Obaidullah V. The State,

2015 M L D 1105

[Balochistan]

Before Muhammad Kamran Khan Mulakhail, J

OBAIDULLAH ---Appellant

versus

The STATE---Respondent

Criminal Appeal No.78 of 2014, decided on 27th February, 2015.

Pakistan Arms Ordinance (XX of 1965) ---

----S. 13(e) ---Possessing unlicensed arms ---Appreciation of evidence ---Benefit of doubt --- Weapon allegedly recovered from accused, was not sent to Forensic and Ballistic Expert for opinion, so as to determine the nature and caliber of the weapon; and whether the same was automatic, semi- automatic, or in working condition---Place of arrest of accused was said to be thickly populated and commercial area, but no effort was made by the Police to join any person from the public; or there was nothing on record showing that effort was made, and private persons had refused to join as Mashirs of recovery ---Requirement of S.103, Cr.P.C. that two private persons of the locality should be associated as Mashirs to the recovery was mandatory, unless it was shown by the pr osecution that it was not possible to have two Mashirs from the locality ---Contradictions in the statements of prosecution witnesses with regard recovery of weapon, were enough to create doubt in the prosecution's case ---Police Officials, no doubt, as citizen were as good witnesses in the court proceedings as any other person, yet some extra care was needed when they were only eye- witnesses in the case--- In the present case, whole proceedings, right from the arrest of accused, the very investigation and submission of challan, were without any lawful authority ---Course adopted by the prosecution was in clear violation of law, which being an illegality vitiated the trial---Discrepancies in the case, being not curable, accused was entitled to earn benefit of do ubt, not as a matter of grace, but as a matter of right --- Prosecution had failed to prove its case against accused---Kalashnikov allegedly recovered from accused, had neither been sealed at the spot nor sent to Ballistic Expert along with empties for exami nation and report ---Prosecution case being highly doubtful, conviction and sentence passed by Trial Court against accused, were set aside, they were acquitted and released extending them benefit of doubt.

Mushtaq Ahmad v. The State PLD 1996 SC 574 and The State v. Bashir PLD 1997 SC 408 ref.

Shah Rasool for Appellant.

Abdul Sattar Durrani, Deputy Prosecutor General for Respondents.

Date of hearing: 27th February, 2013.

ORDER

MUHAMMAD KAMRAN KHAN MULAKHAIL, J. ---The appellant was tried in case FIR No. 92 of 2012 registered at police station Saddar, District Loralai under Section 13- E of the Arms Ordinance, 1965 ("the Ordinance"), registered on the basis of Marasla sent by the complainant Mujeeb -ur-Rehman, SI, CIA staff Loralai, wherein it w as alleged that the appellant was apprehended with the help of police officials with a Kalashnikov along with a magazine loaded with twenty live bullets, in a raid conducted on spy information at the stated date, time and place for which he failed to produce any valid license. After a full -dressed trial the learned Sessions Judge, Loralai, ("trial court") vide judgment dated 2nd September, 2014 ("impugned judgment") convicted him under Section 13- E of the Ordinance and sentenced to Rigorous Imprisonment for four years with fine of Rs.25,000 in default whereof to further undergo two months' Simple Imprisonment. Benefit of Section 382 (B) was extended to him.

2. I have heard the learned counsel for the appellant and the learned DPG appearing for the State an d have gone through the relevant record of the case with their assistance.

The statement of the investigating officer of the case reveals that the weapon so recovered from the appellant was not sent to Forensic and Ballistic Expert for opinion so as to determine the nature and caliber of the weapon and as to whether it was automatic, semi - automatic or for that matter was it in working condition is worth considering. The place of arrest has been canvassed before me to be thickly populated and commercial a rea but no effort was made by the police to join any person from the public or for that matter nothing has come on record that such effort was made and any private person had refused to join as Mashirs of recovery.

4. The complainant P.W.1 deposed that t he weapon was lying in the lap of the appellant at the time of his arrest but as against that P.W.2 Baitullah constable deposed that the at the time of arrest the Kalashnikov was lying in front of the appellant on grass and a number of people were also sit ting on grass. This contradiction in the statements of the prosecution witnesses was enough to create doubt in the prosecution's case but this aspect of the matter was ignored by the learned trial judge, which has resulted into grave miscarriage of justice .

It may be observed that it has been repeatedly held that the requirement of section 103, Cr.P.C., namely, that two private persons of the locality should be associated as 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, reference is made to the case of Mushtaq Ahmad v. The State PLD 1996 SC 574. In the case in hand, SI/CIA Mujeeb -ur-Rehman has not been able to give any cogent explanation as to why he was unable to associate two Mashirs from the public, despite the fact that the appellant was arrested from a hotel, wherein private persons were easily available. In his cross -examination at page 45 of the paper book he stated that "I received the spy information regarding the presence of the accused but he did not associate any private person with the recovery at the time of arrest of the appellant. The above statement of P.W.1 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 recovery has become doubtful.

5. After perusal of evidence on record, it can safely be concluded that the prosecution has miserably failed to prove its case against the appellant/accused. Even the Kalashnikov allegedly recovered from accused have neither been sealed at spot nor sent to the Ballistic Expert along with empties for examination and report as such prosecution case was highly doubtful. Wisdom behind sealing the weapons at the place of incident is to eliminate the possibility of manipulation of evidence after the recovery of the crime weapons. It has been rightly contended by the learned defence counsel that in this case weapon and empties were not sealed and possibility could not be excluded regarding tampering with said piece of evidence.

No doubt, police officials as citizen are as good witnesses in Court proceedings as any other person yet, some extra care is needed when they are only ey e-witnesses in the case. It is not on account of an inherent defect in their testimony but due to a possibility that an individual levies official, might in mistaken zeal to see that the person he believes to be a culprit, is convicted, might blur line bet ween duty and propriety. It is the settled law that in the exercise of appreciation of evidence it is necessary as prerequisite, to see whether witness in question is not such an overzealous witness. The prosecution was also required to have produced befor e the trial Court the arrival and departure entries (Roznamcha report) for the satisfaction of the Court but no plausible explanation was rendered for such omission.

6. In the instant case the appellant was arrested by the complainant SI/CIA, P.W.1 Mujee b- ur-Rehman being member of CIA staff, with the help of police personnel without any express permission of the Senior Superintendent of Police concerned. The record is also silent that he solicited any such permission of reasons for indulging in the affair s, which are to be undertaken by the police officials. This proposition was resolved by the Hon'ble Supreme Court in the case of The State v Bashir (PLD 1997 SC 408) in the following manner: --

"The CIA 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. "

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 defin ition 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.

Any alleged illegal practice cannot negate an express provision of a statute. It is unfortunate that a Gover nment functionary, who 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.

As regards the question, as to whether the above illegality/irregularity committed by the CIA 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 CIA 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 CIA 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."

The perusal of the above judgme nt shows that in fact the actual possession coupled with the guilty knowledge, constitutes an offence, whereas in the instant case the whole proceedings right from the arrest of the appellant, the very investigation and submission of challan were without a ny lawful authority. The course adopted by the prosecution was in clear violation of law, which being an illegality vitiated the trial. Since the noted discrepancies are not curable, therefore, the appellant is entitled to earn the benefit of doubt not as a matter of grace but as a matter of right.

For my above stated reasons I have come to the conclusion that prosecution case, as to veracity and credibility of prosecution witnesses, is full of doubts, its benefit must be extended to appellant. Consequently, this appeal is allowed. Conviction and sentence dated 2- 9-2014 passed by the trial court is set aside. Appellant Obaidullah son of Adnan Khan is acquitted of the charge in case FIR No.92 of 2012 registered under section 13- E of the Arms Ordinance, 1965 with Police Station Saddar, District Loralai. He shall be released forthwith, if no more required in other custody case.

These are the reasons for the short order of even date announced in open court.

HBT/39/Bal Appeal allowed.