2012 P Cr. L J 226
[Balochistan]
Before Muhammad Hashim Khan Kakar, J
FIDA HUSSAIN---Appellant
Versus
THE STATE---Respondent
Criminal Appeal No. 38 of 2011, decided on 16th November, 2011.
West Pakistan Arms Ordinance (XX of 1965) ---
----S. 13(e) ---Possessing unlicensed arms ---Appreciation of evidence ---Accused had been
acquitted in the main case of 'Haraabah', and present case was an off -shoot of the main case ---
Accused, in circumstances, was entitled to be acquitted in the present case ---Complainant
himself was an Investigating Officer in both the cases and the Trial Court had disbelieved his
evidence in the cases, but despite that accused was convicted and sentenced on the basis of same evidence ---F.I.R. figured the allegation of enc ounter with Police party and all the matters were
investigated by Naib Tehsildar who lodged the F.I.R., prepared the recovery memos, site plan and recorded the statements of the witnesses, which was not warranted under the law ---
Prosecution witnesses had s tated that many people gathered at the site, but Investigating Officer
did not make efforts to cite anyone of them as witness in order to testify the recovery of arms and ammunitions from the possession of accused---Mandatory provisions of S.103, Cr.P.C., in circumstances, had been violated, as no explanation was available on the record as to why the
witnesses from the public were not associated with alleged recovery ---In absence of such
evidence, including the report of Forensic Science Laboratory, convict ion and sentence awarded
to accused by the Trial Court, was not justified--- Impugned judgment of the Trial Court,
convicting and sentencing accused, was set aside, in circumstances.
Ch. Muhammad Yaqoob v The State 1992 SCMR 1983 rel
Abdul Ghani Mashwa ni for Appellant
Abdul Kareem Malghani, A.P.- G for the State
Date of hearing: 14th November, 2011.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. ---Appellant, Fida Hussain son of Muhammad
Umar, has assailed the judgment dated 30th June, 2011, passed by the Sessions Judge, Kalat at
Mastung, whereby he was convicted and sentenced under section 13(e) of the Pakistan Arms Ordinance, 1965 to suffer three ( 3) years' R.I. with a fine of Rs.20,000 (rupees twenty thousand
only) in default whereof to further undergo SI for six (6) months, with the benefit of section 382-B of the Cr.P.C.
2. On 1st January, 2011, complainant, Naib Tehsildar, Ghulam Haider, lodge d an F.I.R. No.3 of
2011, under section 13(e) of the Pakistan Arms Ordinance, 1965 against the appellant at Levies
Thana, Khad Koocha, with the allegations that in pursuance of F.I.R. No.1 of 2011, under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, he, along with the other police officials reached the area of Guro, on the pointation of foot -tracker, when
they reached near a house, suddenly, armed persons opened fires upon levies party, which was retaliated. When th e firing was stopped, the appellant was arrested and during the course of his
personal search, an unlicensed Kalashnikov along with a magazine and three live cartridges, was recovered from his possession.
3. The prosecution, to establish its case against accused Fida Hussain, examined three witnesses.
P.W.1 Abdullah, Hawaldar Levies, produced recovery memos Exh.P/1- A, Exh.P/1- B and
Articles/P -2 and 3, P.W.2 Taj Muhammad, Levies Sepoy, produced seizure memo Exh.P/2- A
and P.W.3 Ghulam Haider, Naib Tehsildar is Investigating Officer of the case, who produced the
challan Exh.P/3- C. Then the prosecution closed its side.
4. The accused was examined under section 342 of the Cr.P.C., wherein he once again denied the
allegations, however, he neither recorded his statement on oath, nor produced any evidence in defence. After finding the case against the appellant to have been proved beyond
reasonable doubt, the trial Court convicted and sentenced him, as mentioned and detailed above,
hence the present appeal before this Court.
5. I have heard Mr. Abdul Ghani Mushwani, learned counsel for the appellant and Mr. Abdul
Kareem Malghani, Assistant Prosecutor -General.
6. The main contention of Mr. Abdul Ghani Mushwani, Advocate, is that initial ly the accused
was arrested in Crime No.1 of 2011, under section 17(3) of the Offences Against Property
(Enforcement of Hudood) Ordinance, 1979 and Crime No.2 of 2011, under sections 324 and 353
of the P.P.C., registered at Levies Thana Khad Koocha, in whi ch he was acquitted of the charge.
He further argued that, admittedly, the village is a thickly -populated area, but none of the private
persons was associated to act as mushir. He next contended that the complainant Ghulam Haider is not only the complainant in the instant case, but has also conducted the investigation, which has caused serious prejudice to the appellant, especially when there was an allegation of encounter. He argued that the accused has already been acquitted in the main cases and this is an off-shoot of Crime Nos.1 and 2 of 2011.
7. On the contrary, learned Assistant Prosecutor -General, supported the prosecution case and
contended that the trial Court, after proper appraisal of evidence, rightly found the appellant,
guilty of the offence .
8. After having gone through the prosecution case, I have arrived at a confident conclusion that
the prosecution, indeed, had failed to prove its case against the appellant beyond reasonable doubts. In this context, I noticed that the appellant has bee n acquitted in Crimes No.1 of 2011
and 2 of 2011 and this is an off -shoot of the above cited crimes, as such, the appellant is entitled
to be acquitted in the instant case, which is an off -shoot of the said cases. I have also noticed that
Ghulam Haider was not only complainant, but was also Investigating Officer in the said cases
and the trial Court had disbelieved his evidence in both the cases, but, surprisingly, convicted
and sentenced the appellant in the instant case on the basis of same evidence.
9. Mr. Abdul Ghani Mushwani, Advocate, submitted that the F.I.R. figured the allegations of
encounter with police party and all the matters were investigated by Naib Tehsildar, Ghulam
Haider, who lodged the F.I.Rs., prepared the recovery memos, site plan and recorded the
statements of witnesses, which is not warranted under the law. There is force in the said contention of learned counsel, as in the case of allegation of police encounter, the case should not be investigated by an official, who took part in the encounter and in such state of affairs, investigation of the case should be carried out by an independent agency in order to save the citizens from unfairness/injustice of police. By holding this view, I am fortified from the case of "Ch. Muhammad Yaqoob v. The State" reported in 1992 SCMR 1983, relevant portion whereof
is as under: --
"14. It is in the evidence that immediately after the incident, police officials who took part in the
encounter, as is alleged by defence were rewarded and promoted even b efore the final order was
passed under section 173, Cr.P.C. by the Magistrate. This state of affairs shows that if police
claims encounter then the matter is not subjected to scrutiny by any Court of law but is investigated in a formal manner by the police themselves and order is obtained under section
173, Cr.P.C. for cancellation of the case. There is no warrant of law or legal justification for police encounter. It is apparent that undue advantage is taken of the situation for the reason that no F.I.Rs. are filed or allowed to be filed by the relatives of the deceased against police officers. Under such circumstances, police feels absolutely secure that of their action which is proclaimed as police encounter, no judicial scrutiny can be made by a Court of law, hence immediately after
the incident, such police officials who took part in the killing are rewarded and promoted, which provides as a seal of approval and legal sanctity on the killing even if it is calculated, pre -
planned and intentionally done. This gives the police a free licence to kill any person
they want and then manipulate a story of encounter and no further questions can be asked by any Court. It is a sorry state of law and it is high time that Legislature should amend
the law in such a way as to make police answerable before a Court of law to satisfy the Court that encounter was genuine and attack was opened on police party by aggressors first, who have been killed.
15. Under the law, after registration, if plea of private defence is taken, then such plea is to be
considered by the Sessions Court or its equivalent in juxtaposition with prosecution case and
then it is left open to the trial Court to accept that plea or not. As against that if plea is taken of
encounter with police, then the Court does not get an opportunity to consider the plea in the same manner and at par with case between private persons in which F.I.R. is registered, for
reasons already stated above. Of course, remedy of f iling direct complaint in the Court is
available but that is not pressed into service for the reasons that relatives of deceased in such
circumstances feel afraid of reprisal or revenge of police and their pressure tactics. In such circumstanc es, it would be better to amend the law in such a way that such cases of police
encounters be allowed to be investigated by independent agencies and presented in the Court of
law at the level of Sessions Court for examination and consideration of such plea strictly
according to law."
10. Moreover, the mandatory provisions of section 103 of the Cr.P.C. have also been violated,
particularly when according to the own showing of the prosecution witnesses, many people gathered at the site, but the Investigating Officer did not bother to or make efforts to cite anyone of them as witness in order to testify the recovery of arms and ammunitions from the possession of the appellant. On the other hand, the perusal of the record reveals that the complainant and mushi rs have given stereotype evidence in all the cases. Even the F.I.Rs. in all three cases being
Crime No.1 of 2011, Crime No.2 of 2011 and Crime No.3 of 2011 and mushir names of recovery in all three cases are stereotype and identical. The requirements of section 103 of the Cr.P.C, which is not a decoration piece, could only be ignored in such a situation, if the prosecution furnished a satisfactory explanation for non- association of the private witnesses from the public
with the alleged recovery. In the case in hand, no such explanation is available on the record as
to why the witnesses from the public were not associated with the alleged recovery. Therefore, in the absence of above evidence, including the report of Forensic Science Laboratory, the conviction and sentence awarded to the appellant by the trial Court is not justifiable.
The cumulative effect of all above factors resulted into recording of acquittal of the appellant, which I had done by setting aside the impugned judgment and the conviction vide short order dated 13th November, 2011 and these are the reasons thereof.
H.B.T./153/Q Appeal allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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