' SARMAD JALAL OSMANY, J.---This appeal impugns the judgment dated 23-5-2003 passed by the learned V A.S.J., Larkana, in Sessions Case No,273 of 2002 whereby the appellant was convicted for an offence committed under section 13(d) of the Arms Ordinance and sentenced to suffer R.I. For five years. The benefit of section 382(b), Cr.P.C. Was granted to him.
2. The brief facts of the matter per Crime No,19 of 2002 of Police Station, Waggan under section 13(d) of the Arms Ordinance are that on 6-6-2002 at 1700 hours, the appellant/accused Imamuddin Tunio was apprehended by the complainant S.H.O., Police Station, Waggan and his party with an unlicensed K.K. And ammunition. This incident occurred near village Saleh Tunio and was occasioned due to spy information received by the police party. Upon being challenged the appellant disclosed his name and also that the K.K. Was the same with which he had killed the deceased Gull Sher Tunio. The fire-arm was sealed at the spot and Mushirnama prepared whereafter the accused and the property were brought to the police station and the F.I.R. Lodged by the complainant.
3. The challan was submitted before the learned trial Court after completing the usual formalities a charge was framed against the accused to which he pleaded not guilty and claimed his trial.
4. To prove its case. Prosecution examined P.W.1 complainant/S.H.O. Abdullah Saithar at Exh.4, who brought on record the Mashirnama of recovery of K.K. And F.I.R. At Exh.4-A and B respectively; P.W.2 Mashir, HC, Shahban at Exh.5. Thereafter prosecution closed its side vide statement of learned D.D.A. At Exh.6.
5. The accused in his statement recorded under section 342, Cr.P.C. At Exh.7 has denied the prosecution case and claimed himself as innocent. He, however, neither led any evidence in defence nor examined himself on oath in disproof of the charge.
6. After hearing the learned State counsel and the accused, the learned trial Court came to conclusion that the charges against the accused stood proved and accordingly sentenced him as aforementioned.
7. In support of the appeal learned counsel for the appellant has submitted that the complainant, the Investigating Officer and the arresting Officer is the same person and hence in the circumstances of the case the benefit of the doubt should have been given to the accused.
Secondly, per learned counsel, although the arrest was prompted through spy information, no private witnesses were associated with the recovery. So also there is a contradiction in the Mushirnama of arrest and no Roznamcha entry is available as to the time of departure of the police party from the police station. Finally, per learned counsel, no counsel was provided to the accused by the learned trial Court.
8. Mr. Asif Ali Soomro has cited the following case-law in support of the appeal Loung v. The State 1999 PCr.LJ 595; Javed Akhtar v. State 1998 PCr.LJ 1462; Tariq Pervez v. The State 1995 SCM R 1345 and Budho Malghani v. The State 2002 M LD 1293.
9. Mr. Muhammad Ismail Bhutto learned State counsel has opposed the appeal on the basis that police witnesses are as good as any when admittedly no private person is ready to become a witness in criminal cases. Secondly, per learned counsel, the State is only obliged to provide a counsel to the accused in murder cases.
10. I have heard all the learned counsel and my conclusions are as follows:--
11. It would be seen that although strictly speaking section 103 of the Cr.P.C. Is applicable to the search of a dwelling house or other inhabited place, practically it has been applied to the search of a person as well. See State v. Bashir PLD 1997 SC 408. Hence, as the place of arrest was not a deserted one but close to village Saleh Tunio private witnesses could be easily made available in which event their non-association with the recovery is not free from doubt. This conclusion is further supported by the fact that the arrest of the appellant was due to spy information. Of course, where private witnesses are not available or are unwilling to act as such then the police witnesses are as good as any. However, nothing has been stated either in the F.I.R. Or in the Mushirnama of arrest and recovery as to the non-availability of private witnesses. Secondly, it would be seen that the S.H.O., who had become the complainant also assumed the investigation and submitted the challan against the appellant/accused. This is of course quite anomalous and can be considered to have caused prejudice to the accused because all the witnesses in the case were subordinate to him.
12. Next, it would be seen that the KK in question was not sent for any test to ensure that it was in a working condition.
13. Finally, in my opinion, it is quite strange as to why the appellant/accused should be roaming around the country side with an unlicensed weapon and that too with which he had allegedly committed a murder.
14. In view of the foregoing discussion, in my opinion, the prosecution has not been able to establish the guilt of the appellant beyond reasonable doubt. Hence, giving him the benefit of the same, he stands acquitted of the charges against him. This appeal is allowed. He shall be released forthwith if not required in any other case. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.