Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: THE STATE VS Respondent: MISHAL KHAN AND 5 OTHERSAccused/
Court Name: Sindh High Court Judge(s): Syed Sajjad Ali Shah Title: THE STATE vs MISHAL KHAN AND 5 OTHERSAccused/ Case No.: Special Case S. K. No, 3 of 1979 Date of Judgment:1980-05-17 Reported As: 1980 P Cr. L J 1176 Result: Order accordingly
JUDGMENT
JUDGMENT ' Six accused persons, namely Misal Khan son of Sade Khan, Aziz Khan son of Agha Khan, Amir Amanullah son of Zardad Khan, Rehmatullah son of Bahadur Khan, Muhammad Sharif son of Jamrood and Kausar Ali son of Shaikh Ali Hussain have been sent up for trial in this Court for offences under sections 5 and 6 of Explosive Substances Act, 1908 read with the provisions of Suppression of Terrorist Activities (Special Courts) Act, 1975 for possessing explosive material in an unlawful manner. The offences with which the accused persons are charged are scheduled offences. The charges have been read-out to the accused persons, who plead not guilty and claim to be tried. The Provincial Government .Of Sind issued necessary consent for trial under section 7 of the Explosive Substances Act, 1908 vide letter dated 10th April 1979. ' Briefly stated prosecution case is that on 25-3-1979 at 9 a.m. Maqbool Hussain Shah, S. H. 0. Police Station, Baldia, Karachi raided the dera of accused Misal Khan consisting of temporary construction with a courtyard and a but inside, situate in Rashidabad within the jurisdiction of Police Station, Baldia in presence of two mashirs namely Gul Hassan son of Rebmatullah and Muhammad Irfan son of Ali Muhammad. In the premises were present Misal Khan alongwith his co- accused mentioned above except Kausar Ali. On search of the premises were found blasting powder contained in a tin and a safety fuse specially made for the purpose of causing explosion and charcoal in the basket and in a tin. Misal Khan present there admitted to be the owner of place and the other four co-accused present in the premises admitted to be the servants of Misal Khan. The S. H. O. Seized these articles, took out samples and put them in the sealed parcels. Mashirnama was prepared which was attested by the mashirsi. Misal Khan and his other four co-accused were brought to the Police Station where F. I. R. Was registered by the S. H.
---
## Page 2
0. Accused persons were taken in custody. ' During further investigation on 27-3-1979 at about 1 a.m. Investigating Officer raided the flat of accused Kausar All situate in a building in Usmania Colony on the pointing out of one Yasin Khan The raid was witnessed by mashirs Muhammad All Siddiqui, Ibrahim Kooli and Zahoor Illahi who resided in the same building. Accused Kausar Ali was present there and in one of the rooms were found 33 cloth bags containing chemicals known as sodium nitrate, citric acid and sulpher. Accused Kausar Ali did not have licence for possessing these chemicals and samples were taken by the S. H. 0. From these chemicals and put into sealed parcels. The material from which the samples were taken was also seized. Mashirnama was prepared at the spot. Accused Kausar Ali was brought to the Police Station and taken in custody. No separate F. I. R. Was prepared for the case against Kausar All and reliance was placed on the F. I. R. Which was registered against Misal Khan and others. The allegation of the prosecution is that accused Kausar All supplied explosive material to Misal Khan. The samples taken by the S, H. 0, from the material seized from both the places, were sent to the laboratory of Explosive Inspector for examination and report. After completing other steps of the Investigation the case was challaned. ' During the trial in the Court after the accused persons pleaded not guilty, prosecution examined mashirs Gul Hassan and Muhammad Irfan against accused Misal Khan and his four other co- accused. Against accused Kausar All prosecution has examined mashirs Zahoor Illahi and Muhammad Ali Siddiqui. Prosecution has also examined Muhammad Riaz Assistant Inspector of Explosives who had submitted his report Exh. 12/A. Lastly prosecution examined Maqbool Hussain Shah, S. H. 0. Who has Investigated the case. He has produced mashirnama of seizure of explosive material from the dera of Misal Khan Exh. 8/A, F. I. R. Registered by him Exh. 13/A, mashirnama of seizure of chemicals from the flat of Kausar All Exh. 9/A and letter of sanction from the Government for prosecution Exh. 13/B. ' Accused Misal Khan and his four co-accused, namely Aziz Khan, Amir Amanullah and Muhammad Sherif in their statements under section 342, Cr. P. C. Have denied prosecution allegations and have claimed that they have been involved in this case falsely due to enmity of police and for political reasons. Accused Misal Khan has stated that at the time of the arrest, he was President of defunct Peoples' Party for Rashidabad area. He has produced his party card as Exh. 15/A. It is further stated by him that he was arrested about 11 days before the execution of the Chairman of their party. He has further alleged enmity with one Shakirullah Head Constable of Baldia Police Station and stated that he was arrested from the hotel of Haji in Rashidabad alongwith his co-accused two days earlier than the date shown by the police and falsely implicated in this case. It is also stated by him that he lives ih a different house in Rashidabad and has produced photostat copy of his Identity Card Exh. 15/B. It is further stated by him that he does the work of breaking and extracting stones from the hills and the other four co-accused arrested with him, are working under him as labourers. The other four co-accused have also denied the allegations of the prosecution and have adopted the explanation given by Misal Khan and have further stated that they were arrested two days earlier than the date shown by the police when they were sitting in the hotel of Haji for collecting payment of wages from Misal Khan. They have also further stated that they do not reside with Misal Khan as Misal Khan resides with his family. ' These five accused persons have examined Bakht Amin Khan and Haji Gul as their defence witnesses. Both have supported the story of Misal Khan and others that they were arrested on 23- 3-1979 from the hotel of Haji in the ' Accused Kausar All in his statement under section 342, Cr. P. C. Has admitted the recovery of 35/36 maunds of different types of chemicals from the flat but has asserted that the material seized is
---
## Page 3
not gun powder as alleged by the police and further no licence is required for keeping such material. He has further stated that he deals in chemicals and has a shop in Jodia Bazar which is named and styled as "Shaikh Chemicals & Company". In the course of his business he supplies chemicals to textile, cosmetics and rubber industries. He purchases this material from the open market from big dealers and sometimes from the auctions held by Customs authorities. He has further stated that the mashirs have deposed against him at the instance of his landlord who is inimical to him and wants him to vacate the flat. It is also stated by him that landlord and S. H. O. Are on friendly terms and have joined hands to falsely implicate him in this case. He has denied any, knowledge about Yasin Khan and has also further stated that he does not know Misal Khan and other co-accused and has never supplied explosive material to Misal Khan. He has also examined one witness, namely Muhammad Hanif in defence who has deposed that he is a businessm an and dealing in chemicals and has further stated that he knows =wed Kausar Ali who is also in the same business and further no licence is rcquired for dealing in chemicals like castic soda bicarbonate and other like material, which is available in the market and also can be purchased from custom auctions. ' The case of accused Kausar Ali is distinguishable from the case of the remaining other co- accused persons in material particulars as such I shall first dealt with his case. It is the case of the prosecution that Kausar Ali was arrested on 27-3-1979, when his flat was raided at 1 a.m. Which is exactly after two days of the raid at the dera of Misal Khan and other co-accused, which took place on 25-3-1979. It is stated by S. H. 0. In his deposition in this Court that he has not registered a separate F. I. R. In respect of Kausar Ali but has relied upon the F. I. R. Which was registered on 25-3-1979 against Misal Khan and his four other co-accused. Obviously for this reason name of accused Kausar Ali does not appear in this F. I. R. And the connecting link is stated to be the statement of Yasin Khan who had pointed out, during the course of investigation, the flat of Kausar Ali, which' was raided at 1 a.m. And explosive material was found there and Kausar All was arrested. It is also the case of prosecution that Kausar Ali used to supply explosive material to Misal Khan. There is absolutely no evidence on the record to substantiate this allegation that accused Kausar Ali supplied explosive material to Misal Khan. Yasin Khan has not been examined by the prosecution hence the alleged linking evidence is not available. Secondly accused Kausar Ali has admitted that some chemicals were recovered from the flat by the police in a raid on the date alleged by the prosecution and since he is a business man dealing with these chemicals, no licence was required for possessing such chemicals. He has given the name and other particulars of his shop and the details of his business and has stated that he purchases the material from the open market and from Customs authorities and supplies it to industries and his business in dealing with such material is legitimate in law. He has prcduced the defence witness who has fully supported him. Kausar Au I has also denied having supplied any material to Misal Khan and prosecution has failed to adduce any evidence to prove the allegation that there was any link between accused Kausar All and Misal Khan or that accused Kausar Ali supplied any such material to Misal Khan. In addition to this Muhammad Riaz, Assistant Inspector of Explosives has deposed in this Court that z from the six sealed parcels he received in this case for examination, he found that the contents of Parcels Nos. 2, 3, 4 and 6 were not explosive substance. Parcel No, 2 contained white crystalline powder (Sodium Nitrate) which is not explosive substance, Parcel No, 3 contained Sulphur which is not explosive substance. Parcel No, 4 contained White Flakes, which is not explosive substance and Parcel No, 6 contained charcoal, which is not explosive substance. From the above-mentioned parcels, which are reported by the expert to be containing material which is not explosive, Parcels Nos. 2, 3 and 4 are stated to be taken from the chemicals seized from the flat of accused Kausar Ali. The Expert has furthe categorically stated in his testimony before this Court during the cross-examination that the contents of Parcels Nos. 2, 3 and
---
## Page 4
4, which ar attributed to accused Kausar All when mixed together cannot cause explosion and when mixed together also cannot form blasting powder. In view of this evidence of the Expert, the case of the prosecution A against accused Kausar Ali has failed and charge cannot be proved against' him. Even other circumstances as stated above indicate that prosecution has failed to produce any evidence to show link between Kausar Ali and Misal Khan and supply of the material by Kausar Ali to Misal Khan. Mr. Muhammad Ibrahim Memon, Addl., A.-G. Who is Incharge of th prosecution has very candidly admitted that the case against accused Kausar Ali is not proved and has not pressed, rightly so, for his conviction. In such circumstances I acquit accused Kausar Ali. ' So far the case against Misal Khan and his four other co-accused is concerned, the evidence produced by the prosecution has been criticised by the learned Advocate appearing on behalf of the accused persons on the ground that it is defective and is not worth-reliance. Particularly the evidence given by mashirs Gul Hassan and Muhammad (Ilan has been assailed on many grounds. Mashir Gul Hassan has supported the prosecution case inasmuch as he has stated that on 25-3- 1979 at about 8-30 a.m. He and his partner Muhammad Irfan were on their way to Rashidabad, when they met police party headed by Maqbool Hussain Shah S. H. O. On his inquiry he was informed that the police party was going to raid a house. After a short while Gul Hassan and his partner Muhammad Irfan reached the dera of Pathans in the same locality where they found police party and were asked by police party to joint the investigation. They saw a canister containing black powder and a basket with four or five plastic bags. The bags were closed and it was stated that they contained white explosive powder. There was a fuse wire. These things were lying near the door of dera and it was stated by S. H. 0. That they were recovered from that dera. The dera belonged to accused Misal Khan who was present there. There were four or five other accused persons who were also present there. Mashirs Gul Hassan correctly pointed out accused Misal Khan to be the same person and for other co- accused stated that he could not identify them to be the same persons arrested from the dera of Misal Khan. This mashir has also made some other gratuitous concessions in favour of the accused persons by stating that mashirnama was not written by police at the dera of Misal Khan, articles were not sealed at the spot in his presence, mashirnarna was already written and attested by the mashirs at the Police Station. He has also denied that articles were recovered in his presence but stated that these articles were already in possession of the police and were lying near the door inside dera of Misal Khan when he reached there. Police sealed these articles in his presence at the Police Station. He has admitted that he saw fuse wire Article No, 1. He saw plastic bags containing black powder Article No, 2 and white powder Article No, 3 to be the same sealed in his presence at the Police Station. In the- cross-examination this witness has stated that his house is 3-4 furlongs away from the Police Station and at the same distance from the dera of Misal Khan. He has denied that he had given evidence in the cases before for police. In his cross-examination it was suggested to him that he had given evidence as witness in the murder case of Din Shah which he has denied. It was argued on behalf of the accused persons that this witness is a stock witness of police and when the Investigating Officer was in the box such suggestion was put to him that mashir Gul Hassan is a stock witness of police which he has denied. He was shown a certified copy of charge-sheet in Criminal Case No, 264/79 entitled State v. Muhammad Saddiq and another, for offence under Article 11 of Huddud Ordinance in which Gul Hassan son of Rehmatullah' has been cited as witness for recovery of the girl. The Investigating Officer denied knowledge about this case and stated that it was not investigated by him. Certified copy of the charge-sheet is brought on the record as Exh. 13/A. The incident in this case as stated in the charge-sheet had taken place on 24- 4.1979. The case relates to Baldia Police Station and the facts narrated in it show that sister of the complainant was abducted and subsequently during the investigation she was recovered from the
---
## Page 5
house of Ibrahim and Siddique and in the list containing the names of the witnesses is included the name of Gul Hassan son of Rehmatullah at Serial No, 6. It is not clear as to what his evidence was in that case. It further appears from this charge-sheet that the F. I. R. Was registered by Syed Maqbool Hussain Shah S. H. O. And was handed over to Sub-Inspector Nazir Ahmed for investigation. There is no other evidence produced to prove that mashir Gul Hassan has been persistently appearing as witness 8 for police in cases and this one solitary instance is not enough to hold that he, is a stock witness of the police. ' 'There is no doubt that this mashir has not wholeheartedly supported the prosecution case and has made many concessions but he has not been declared hostile by the prosecution and his evidence is handy and useful to support many material particulars of the evidence of the Investigating Officer on the question of recovery as is apparent from his evidence highlighted above. ' The other mashir on this point is Muhammad Irfan, who, while deposing in the Court, has given a complete go-by to the prosecution case and stated that on the relevant day he and Gul Hassan were going together to Rashidabad when on the way he stopped to talk to a person who was known to him and in the meantime Gul Hassan went ahead. After sometime he saw Gul Hassan coming back with police party and Misal Khan and three or four other accused persons. He was asked by the police to be a witness in this case and on his inquiry accused Misal Khan present in the Court admitted that explosive material had been seized by police from his possession. Thereafter his thumb impression was obtained by police on some papers on which there was something already written. He saw with the police party two tins and a small bag containing explosive material. The witness further pointed out in the Court Misal Khan and other co-accused to be the same persons, whom he saw in police custody. This witness admitted his thumb-marked on mashirnama Exh. 8/A but denied the contents when read out to him to be the same as were read out to him at the time when his thumb-impression was obtained thereupon. The learned Additional A.-G. Appearing for prosecution sought permission and had this witness declared hostile and cross-examined him. During the cross-examination also this witness stuck to his previous stand and denied that recovery of explosive material was made by the police in his presence from dera of Misal. Khan. ' In this case accused Misal Khan is being tried under section 5 of the Explosive Substances Act for allegedly possessing explosive material not for a lawful object and his co-accused are alleged to have committed offence under section 6 of the said Act for aiding and abetting and being necessary to the commission of offences under this Act by accused Misal Khan. These offences are scheduled offences under the Suppression of Terrorist Activities (Special Courts) Act, 1975. A different procedure has been provided under the said Act for trial of offences which are scheduled. Under section 8 of the said Act there is a special provision with regard to the burden of proof. Section 8 is reproduced as under : "Burden of proof.-Where any person accused of having committed a scheduled offence is found to be in possession of, or to have under his control, any article or thing which is capable of being used for, or in connection with, the commission of such offence, or is apprehended, in circumstances which tend to raise a reasonable suspicion that he has committed such offence, he shall be presumed to have committed the offence unless he can prove that he had not in fact committed the offence." It is very clear from the language used in this section that requiremen is that if the accused is found to be in possession of offending article o is apprehended in circumstances which tend to raise a reasonable suspicion that he has committed such offence, he shall be presumed to have committed the offence unless he can prove that he has not in fact committed the offence. This being so the prosecution has only to prove that the accused persons in the instant case were
---
## Page 6
found to be in possession of the explosive material and then the burden shifts upon them to prove that they have not committed the offence. Prosecution has discharged its duty b producing sufficient evidence to show that accused persons were found to be in possession of explosive material on 25-3-1979 at 1 a.m. The said explosive material was found in dera of Misal Khan and the other co-accused were also present there. This dera is separate from the house of accused Misal Khan and consists of temporary construction with a courtyard and a but inside. It is near Ration Shop No, 3077 in Rashidabad. There is evidence on record of Maqbool Hussain Shah S. H. 0. Who has conducted this raid and made the recovery of the explosive material in presence of mashirs. Mashir Muhammad Irfan has been declared hostile and he has not supported the prosecution case. S. H. 0. Maqbool Hussain Shah has fully supported the prosecution case and has produced this tnashirnarna. He seized the explosive material from the dere of Misal Khan and at that time Misal Khan and his four other co-accused were physically present there and were taken in custody. Evidence of Maqbool Hussain Shah is supported by mashir Gul Hassan inasmuch as Gul Hassan has stated that it was in the dera of Pathan that he found a police party and saw a canister containing black powder in a blasket with 4/5 plastic bags which contained explosive powder. There was also fuse wire. These things were lying near the door of dera which belonged to Misal Khan who was present there. He has also admitted that there were 4-5 accused persons present there. He identified Misal Khan in the Court but refused to identify other co-accused. He admitted his signature on mashirnama and also admitted that co-mashir was Muhammad Irfan who had put his thumb impression. He identified fuse wire and plastic bags in the Court to be the same. Not only this but Muhammad Irfan who has not supported the prosecution case and was declared hostile has admitted that on the relevant day and time he was in the company of Gul Hassan and both were on their way to Rashidabad when he stopped on the way to talk to somebody and Gui. Hassan went ahead and after a short while he saw Gul Hassan alongwith police party and Misal Khan and 3-4 other accused persons. He has further stated that on his inquiry Misal Khan admitted before him that explosive Material was seized by police from his possession. He admits having thumb-marked the mashirmana. He also admits that police party had two tins in a small bag containing explosive material. He identified Misal Khan as well as four accused persons present in the Court in police custody after the alleged incident. These admissions are adequate corroboration to the statement of Investigating Officer that he found Misal Khan and others in dera possessing explosive material, which he seized and arrested them all. I do not find any fault with the evidence of Maqbool Hussain Shah S. H. 0. Who has fully supported the prosecution case and is corroborated in material particulars by the mashirs as stated above. Even otherwise, assuming that the other two mashirs have not fully supported the prosecution case, the evidence of the Investigating Officer alone is sufficient, if it is reliable and free from infirmities. Investigating Officer is as good witness as any other witness. His evidence is to be considered in the light of the fact that now the burden has shifted to accused persons to prove that there was no such seizure or they were not arrested on the date, time and from the place as' stated by the Investigating Officer. Of course the evidence of the Investigating Officer has been assailed on behalf of the accused persons on the ground that there was enmity and also that Misal Khan was arrested because of political reasons but the evidence produced by the defence is neither conclusive nor satisfactory to disprove the prosecution case and satisfy the Court of the innocence of the accused persons. One point raised is that there was enmity between Misal Khan and the police. Misal Khan himself in his statement under section 342, Cr. P. C. Has stated that a quarrel had taken place between him and Shakirullah Head Constable of Baldia Police Station about two months before his arrest. He has not further clarified as to what this quarrel was about. During the cross-examination of Investigating Officer Maqbool Hussain Shah,
---
## Page 7
the alleged dispute with police was vaguely referred and it was suggested to this witness that there was a dispute between Misal Khan and the police over the land which was smoothened after extraction of stones from hilly area and the witness Maqbool Hussain Shah denied such knowledge. It was not suggested to the Investigating Officer that quarrel took place two months before the arrest of Misal Khan and that quarrel was between Misal Khan and Shakirullah Head Constable. No such question was put to Maqbool Hussain Shah whether there was any Head Constable by name Shakirullah at Baldia Police Station. It also does not appear clear as to why there should be a dispute between police and Misal Khan on the land straightened after extraction of stones. The land admittedly is not the personal property of Misal Khan and even if he is allowed by the Government to extract stones it still remain…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.