2005 M L D 1093

 

[Lahore]

 

Before Abdul Shakoor Paracha, J

 

ALI KAMAL‑‑‑Appellant

 

Versus

 

THE STATE‑‑‑Respondent

 

Criminal Appeals Nos.511‑T 434‑T and 435‑T of 2004, heard on 18th February, 2005.

 

West Pakistan Arms Ordinance (XX of 1965)‑‑‑

 

‑‑‑S. 13‑‑‑Anti‑Terrorism Act (XXVII of 1997), Ss.7(h) & 25‑‑­ Appreciation of evidence‑‑‑Place of recovery was a thickly populated area, but no Mashir/independent witness was cited as recovery witness‑‑­ Both recovery witnesses were police employees‑‑‑No search warrant was obtained before making‑ the search‑‑‑Clear‑cut violation of S.103, Cr.P.C. was made because place of arrest of accused was stated to be thickly populated area, but no effort was made by police to join any person from general public and nothing had come on record that police read associated inmates of house where dacoity was to be committed and that they had refused to join as Mashir of recovery‑‑‑Benefit of doubt was given to both accused who were acquitted of the charge and were released forthwith.

 

Nazar Muhammad v. The State 1996 PCr. LJ 1410; Abdul Majeeb v. The State 1998 PCr.LJ 1381 and Mukhtar Ahmed alias Muhammad Mukhtar v. The State 1999 PCr.LJ 222 ref.

 

Sh. Muhammad Suleman for Appellant.

 

Nadeem Akhtar Bhatti for the State.

 

Date of hearing: 18th February, 2005.

 

JUDGMENT

 

This judgment shall dispose of Criminal Appeal No.511‑T of 2004, filed by Ali Kamal, appellant, Criminal Appeal No.434 and Criminal Appeal No.435 of 2004, filed by Hamdard Khan, appellant as they arise out of the F.I.R.

 

  1. Appellant Ali Kamal in Criminal Appeal No.511‑T of 2004 filed under section 25 of the Anti‑Terrorism Act, 1997 impugnes the judgment dated 27‑9‑2004 passed by the Special Judge Anti‑Terrorism Court‑II, Rawalpindi and Islamabad Capital Territory, whereby, he was found guilty under sections 13/20/65(A.O.). He was convicted and sentenced to undergo one year’s R.I. for having in possession an unlicensed pistol P. I and 7 rounds Exh.P2/1‑7. He was given the benefit of section 382‑B, Cr.P.C.

 

  1. Hamdard Khan appellant in Criminal Appeal No.434‑T of 2004 filed under section 25 of the Anti‑Terrorism Act, 1997 read with section 410, Cr.P.C. impugnes the judgment dated 27‑9‑2004 passed by the Special Judge Anti‑Terrorism Court‑II, Rawalpindi and Islamabad Capital Territory, whereby, he was found guilty under section 13/20/65(A.O.). He was convicted and sentenced to undergo R.I. for three years and to pay fine of Rs.20,000. In default of payment of fine to undergo further R.I. for six months. He was given the benefit of section 382‑B, Cr.P.C.

 

  1. Hamdard Khan appellant in Criminal Appeal No.435/T of 2004 filed under section 25 of the Anti‑Terrorism Act, 1997 read with section 410, Cr.P.C. also impugnes the judgment dated 27‑9‑2004 passed by the Special Judge Anti‑Terrorism Court‑II, Rawalpindi and Islamabad Capital Territory, whereby, he was found guilty under section 7(h) ATA, 1997. He was convicted and sentenced to undergo R.I. for one year and to pay fine Rs.10,000. In default of payment of fine to undergo further R.I. for three months. Benefit of section 382‑B was also awarded.

 

  1. Briefly the facts of the case as narrated in the F.I.R. (Exh.PA‑1) are that on 21‑4‑2004 the complainant Abdul Razzaq P.W.2 got a secret information that near the Railway Station Golra Sharif five persons are preparing for committing the decoity in a rental room and they have got arms and ammunition upon which a raiding party headed by the .complainant was formulated. Raid was conducted. The accused persons started firing at the Police but no fire hit the Police. Thereafter, the accused were arrested and their names were disclosed as Hamdard Khan armed with Kalashnikov, Ali Kamal armed with .30 bore pistol, Zubair Khan armed with .30 bore pistol, Ishfaq and Shaukat Ali were found empty‑handed. Thus the F.I.R. was registered against them.

 

  1. After the investigation the challan was submitted in Court. The barge was ‘framed against the appellants for which they pleaded not guilty. To prove the case against the appellants the prosecution examined Habibullah HC (P.W.1) and Abdul Razaq, Inspector (P.W.2). While the report of FSL was tendered in evidence as Exh.P.K. The appellant Ali Kamal in his statement under section 340(2), Cr.P.C. stated that no such recovery took place from him and he has been falsely implicated. After hearing the learned counsel for the parties the appellants were convicted for the offence, hence, the aforesaid appeals.

 

  1. The learned counsel for the appellants contends that except both the witnesses who were the police officials no independent witnesses/Musheer has been included from the place of occurrence which is a thickly populated area to prove the factum of recovery. The alleged recovery of empties was effected from the house but no witness of the locality was present at the time of recovery. The learned counsel for the appellants has made reliance on the following case‑law, i.e. Nazar Muhammad v. The State (1996 PCr.LJ 1410), Abdul Majeeb v. The State (1998 PCr.LJ 1381) and Mukhtar Ahmed alias Muhammad Mukhtar v. The State (1999 PCr.LJ 222).

 

  1. The learned counsel for the State has argued that the appellants were arrested at the spot and the ammunition was recovered from them. Though the recovery witnesses are the Police officers but they are as good’ witnesses as the other public witnesses, therefore, there is no reason to disbelive their testimony.

 

  1. I have heard the arguments of the learned counsel for the parties and perused the record with their assistance.

 

  1. Admittedly the place of recovery is a thickly populated area but no Musheer/independent witness was cited as recovery witness. Both the recovery witnesses are the police employees. No search warrant was obtained before making the search. There was a clear‑cut violation of Section 103 Cr.P.C. because the place of arrest of the accused was stated to be the thickly populated area but no effect was made by the Police to join any person from the general public and nothing had come on the record that the police had associated the inmates of the house where the dacoity was to be committed and that they had refused to join as Musheer of the recovery.

 

In this view of the matter, I give the benefit of doubt to both the appellants. Resultantly, their appeals are accepted and they are acquitted of the charge. They shall be released forth‑with, if not required to be detained in connection with any other case.

 

H.B.T./A‑424/L                                                                                   Appeals accepted.