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Petitioner: STATE through AdvocateGeneral, Sindh VS Respondent: BASHIR and others
Court Name: Supreme Court of Pakistan Judge(s): Saleem Akhter, Saeeduzzaman Siddiqui, Nasir Aslam Zahid, Ajmal Mian Title: STATE through AdvocateGeneral, Sindh vs BASHIR and others Case No.: Criminal Appeal No,325 of 1994 Date of Judgment:1997-02-18 Reported As: PLD 1997 Supreme Court 408 Result: Order accordingly
JUDGMENT
JUDGMENT ' AJMAL MIAN, J.---This is an appeal with the leave of this Court against the judgment dated 31-1- 1994 passed by a Division Bench of the High Court of Sindh in Criminal Appeal No, 154 of 1993, filed by the respondents against their conviction under section 399, P.P.C. By the Special Court, Suppression of Terrorist Activities (S.T.A.), Larkana/Sukkur Division at Shikarpur, and sentence of seven years' R.I. And a fine of Rs,5,000 awarded to each of the respondents and in default of payment of fine, to undergo further R.I. For six months. Respondents Rahim Dad and Bashir had also filed appeals against their convictions under section 13-D of the Arms Ordinance, 1965, where under they were awarded R.I. For four years and a fine of Rs,5,000 each and in default of payment of fine, they were to suffer, further R.I. For six' months, allowing the same by setting aside the above convictions and sentences. 2. The brief facts are that on the night between 12th and 13th September, 1991, SIP Muhammad Ratique, who was In charge of C.I.A. Office, Shikarpur, at 9-30 p.m. Was on night patrol with Inspector Shameem Ahmed of C.I.A. And other staff. They received a spy information that some criminals were hiding at Andho Muqam' at Rustam Road. They reached the above place at about 10-30 p.m., where they noticed some persons in a forest on the northern side of the road. It was the case of the prosecution that on seeing the aforesaid persons on head lights, the police party encircled the forest and gave warning to the said persons in hiding to surrender. After that, they were apprehended. They were all in five, they disclosed their identity. The C.I.A. Party arrested the following five accused persons along with the arms and ammunition:- (i) Bashir with a Klashnikov with its magazine containing 20 live rounds. In addition to that, 80 live cartridges in a bag were also found with him.
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(ii) Shaman with a .12 bore shot gun containing one live cartridge, besides that he was carrying a bag containing 10 live cartridges. .(iii) Sheral with a .12 bore gun loaded with one cartridge. He was also carrying seven cartridges in the right side of his pocket. (iv) Rahimdad with a Klashnikov along with magazine containing 25 live rounds of Klashnikov. (v) Noor Muhammad with a gun loaded with one cartridge. He was also having five live cartridges in his right pocket. 3. All the above accused persons had no licences for the arms and ammunition recovered from their possession. They were arrested and the arms and ammunition were secured under Mashirnamas. It was the case of the prosecution that the above arrested accused persons and the arms and ammunition were taken to the C.I.A. Centre, Shikarpur, where Inspector Shameem Ahmed prepared his report, which was sent to the Police Station New Fojdari, Shikarpur. Thereupon, a case was registered under sections 402 and 399, P.P.C. And under section 13-D of the Arms Ordinance. It seems that after the registration of the above case, the same was investigated by Inspector Shameem Ahmed instead of the S.H.O. Or any other authorised police officer of the Police Station, New Fojdari, Shikarpur. He, after completing the investigation, submitted separate challan against each of the accused persons under sections 409 and 399, P.P.C. And also separate challan for a case under section 13-D of the Arms Ordinance, before the Special Court, Suppression of Terrorist Activities, Larkana, which was transferred to the Special Court, Suppression of Terrorist Activities, Shikarpur. 4. The accused persons pleaded not guilty. In support of the case, the prosecution examined P.Ws. Muhammad Rafique and Shameem Ahmed, Exhs.5 and 6 respectively and closed its side under statement Exh. 7. The accused made their statements under section 342, Cr.P.C. Exhs. 8, 9, 10, 11 and 12. They denied the prosecution case and stated that the prosecution witnesses were interested witnesses being police officials. They denied the recovery of any incriminating article from their possession. The accused persons examined in defence D.W. 1 Muhammad Ramzan son of Lal Muhammad, paternal grandfather of accused Rahimdad and uncle of accused Noor Muhammad; D.W.2 Khair Muhammad, Nekmard of village Kalar; D.W. 3 Rukunuddin, resident of village Orangabad, Taluka Garhi Yasin, District Shikarpur. 5. After the conclusion of the trial, the learned Special Court, Suppression of Terrorist Activities, Larkana, through its judgment dated 6-4-1993, convicted and sentenced the respondents/accused persons in the above terms. They filed Criminal Appeal No, 154 of 1993 in the High Court of Sindh, which was allowed by a Division Bench and the respondents were acquitted on all the counts. Thereupon, the State filed a petition for leave to appeal against the aforesaid acquittal judgment of the High Court, which was granted to consider the contentions noticed in the leave granting order dated 27-6-1994. 6. In support of the above appeal Mr. Suleman Habibullah as well as Mr. Mir Muhammad Sheikh, learned Advocate-General, Sindh, appeared on Court notice have candidly conceded that the High Court judgment in setting aside the conviction under section 399, P.P.C. Is not assailable and, therefore, the above acquittal appeal is not sustainable. 7. However, as regards the conviction under section 13-D of the Arms Ordinance, originally Mr. Suleman Habibullah had conceded the factum that the judgment of the High Court in this regard was also not assailable, but later on he argued that since the recoveries of the arms and ammunition had been proved, the High Court was not justified in setting aside the convictions and sentences under section 13-D of the Arms Ordinance of the respondents/accused Rahimdad and Bashir, from whom Klashnikovs were recovered along with the aforementioned live cartridges.
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' Mr. Mir Muhammad Sheikh, learned Advocate-General, Sindh, also adopted the above line of arguments but candidly conceded that since the above appeal is an acquittal appeal, the view found favour with the learned Judges of the High Court can be one of the views in the matter and, therefore, the acquittal appeal in respect of section 13-D of the Arms Ordinance is also not sustainable. ' Mr. M.M. Aqil, learned counsel for the respondents, had urged as under:-- (i) That since Shameem Ahmed was the complainant in the case as well as the Investigating Officer, the trial vitiated; (ii) that in spite of the fact that Shameem Ahmed had received a spy information at 9-30 p.m., he did not make arrangement for Mashirs from the public of the locality close to the place of the incident; (iii) that since in support of the case under section 13-D of the Arms Ordinance the recovery witnesses were the police personnel, no implicit reliance can be placed on their evidence; (iv) that even the Mashirnama of recovery could not have been relied upon as it was a joint Mashirnama of recovery of the arrest as well as recoveries of the arms and ammunition; (v) that since this Court has seized of the matter in the form of acquittal appeal, no interference can be made unless it is found that the view found favour with the learned Judges of the High Court is perverse or is of the nature which could not have been formed at all on the basis of the material available on record. (vi) that C.I.A. Personnel have no power under section 156(1) of the Code of Criminal Procedure, 1898, hereinafter referred to as Cr.P.C., to investigate any cognizable offence and to submit a challan in respect thereof and, therefore, the entire trial vitiated on account of coram non judice. 8. Adverting to the above first submission of Mr. M.M. Aqil that since Shamim Ahmed was the complainant in the case as well as the Investigating Officer, the trial vitiated, it may be observed that in support of his above 0.Submission he has referred to the case of Aksar Khan v. The State (1995 M LD 1237), in which a learned Single Judge of the Peshawar High Court, while dealing with an appeal of a convict under section 13 of the Explosive Substances Act, 1908, inter alia held that a Police Inspector could not legally assume dual functions as a complainant and also as an Inspector as it had rendered the trial a sheer mockery. We are unable to subscribe to the above broad legal proposition. There is no legal prohibition for a police officer to be a complainant if he is a witness to the commission of an offence and also to be an Investigating Officer so long as it does not, in any way, prejudice the accused person. The Court will have to appraise the evidence produced by the prosecution as a whole and will have to form the opinion after evaluating the same. In the case in hand, since Shameem Ahmad was heading the C.I.A. Party involved and arrested the accused persons and made recoveries of the arms and ammunition, he could have sent the complaint to the Police Station New Fojdari, Shikarpur. The question, as to whether he could investigate as a C.I.A. Officer, is a different issue, had he been covered by the definition of the Station House Officer employed in section 156(1) of the Cr.P.C. Or had he been authorised by the competent Authority, there would not have been any legal infirmity because of the factum that he investigated the case. 9. As regards the above second submission of Mr. M.M. Aqil, it may be observed that it has been repeatedly held that the requirement of section 103, Cr.P.C., namely, that two members of the public of the locality should be Mashirs to the recovery, is mandatory unless it is shown by the prosecution that in the circumstances of a particular case it was not possible to have two Mashirs from the public. In this regard, it will suffice to refer to a recent judgment of this Court in the case of Mushtaq Ahmad v. The State PLD 1996 SC 574. In the case in hand, SIP Muhammad Rafique has not been able to give any cogent explanation as to why he was unable to secure two Mashirs from the public. In his cross-examination at page 48 of the paper book he stated that "I received the spy
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information regalting the presence of the accused I did not take the informer with me when I proceeded to Andho Muqam. There are hotels at Rustam Chowk No person from the vicinity came at the time of arrest and recovery." The above statement of Muhammad Rafique in his cross- examination indicates that no efforts were made by him to secure two Mashirs from the public. In this view of the matter, the recoveries are doubtful. 10. Reverting to the third submission that since in support of the case under section 13-D of the Arms Ordinance the recovery witnesses were the police personnel, no implicit reliance can be placed on their evidence, it may be stated that he has relied upon the following observation from the judgment of this Court in the case of Mushtaq Ahmad v. The State (supra):-- "(v) That likewise there is a marked distinction between a case in which the offence charged with is the recovery of the article itself like recovery of an unlicensed Klashnikov and a case in which the article recovered e.g.a crime weapon is to be used as a corroborative piece of evidence. In the former case if the witnesses to the recovery were police personnel though it was possible to have two Mashirs from the locality where recovery was made, their testimony in the absence of other reliable pieces of evidence would not warrant conviction, whereas in the latter case, if other pieces of evidence on record are free from doubt, the testimony of the police personnel if otherwise free from any legal infirmity may be accepted;" ' The above extract from the above judgment of this Court lends support to Mr., Aqil's above submission. Therefore, on this account also the conviction under section 13-D of the Arms Ordinance cannot be sustained. 11. Referring to the fourth submission of Mr. Aqil that even the Mashirnama of recovery could not have been relied upon as it was a joint Mashirnama of recovery of the arrest as well as recoveries of the arms and ammunition, it may be stated that simpliciter the fact that there is a joint Mashirnama of recoveries of the incriminating articles, may not be fatal if the same identifies each of the recovery with the accused concerned with all relevant particulars but if such a joint Mashirnama is vague and cannot identify with certainty the articles recovered from a particular accused, such a Mashirnama cannot be relied upon. In the instant case, Mashirnama Exh. 5-A is a joint Mashirnama of arrest and recovery of the arms and ammunition. The Klashnikovs were allegedly recovered from accused Rahimdad and Bashir with live cartridges. The Klashnikovs did not bear any number or mark of distinction and, therefore, it is difficult to identify which of the Klashnikov was recovered from which of the accused. If no identity mark was placed by SIP Muhammad Rafique, in that event, the above contention would have force. This aspect has not been dilated upon by the' Courts below and, therefore, it needs no further discussion. 12. Reverting to his above fifth submission as to limited scope of interference by this Court in an acquittal appeal, it may be observed that he has relied upon the case of Fayyaz Akhtar v. The State 1993 SCM R 828 and the case of the State v. Muhammad Sharif and 3 others (1995 SCMR 535). ' In the first case this Court quoted with approval a passage from its earlier judgment in the case of Feroze Khan v. Fateh Khan (1991 SCM R 2220), in which it was observed that the High Court was not justified in setting aside an acquittal judgment merely on the ground that it had different opinion regarding the appreciation of evidence and, therefore, the convict's appeal was allowed. ' Whereas in the second case this Court inter alia highlighted the difference between appraisement of evidence in the appeal against conviction and in the appeal against acquittal and observed that in the former, appraisal of evidence is done strictly and in the latter, the same rigid method of appraisement is not to be applied as there is already a finding of acquittal given by the Court or Courts below after proper analysis of evidence. There cannot be any cavil with the legal proposition that an acquittal appeal stands on a different footing than an appeal against the conviction. In acquittal appeals, the superior Courts generally do not interfere with unless they find that miscarriage of justice has taken place. The factum that
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there can be a contrary view on re-appraisal of the evidence by the Court hearing the acquittal appeal simpliciter would not be sufficient to interfere with the acquittal judgment. In this regard, it may be mentioned that Mr. Mir Muhammad Sheikh, learned Advocate-General Sindh, who appeared on Court notice, has candidly conceded that this is not a fit case where this Court should interfere with an acquittal judgment of the High Court as the view found favour with the learned Judges of the High Court could be one of the views. 13. Adverting to the last submission, namely, that C.I.A. Personnel have no power under section 156(1) of Cr.P.C. To investigate any cognizable offence and to submit a challan in respect thereof and, therefore, the entire trial vitiated on account of coram non judice, it may be observed that under subsection (1) of section 156, Cr.P.C. The power to investigate a cognizable offence under the above provision has been conferred on any office in charge of the Police Station having jurisdiction over the local area within the limits of such Police Station, whereas clause (p) of section 4, Cr.P.C. Defines "officer in charge" of a police station as under:-- "(p) 'officer-in-charge of a police-station' includes, when the officer in charge of the police station is absent from the station house or unable from illness or other cause to perform his duties, the police officer present at the station house who is next in rank to such officer and is above the rank of constable or when the Provincial Government so directs, any other police officer so present:" A perusal of the above provision indicates that only an officer-in-charge of the police station having jurisdiction over the local area within the limits of a police station can investigate a cognizable offence or any other person covered by the definition of the officer-in-charge of a police station given in above clause (p) of section 4, Cr.P.C. Which in the absence of officer in charge of a police station includes officer-in-charge present at the station house who is next to the officer in charge of the police station and is above the rank of the constable or when the Provincial Government so directs, any other police officer so present. ' The above provision does not include C.I.A. Personnel, therefore, they have no power to investigate a cognizable offence. Since this was a question of public importance as it is not uncommon that C.I.A. Personnel have been investigating and submitting challans in respect of cognizable offences, inter alia in Sindh including Karachi, we had passed the following order on 15-2-1997:-- "In this case one of the pleas raised by the defence is that the C.I.A. Personnel had arrested the accused and had investigated the case and submitted challan. According to learned counsel for the defence, this was in violation of section 156(1) of the Criminal Procedure Code which authorises an officer-in-charge of the Police Station of the area concerned. We had issued notice to the learned Advocate-General, Sindh to assist the Court on the above question for today and in response to the above notice Shaikh Mir Muhammad, the learned Advocate-General, Sindh, has appeared and submitted that factually C.I.A. Personnel have no power to register the case and investigate unless authorised by the superior officers in terms of the Criminal Procedure Code. He has, however, contended that the unauthorised registration or investigation of the case would not vitiate the trial if it was held case by a competent Court. The practice that the C.I.A. Has been arresting, investigating and submitting challan without authorisation is prevalent inter alia Karachi, we would issue notice to the I.-G. Police, Sindh, to appear in person on 17-2-1997 to bring the relevant record. If any, authorising C.I.A. Personnel to investigate cases in the absence of the authorisation by the superior officers. A copy of this order may be given to the learned Advocate- General who will contact the I.-G. And D.I.-G. To ensure their appearance. 14. In response to the above order, Mr. Mir Muhammad Sheikh, learned Advocate-General Sindh, along with Mr. Mohib Asad, I.-G. Police, Sindh, Mr. Asad Jehangir, D.I.-G. Police, Karachi Range, and Mr. Allah Bux, A.I.-G. Legal had appeared. Mr. Mir Muhammad Sheikh, learned Advocate-General, Sindh as well as Mr. Mohib Asad, I.-G. Police, Sindh, candidly submitted that there is no law or valid
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order under which the C.I.A. Personnel have been generally authorised to take cognizance of a cognizable offence under section 156(1), Cr .P.0 . 15. However, Mr. Allah Bux,, A.I.-G. Legal has submitted that since for the last several decades the C.I.A. Personnel have been taking cognizance of cognizable offences, investigating the same and submitting the challans in respect thereof, inasmuch as even a Special C.I.A. Court was established at Karachi for trial, the same constitutes according of recognition by the Courts to the C.I.A.'s power to take cognizance of cognizable offences, to investigate and to submit challans to the Court concerned. ' The above submission seems to be fallacious. Any alleged illegal practice cannot negate an express provision of a statute. It is unfortunate that a Government functionary which is entrusted with the enforcement of law should be guilty of breach of a provision of law. It is high time that efforts should be made to establish the supremacy of law instead of relying upon an illegal practice. 16. Mr. Mohib Asad, I.-G. Police, Sindh, also submitted that he would issue necessary order direction to the C.I.A. Not to violate the above provision of the Cr.P.C. In future. He has given the following statement duly signed by him and by the learned Advocate-General, Sindh:-- ' I, Syed Mohib Asad, Inspector-General of Police, Sindh, Karachi, hereby states as under:-- ' That the irregularities in the working of C.I.A. In Sindh as pointed out by the Hon'ble Court in their Lordships' order dated 15-2-1997 shall be rectified through a standing order to bring these in consonance to the provisions of Police Rules, 1934. That strict orders in this behalf shall also be issued." 17. We have incorporated the above undertaking of the I.-G. Police, Sindh as a part of this judgment. Any breach of the same will entail initiation of appropriate legal proceedings against the C.I.A. Personnel to be found guilty of violation of the above undertaking. 18. As regards the question, as to whether the above illegality/irregularity if already committed by the C.I.A. Personnel would vitiate the trial, it may be observed that subsection (2) of section 156, Cr.P.C. Expressly provides that: 'No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate". It is an admitted position that the C.I.A. Is part of the Police Force. It is in fact a special branch carved out from the police force for special purpose. The violation of section 156(1) of the Cr.P.C. May not vitiate trial if no serious prejudice has been caused to the accused person concerned resulting in miscarriage of justice in view of above subsection (2) of section 156, Cr.P.C., but it does not mean that the C.I.A. Personnel should knowingly violate the above provision of the Cr.P.C. On the contrary, they are legally duty bound to ensure the supremacy of law. 19. The upshot of the above discussion is that the above appeal is dismissed. These are the reasons for the short order of even date passed by this Court. The office should send a copy of this judgment to the I.-G. Police, Sindh. (Sd.) AJMAL MIAN, J. ' I agree and have appended my note. (Sd.) SALEEM AKHTAR, J. (Sd.) SAIDUZZAMAN SIDDIQUI, J. ' I agree. However, I have a separate note. (Sd.) NASIR ASLAM ZAHID, J.
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SALEEM AKHTAR, J.---I agree with the judgment of my learned brother Ajmal Mian, J. That C.I.A. Personnel are not authorised to take cognizance of a cognizable offence and investigate a congnizable offence under section 156, Cr.P.C., and the appeal should be dismissed. However, by way of clarification, I would like to add my note, which is in respect of judgment cited in it, namely, Mushtaq Ahmed v. State (PLD 1996 SC 574) in which while reviewing the judgments pronounced on section 103, Cr.P.C., reference has been made to a judgment authored by me reported as Mirza Shah v, State 1992 SCM R 1475. Only para. 15 of this judgment has been quoted and I have observed that this portion is quoted during arguments completely out of context. Before this I had observed as follows:-- "11. It has been contended that evidence of police officer should be accepted like any other prosecution witness. A police officer produced as a witness for the prosecution can be relied upon like other prosecution witnesses but as he is an investigating officer or attached with the investigation staff, the Courts as a matter of prudence and safe administration of justice, scrutinize the evidence of such witnesses with care and caution. Where circumstances permit, the evidence may be accepted to prove arrest or recovery but in order to make it credible and authentic the prosecution must explain the circumstances for noncompliance with the provisions of section 103. Section 103 read with section 164, Cr.P.C. Lays down the mode for recovery and search but as in certain circumstances a deviation may be made, it would be proper to explain the reasons for such deviation. So far the acceptability of the evidence of the police officer is concerned, the general principle is that if there is no animus or mala fides, the investigation has been straight and honest and no substantial defect or infirmity has been pointed out in the evidence or brought through cross-examination, the evidence of such a witness though a policeman, may be accepted. However, in cases of recovery, this principle is accepted subject to furnishing an explanation by the prosecution for non-compliance with section 103." ' Para. 15 quoted by my learned brother reads as follows:-- ".15.…
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