P. (P.W.3), who had headed the raiding party, Agha Asghar Ali, Bomb Disposal Officer (P.W.4), who on 16-5-1991 examined the hand grenade (Exh.P.1) and submitted his report in respect thereof (Exh.PC), Abdur Rehman Constable (P.W.5), who on 16-5-1991 delivered the parcel containing hand grenade to the Bomb Disposal Officer, Muhammad Sharif (P.W.6), who was also a member of the raiding party and was one of the Mashirs to the recoveries, Ali Asghar, Constable (P.W.7), who handed over sealed parcel of a hand grenade to Zahoor Ahmad for keeping it in safe custody and onward transmission, and Zahoor Ahmad, A.S.I. (P.W.8), who had received the above sealed parcel of hand grenade. ' The appellant, Mushtaq Ahmad, in his statement under section 342, Cr. P. C. Stated as under: -- "I have been falsely involved in this case. I have litigation with my aunt and one Ashiq Minhas, Member District Council who helps my aunt in that litigation. He is my enemy so he has got me falsely involved in this case with the help of lftikhar Ahmed Khara, D.S.P. I was not arrested in my Dera in Village Jhulokey but from Chak No,53/1 on 12-4-1991, and not on 15-4-1991. The recovery of the hand grenade has been planted upon me. The fact of recovery was reported in the daily Nawa-i-Waqt, dated 13-4-1991." 4. However, the learned Special Court, after hearing the arguments of the parties, recorded conviction in both the above cases in the aforesaid terms through two separate judgments of even date, namely, 23-11-1991, against which, the appellant filed two Criminal Appeals, which were dismissed by the High Court in the above terms. After that, he filed two petitions for leave to appeal in this Court, which were granted to consider the above question.
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' Criminal Appeal No,75 of 1995 covers the case under the Ordinance, whereas Criminal Appeal No,76 of 1995 relates to the conviction and sentence of the appellant under the Act. 5. In support of the above appeals Mr. Mehmood Ahmed Khan, learned A.S.C. For the appellant,' has vehemently contended that the appellant was falsely involved in the case inasmuch as he was in fact arrested on 12-4-1991, whereas his arrest was shown in the morning of 15-4-1991. His further submission was that there were number of houses situated near the Dera, but no respectable person of the locality was made a Mashir to the recoveries particularly keeping in view the time of the alleged raid was in the early hours of the morning when generally farmers go to their fields. He also submitted that, even otherwise, the facts as disclosed by the prosecution are highly improbable. ' On the other hand, Sh. Muhammad Naeem, learned counsel appearing for the State, has supported the judgments of the Courts below and contended that the arrest of the appellant was made on 15-4-1991. He further submitted that police personnel could be Mashirs to the recovery and witnesses to the incident and that there is no peculiar feature which may cast doubt about the correctness of the prosecution case. 6. Before dealing with the above contentions, it may be pertinent to point out that the aforesaid alleged proclaimed offender was tried under the Ordinance as well as under the Act and was convicted by the Special Court, but the same Division Bench of Lahore High Court, through two separate judgments both dated 12-12-1993, passed in Criminal Appeals Nos.1280 of 1991 and 1318 of 1991 filed by said. Qalb-e-Abbas, set aside the convictions and sentences, but maintained the same against the appellant, Mushtaq Ahmad, as stated above. 7. Be that as it may, we have gone through the evidence with the assistance of the learned counsel for the appellant and the State, and we find that the factum that factually appellant Mushtaq Ahmad was arrested on 12-4-1991 and not on 15-4-1991, stands proved by the admission of Ata Muhammad, Inspector/S.H.O., P.S. Saddar, Sheikhupura (P.W.2), in his cross-examination (at page 62 of the paper book of Criminal Appeal No,76 of 1995), which reads as under:-- "It is correct to suggest that Mushtaq accused was arrested on 12-4-1991 from Chak No,3 and not on the morning of 15-4-1991." ' This admission stands corroborated by the newspaper clipping of daily Nawa-iWaqt dated 13-4- 1991 at page 73 of the Paper Book of Criminal Appeal No,75 of 1995). The news item appearing in the above newspaper about the arrest of appellant Mushtaq Ahamd was put to the prosecution witnesses including to Iftikhar Ahamd, D.S.P. (P.W.3). He was unable to offer any reasonable explanation. In this view of the matter, the entire prosecution case is founded on dishonesty as the raid had been shown having conducted in early hours of 15-4-1991. 8. The story as unfolded by the prosecution, namely, that the raiding party encircled the Dera of appellant Mushtaq Ahmad early in the morning of 15-4-1991 at 5-30 a.m. And raided the same having about 25/39 police constables besides police officials as per P.W.4 Muhammad Sharif at page 66 of the paper book of Criminal Appeal No,76 of 1995), but proclaimed offender, Qalb-e- Abbas, succeeded in making good his escape from the Dera by scaling over the eastern wall and riding a mare which was standing near it. It is also surprising that the appellant Mushtaq Ahmad had a Klashnikov in his right hand which he did not use and a bag on his left shoulder having a hand grenade. 9. Besides the above factual aspect, which casts serious doubt on the prosecution case, Mashirs to the alleged recoveries were police personnel and no respectable person of the locality was associated with the recoveries though Iftikhar Ahmad, D.S.P. (P.W.3), who was heading the raiding party, admitted the factum that some persons from the public had gathered at the Dera at the time of the recoveries, but, according to him, no one was willing to become a witness (at page 66 of the Paper Book of Criminal Appeal No,75 of 1995). On the other hand, Ata Muhammad,
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Inspector/S.H.O. (P.W.2), in his cross-examination stated that there was no person from the Dera available at the time of conducting of the raid (at page 62 of the Paper Book of Criminal Appeal No,75 of 1995). 10. In this regard, it may be pertinent to refer to section 103 of the Code of Criminal Procedure, which is contained in Chapter VII, and the relevant case-law on the subject. Section 103 of Cr.P.C. Reads as under:- "103. Search to be made in presence of witnesses.--(1) Before making a search under this chapter, the officer or other person about to make it shall call upon two or more respectable inhabitants of the locality in which the place to be searched is situated to attend and witness the search and may issue an order in writing to them or any of them so to do. (2) The search stall be made in their presence, and a list of all things seized in the coarse of such search and of the places in which they are , respectively found shall be prepared by such officer or other person' witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it. (3) Occupant of place searched may attend. The occupant of the place searched, or some person in his behalf, shall, in every instance, be permitted to attend during the search, and a copy of the list prepared under this section, signed by the said witnesses, shall be delivered to such occupant or person at his request. (4) When any person is searched under section 102, subsection (3), a list of all things taken possession of shall be prepared, and copy thereof shall be delivered to such person at his request. (5) Any person who, without reasonable cause, refuses or neglects to attend and witness a search under this section, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under section 187 of the Pakistan Penal Code." ' A perusal of above section 103 indicates that subsection (I) thereof enjoins that before making a search under this Chapter, the officer or other person who is about to make search, shall call upon two or more respectable inhabitants of the locality in which the place to be searched is situated to attend and witness the search and may issue an order in writing to them or any or them so to do. ' Whereas subsection (2) thereof envisages that the search shall be made in the presence of the above respectable inhabitants and a list of all the things seized in the course of such search and of the places in which they respectively found shall be prepared by such officer or other person and signed by such witnesses. It further provides that no person witnessing a search under the above section shall be required to attend the Court as a witness of the search unless specially summoned by it. ' It may further be noticed that subsections (3) and (4) give a right to the occupant of the place to be searched to attend the above search and to obtain a list prepared under subsection (2) thereof. ' It may also be noted that subsection (5), in order to make the above provision effective, provides that if any person refuses to become a witness to the search, he shall be deemed to have committed an offence under section 187 of the Pakistan Penal Code, which entails punishment with simple imprisonment for a term which may extend to one month or with fine, which may extend to Rs,200 or with both. 11. We may now refer to the case-law: (i) Muhammad Khan v. Dost Muhammad and 17 others PLD 1975 SC <07; This was a (.7,:ce under sections 302, 149, 307/149 and 436a 49 read with section 300, P.P.C. In case, it was inter alia contended that since no recovery witness other than one Muhammad Sa.1eh, S.I.P. (P.W.16) was examined for the recovery of fire-arm, the Ordinance of section 103, Cr.F.C. Was not made. While repelling the above contention, it is held that compliance of the above provision, namely, section 103 of Cr.P.C. Is made inasmuch as two inhabitants, namely, Sarwar and Yaqoob Lambardar were made witnesses to the recovery but they were not produced as they were won
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over by the defence as statement on oath of above S.I.P., which remained unchallenged. In the above factual background, it was observed that the provisions of section 103 were mandatory and were designed to guard any possible chicanery and concoction. However, at the same time, it was also observed that the requirement of section 103 was not absolute in the sense that failure to comply with it would make the search illegal. (ii) Rehan v. The State 1976 SCM R 72; in which Mashirs to the recovery of a .38 revolver were two police officers. This Court, while declining petition for leave to appeal, held that the mere fact that both the witnesses to the recovery were police officers was no reasonable ground for disbelieving them particularly when they were never cro ss- . Examined. (iii) Mumtazuddin v. The State PLD 1978 SC 114; ' In this case, this Court, while setting aside conviction under section 3024 P.P.C., held that recovery, though could be proved by evidence of Investigating Officer alone, but the question is always of the facts and the circumstances of the case. It was further held that as the prosecution case in the above report rested on the evidence of solitary eye-witness, whose evidence was full of infirmities, the evidence of the Investigating Officer was not of sufficient probative force to furnish corroboration. (iv) Muhammad and others v. The State PLD 1981 SC 635; ' in which this Court, while dismissing an appeal against the conviction under section 302/34, P.P.C., observed that even if the testimony of Mehnga P.W.9, one of the recovery witnesses, was discarded the evidence of Asghar Ali, Sub-Inspector, P. W.11, was sufficient to prove recoveries, because as held in a number of cases, the testimony of a policeman cannot necessarily be disbelieved merely because he is a policeman. (v) Safdar Abbas and 2 others r. The State PLD 1987 SC 467; ' In the above case, this Court, whilt. Dismissing an appeal by majority judgment against conviction under section 30'4, p.p.c., held that the two Courts below had not rightly discarded the evidence of the police officer, namely, Sardar Ali, S.I., who was one of the attesting witnesses of the recoveries and against whom there was nothing on record to the effect that he had conducted the investigation in a dishonest manner particularly keeping ra view that in his cross-examination, he explained how recoveries were effected and how he tried his best to obtain an independent attesting witness in the case but fated. (vi) Tasleem Khan v. The State PLD 199e SC 1088; ' in which the Shariat Appellant Bench of this Court, while dealing with a case under Prohibition (Enforcement of Hadd) Order, 1979, held that under section 103, Cr.P.C. It is mandatory that at the time of searching a place, at least two respectable inhabitants be included but if the police failed to get two respectable inhabitants in spite of their best efforts and if there was nothing on record to cast doubt on the recovery and the prosecution case and also as to the bona fide of the police, the recovery cannot be discarded. (vii) Zardad v. The State 1991 SCM R 458; ' In the aforesaid case, this Court, while declining leave to appeal against conviction under section 13-E of the West Pakistan Arms Ordinance, 1965, commented upon the evidentiary value of recoveries as under (Shafiur Rahman, J., who authored the judgment):-- "5. From the vers4 outset the evidence was forthcoming on the record that tire live bullets recovered were of a prohibited weapon like Klashnikov. It is no longer a novelty in the area to which the case belongs. At no stage was the slightest doubt expressed about its chaacteristics, identity or particulars. No expert evidence was required to establish its prohibited character. The recovered article itself proved its identity and was capable of proving it.
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6. There were two versions with regard to the recoveries. The one forwarded by the four Police Officers and the other by the petitioner. The two Courts have examined the evidence brought on record and preferred the prosecution evidence over the version of the petitioner. No illegality or infirmity has been found in drawing such conclusions as were drawn. It is not an absolute requirement that in every case witnesses of the public must necessarily be produced. It depends upon the facts of each case. In the case in hand the Police Officers were in the ordinary course of duty looking for the suspects and errant. They happened to come across the petitioner in the circumstances which aroused their suspicion leading to the arrest and recovery. In such a situation one cannot insist that the members of the public must necessarily appear as to witness the recovery. If their testimony is intrinsically sound, without there being anything in the circumstances to arouse doubt, then such testimony is sufficient for the purpose of establishing the facts." (viii) Mirza Shah v. The State 1992 SCM R 1475; ' in which this Court, while maintaining conviction under section 13 of the Arms Ordinance, 1965, has dilated ivon section 103, Cr.P.C. And the case-law as under (Saleem Akhtar, J., who authored the judgment):-- "15. From the aforesaid judgments, it seems clear that being a policeman or an Investigating Officer, is no bar to the acceptance of his testimony. Hi's evidence should he accepted like other prosecution witnesses and if it fulfills all such conditions which are necessary for accepting and believing a witness, it cannot be discarded. But where such witness proves recovery, normal limitations and restrictions have to be observed." (ix) Arshad Zubair v. The State 1993 SCM R 2059; ' In the above case, this Court, while setting aside the conviction and sentence under section 13 of the Arms Ordinance, dealt with section 103, Cr.P.C. As under (Shafiur Rahman, J. Who authored the judgment):-- "22. Section 103, Cr.P.C. Requires that officer or the other person about to make the search should call upon two or more respectable inhabitants of the locality in which the place to be searched is situate to attend and witness the search and may issue an order in writing to them or any of them so to do. Mr. Aamir Ijaz Akbar had failed to perform his statutory duty and had unjustifiably passed on the task to Shaukat Ali, S.H.O. He could not remain content with the reply given by Shaukat Ali for not satisfying that part of the requirement of the law. 23. Not only the legal requirements remain unsatisfied for making the recovery credible, all the witnesses in spite of being Magistrate and being Police Officers were highly inimical and biased on account of their previous involvement in the proceedings and their testimony would not independently satisfy any judicial forum for recording the conviction. It was necessary that Mr. Aamir Ijaz Akbar and Tasneem Ghani should not have participated in the proceedings and should have informed the Deputy Commissioner of their involvement against the appellant to get themselves substituted by more unconcerned officers. In any case, they should have enlisted public witnesses from the locality under the command of their legal authority for satisfying the requirements of law and for ensuring the fairness of the proceedings. ' We are not satisfied with the prosecution case with regard to the recoveries." (x) Zakir Khan and others v. The State 1995 SCM R 1793; ' In the aforesaid case, this Court, while maintaining conviction under section 365-A/34, P.P.C. Observed as under (Mamoon Kazi, J. Who authored the judgment):- "The object behind section 103, Cr.P.C. Appears to be to ensure that independent witnesses are associated with investigation of a case and possibility of concocted evidence is ruled out. However, the section lays down a rule of procedure and not of evidence. Therefore, no hard and fast rule can be laid down in respect of strict compliance with the provisions of section 103, Cr.P.C. As the same would depend upon the circumstances of each case. The present case, being a case of abduction,
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the Investigating Officer was required to act with utmost precision as any undue delay on his part could have defeated his efforts to rescue the abductee. Besides, lately it has been observed that investigating agencies generally find it convenient to call persons to witness a search or an arrest who are conveniently available for the purpose, section 103, Cr.P.C. No doubt, lays down a procedure to be strictly followed by Police Officer who is going to make a search, however, when a deviation is made from this procedure, and the Court is satisfied that strict compliance with the provisions of the said section was not possible, it would then only enquire whether the person in whose presence search was made is a reliable and truthful witness. Further, corroboration of his evidence by other independent evidence would only be required if it has been established that he had made obliging statements before the Court or there was reason to believe that he bore animus against the accused or there were other similar circumstances. No such motive has been attributed to any of the witnesses by the defence. The statement made by the Investigating Officer that it being Fajar time, no other witness from the locality was available to witness the search was also not challenged by the defence. Therefore, insistence upon strict compliance with the terms of section 103, Cr.P.C. Under such circumstances could hardly be justified. The defence having otherwise failed to shake the credibility of the prosecution witnesses, in no case it can be inferred that recovery of incriminating evidence against the accused was doubtful on account of the Mashirs not being from the same locality." (xi) Muhammad Azam v State PLD 1996 SC 67; ' in which this. Court, while setting aside the conviction under section 13-E of the West Pakistan Arms Ordinance, 1965, commented upon the requirements of section 103, Cr.P.C. As under (Sajjad Ali Shah, C.J. Who authored the judgment):-- "18. It is necessary in this case to touch question of…
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