' Ulfat Khan son of Ghulam Muhammad, appellant, has challenged the judgment dated 18-7-2000, whereby he was convicted under section 13 of the Pakistan Arms Ordinance, 1965 and sentenced to undergo seven years R.I., rendered by the Special Judge, Suppression of Terrorist Activities Court, Multan.
2. F.I.R. No,261 of 1997, Exh.P.D/1 was recorded at Police Station, Saddar Kabirwala, District Khanewal, on 13-8-1997 by Muhammad Iqbal, Head Constable-Muharrar for an offence under section 13 of the Pakistan Arms Ordinance, 1965, on the basis of a written complaint Exh.P.D. Drafted by Manzoor Ahmad, S.-I. P.W.1, on the same day. According to F .1. R . , P . W .3 received a secret information that the appellant was in possession of illicit arms, which he was keeping at his house. On receipt of this information, P.W.3 obtained search warrant Exh.P.C. From the Court of the Assistant Commissioner, Kabirwala and on the same day raided the house of the appellant at about 3-30 p.m. It is further stated that the appellant was present in front of his house, who was apprehended by P.W.3 and his companion police officials. After his arrest the appellant led to the recovery of the following articles:-- ' 8-mm automatic rifle P.1. 7-mm rifle. ' two .30 bore pistols. 40 cartridges.
' 7 bullets of 8-mm rifle. 25 bullets of 7 mm and 19 bullets of 222 rifle.
' After recovery the articles were taken into possession vide memo. Exh.P.B., which was attested by P.W.2, Muhammad Ishaq, S.-I. And one Iftikhar Ahmad, Constable, who was not produced. Charge was framed against the appellant on 20-6-1998. As the appellant denied the charge, the trial commenced.
3. During trial the prosecution produced three witnesses to prove its case. P.W.1, Abdul Hameed, Constable, appeared as Armourer and stated that the rifle (8-mm) P.1 was semi-automatic. He also issued a certificate in this regard, which is Exh.P.A., on 22-8-1997. P.W.2, Muhammad Ishaq. S.-I.
And P.W.3, Manzoor Ahmad, Inspector, stated about the recovery of the illicit weapons from the appellant. P.W.3 also narrated about the investigation of the case.
4. During his statement under section 342, Cr.P.C. The appellant pleaded innocence and stated that he was involved in this case falsely. In the same statement he denied to appear as witness in his own defence as contemplated by section 340(2), Cr.P.C. Hence no defence was adduced by the appellant.
5. I have heard the learned counsel for the parties and gone through the record of the case.
6. It has been noticed that the whole case revolves around P.W.2 and P.W.3, the police officials, who are the recovery witnesses and investigator of the case. According to F.I.R. And the charge it was not a case of recovery of single 8-mm rifle, as according to F.I.R. And recovery documents at least one other rifle, two pistols and other ammunition were also recovered from the house of the appellant. A perusal of the charge also shows that apart from the recovered 8-mm rifle P.1 one other rifle, two pistols and various type of ammunition were recovered during search. But during trial except rifle 8-mm P.1 no other ammunition was produced before the Court. According to P.W.1, he checked only one rifle, which was present in the Court and he had also issued his certificate Exh.P.A., regarding the one rifle alone. A perusal of the judgment also shows that the learned trial Court has convicted the appellant on the basis of rifle 8-mm P.1. The learned trial Court has no where mentioned as to what happened to the remaining ammunition. All the recoveries mentioned in Exh.P.B. Were effected on the same day and at the same hour but during trial only one rifle (8- mm) was produced before the Court. Only two questions arise in my mind that in the circumstances either the remaining ammunition was not recovered or the same has been planted upon some other innocent citizens. The statement of P.W.1 and the certificate issued by him also make it clear that only one rifle was sent to him out of the alleged recovered weapons. It is also apparent from the statement of P.W.1 that apart from rifle 8-mm no other ammunition, allegedly recovered, was produced in the Court during trial.
7. The author of the case and one of the recovery witnesses P.W.3 was posted as Incharge P.O. Cell, C.I.A. Staff at that time and his statement is corroborated by Muhammad Ishaq, S.-I., P.W.2. It is quite natural that when a police officer is a complainant of the case his colleague police official would try his level best to safeguard his interest. After obtaining search warrant P.W.3 alongwith his police officials raided the house of the appellant and none from the public was made witness of the recovery proceedings in utter violation of the provisions of section 103, Cr.P.C. P.W.3 has no where stated that he asked any one from the locality to join the recovery proceedings and he refused. P.W.2 has named' two witnesses, who according to him were asked to join the recovery proceedings but they refused. His statement is not supported by the statement of P.W.3. No one from the public has been mentioned as witness in Exh.P.B./recovery memo.
8. It was held by the Division Bench of this Court in the case of Zaman Iqbal v. The State 1992 M LD 90 that:-- "Requirement of law that recovery of incriminating articles should be made in the presence of two or more respectable inhabitants of the locality would be defeated if recoveries are made only by police officials themselves and no public witness is associated in the process of recovery."
"Court may take into account the evidence of a police officer conclusively if in the background of the attending circumstances it inspires confidence, but the proposition that a police officer is as good witness as any other witness is not of universal application and should not be misinterpreted to mean that no corroboration of his testimony should be sought and the same should be accepted as gospel truth."
9. It is not a case of the prosecution that it was an isolated house in the locality. It has been admitted that there were other houses part from the house of the appellant. It was held by the apex Court in the case of Muhammad Azam v. The State PLD 1996 SC 67 that:-- "Bare perusal of section 103 shows that it applies with full force when search is to be made of place which is in a locality. It can be said that section 103 is relatable to place and not to person. If place is known where search is to be made and that place is situated in a locality which is inhabited by people then it is necessary to join two or more respectable persons from that locality to witness search."
10. The safeguards provided by the Legislature for the safe administration of justice cannot be allowed to be violated by the police officials. It has become a practice of the police officials that they do not associate any witness from the public even when they are available willingly to be a witness. Such tendency is to be curbed.
11. Taking all the aforementioned circumstances into consideration, I have come to the conclusion that the prosecution has failed to prove its case beyond doubt against the appellant, therefore, while extending the benefit of doubt to the appellant, I allow this appeal, set aside the impugned judgment and acquit the appellant of all the charges. He would be released from Jail forthwith, if not required in any other case.