1. ' SYED ZAWWAR HUSSAIN JAFFERY, J.--- In this appeal, the appellant has called in question the judgment, dated 28-8-2002 passed by the learned 1st Additional Sessions Judge/Special Judge for S.T.A., 1975, whereby he was convicted and sentenced in a offence under section 13-D of Arms Ordinance, 1965 to suffer R.I. For three years and to pay fine of Rs,5,000. In default thereof the appellant shall suffer imprisonment for three months more. The trial Court also extended benefit of section 382-B, Cr.P.C.
2. ' The prosecution case in brief as stated in the F.I.R. Being Crime No,30 of 1999 registered at, Police Station- Airport. The appellant was found in possession of K.K. Alongwith a magazine containing 7 live bullets of 7.62 bore, which was found unlicensed, therefore, the F.I.R. Was registered on behalf of the State by S.H.O. Manzoor Ahmed, of Police Station Badeh.
3. ' After due investigation, his case was challaned in the Court of law on 4-9-1999.
4. ' The trial Court framed the charge on 3-3-2000 as Exh.2. The prosecution to establish its case against the appellant, examined P.W./S.I.P. Abdul Rasool as Exh.7, P.W./S.H.O. Manzoor Hussain as Exh.9, P.W./S.I.P. Bashir Ahmad as Exh.8, P.W./S.-I. Dil Jan Magsi as Exh.5, thereafter the prosecution side was closed as Exh. 10 .
5. ' The trial Court recorded the statement of appellant under section 342, Cr.P.C. In which the appellant denied the allegations, but declined to examine himself on oath.
6. ' The trial Court after hearing the learned counsel for the respective parties passed the judgment dated 28-8-2002, which has been impugned in this appeal.
7. ' We have heard Mr. Muhammad Saleem Jessar, learned counsel for the appellant and Mr. Mushtaq Ahmed Kourejo, learned counsel for the State.
8. ' The main contention of Mr. Jessar is that initially the accused/appellant was arrested in Crime No,29 of 1999 in a offence under sections 324, 353, 34, P.P.C. And thereafter appellant/accused was involved in Crime No,30 of 1999, as it was alleged that K.K. Alongwith a magazine containing seven bullets of 7.62 bore were recovered and the weapon was found unlicensed and the complainant Manzoor Ahmed S.H.O. Has acted as Investigating Officer and the complainant in both the cases. It is further alleged by the learned counsel that S.H.O.. Manzoor Hussain Wadho is said to have left the Police Station Badeh in connection with Crime No,16 of 1999 under section 17(3) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979, 392, P.P.C. But the above mentioned crime F.I.R.
9. No,16 of 1999 was not produced in the trial Court nor any daily diary entry for leaving the police station in connection with the investigation of Crime No,16 of 1999 was produced to prove as they have left the police station, therefore, the prosecution has manipulated all these things at police station in order to strengthen the prosecution case by involving the appellant in false cases. It is further pointed out by the learned counsel that the S.H.O. Manzoor Hussain produced the accused before the Incharge S.I.P. Airport, but it has not been mentioned that the investigation of above mentioned cases were transferred by any competent authority to the said Police Officer. It is further argued that all the prosecution witnesses are police officials, but they can be termed as good witnesses as one of the public, but they have failed to associate independent witness for effecting the recovery and at the time of recording of the statement of S.H.O. Manzoor Hussain .Wadho he has failed to produce daily diary of his departure from Police Station Badeh nor any daily diary entry while leaving from Police Station Airport. It is further urged by the learned counsel that the Investigating Officer has violated the provision of section 103, Cr.P.C. As it is admitted that which has come on the record that the concerned Police Officers were aware of search before hand and they proceeded on such information, but they failed to arrange for the private person to act as Mashir. It is further urged by the learned counsel that it has come in the evidence that recovery weapon was not sealed at the spot nor it has been mentioned in the Mashirnama that the said weapon was sealed, but on the contrary the P.W. Examined in this case while deposing in the cross- examination it has been admitted that the weapon was sealed. It has also come on the record that in the evidence of P.W. Manzoor Hussain that "we had sealed the weapon viz. K.K. And the pistol on the spot. Again says that I do not remember". This witness has admitted that the weapons secured from the accused were not sent to the Ballistic Expert. P.W. Zaffar Abbas has admitted in his cross- examination that encounter took place for about 30 minutes and so many people had gathered on the hearing of firing from nearby villages, but did not associate any person to act as Mashir. The learned counsel further submits that in the main case Crime No,29 of 1999 of Police Station Airport under section 324, 353, 34, P.P.C. The appellant and the co-accused Arbab were acquitted as the trial Court while passing judgment dated 28-8-2002 had observed that the case of prosecution appears to be doubtful. Mr. Jessar learned counsel for the appellant has relied upon the case of Manjhi Khan v. State PLD 1996 Kar. 345, Fareed Ahmed Langra v. The State 1998 PCr.LJ 1368, Abdul Sattar v. State PLD 2001 Kar. 181, Loung v. State 1999 PCr.LJ 595, Abdul Sattar v. State 2002 PCr.LJ 51 and Ashiq Ali v. State 2002 PCr.LJ 450.
10. ' Mr. Mushtaq Ahmed Kourejo, Advocate appearing for the State in view of the above defects has conceded to the contentions raised on behalf of the appellant and has not supported the conviction and sentence.
11. ' The record reveals that the K.K. Rifle and seven live bullets were never sealed at all. The Station diary entry which ought to have been produced in the evidence was also not produced. The Police Officer being aware of the place to be searched well in time, but they failed to join or more responsible persons from the locality to witness the recovery and they have failed to do without furnishing any explanation in this behalf. The accused has already been acquitted in the main case and the trial Court has observed that the prosecution has failed to establish the case against the accused. The S.H.O. Being the Investigating Officer and complainant in the other case has disbelieved although the appellant was arrested from a house and the said is surrounded by so many other houses, but no one was joined to act as Mashir of recovery, therefore, the Investigating Officer has violated the. Provisions of section 103, Cr.P.C.
12. ' It is an admitted position in a case reported as Muhammad Azam v. State PLD 1996 SC 67, where it was held that section 103, Cr.P.C. Applies with full force when search is to be made of a place which is in an inhabited locality. As per evidence of the Recovery Officer, it has come in evidence through Recovery Officer that weapon was not dispatched to the Ballistic Expert. The non-production of entry in Roznamcha by the prosecution in Court to prove the movement of police from the police station to the place of recovery of weapon cuts at the root of the prosecution case making the entire episode doubtful and the prosecution case become unbelievable.
13. ' It is well-settled proposition of law that the conviction under section 13-D, Arms Ordinance could not be maintained unless the weapon allegedly recovered was sealed at the spot and the opinion of Forensic/ Ballistic Expert is produced on record to prove that the weapon so recovered was, in fact, functional and the said weapon fell to be a kalashnikov. The non-association of private witnesses is also lacking in this case, as no efforts were made to join the people of public so as to comply with the mandatory provisions of section 103, Cr.P.C. As the place of recovery is surrounded by so many houses as stated by the prosecution witness.
14. ' In view of the foregoing reasons and the case-law cited by the learned counsel for the appellant, the conviction and sentence awarded to the appellant cannot be sustained, therefore, the conviction and sentence was set aside by this Court by a short order, dated 26-9-2003 and the appellant was acquitted, his appeal was allowed and these are the reasons for our short order passed in this appeal.