' This appeal is directed against the conviction of the appellant under section 13-D of Arms Ordinance by Sessions Judge, Sanghar, on 30-7-1975, whereby he was sentenced to two years' R. I.
' The appellant was arrested by P. W. 1 Muhammad Mureed S. I. Police on 11-9-1973 at about 1 a.m. At Lundo Minor, where the police party had gone under orders of S. H.
0. To arrest the present appellant, who was required in crime No, 102/73 under section 392/397, P. P.
C. Without any encounter the present appellant Ali Gul was arrested by the Police and they secured double-barrel gun No, 24820 which the appellant was holding in his right hand and secured two live cartridges from the front pocket of his shirt.. He had no license for the gun, mashirnama was prepared, which is Exh.
6. The mashirs were A. S. I. Ghulam Hyder and Police Constable All Baksh. The F. I. R. Was lodged on 11-9-1973 at 0.430 hours by S. I. Muhammad Mureed P. W. 1 at Police Station, Shandadpur. The prosecution examined P. W. 1 Muhammad Mureed S. I., Police and P. W. 2 Ghulam Hyder A. S. I., who was the mashir of the recovely of gun and cartridges.
' Mr. Syed Nasiruddin has argued that in view of the fact that Muhammad Mureed has admitted that accused had been challenged as mentioned above in several cases and some of them were disposed of and some of them are pending, an animosity between the appellant and Police is established and therefore, it was necessary that independent witnesses should have witnessed the recoveries.
' I do not, however, agree with the submission of animosity between the appellant and Police is established as mere appearing in two cases against one particular person does not necessarily lead to the result that there is enmity. No questions have been put by the accused to the Police Officers suggesting enmity between him and the Police, and in his statement under section 342, Cr.
P. C. The appellant has alleged enmity between himself and Saleh Zardari, but no question of that type was put in cross-examination. The appellant in his statement in the lower Court under section 342, Cr. P. C. Has admitted that he was arrested at Lundo Minor, therefore, the incident of arrest has been admitted. The only question is whether, there was recovery of gun and cartridges from the appellant.
' Mr. Manzoor Hussain argues that the Police Officer's evidence is as good evidence as that of any other person and in absence of enmity his deposition should be relied upon. I agree that it can be so but there is one difficulty that I see in this case, that is, that in spite of the case of the Police that it was a case of Nakabandi carried at night I find that the Police had advance information, and therefore, the S. H.
0. Had ordered the S. I. Muhammad Mureed to go and arrest this appellant. Therefore, since, the Police had started from the Police Station with the definite purpose of arresting Ali Gul in the night on the basis of some information that they had the order they had received from their supervisor. It was incumbent upon the Police to take with them two respectable persons of the locality to witness the search or arrest as required under section 103, Cr. P. C. The failure to follow the provision of section 103, Cr. P. C. In spite of advance information vitiates the Nakabandi. I am of the view that the recoveries are not in accordance with the law as they are not witnessed by two respectable inhabitants of the locality and provisions of section 103, Cr. P. C. Have been breached. I would have no hesitations in upholding the conviction and arrest if they had been the result of a general Nakabandi, where the appellant might have been incidentally arrested in suspicious circumstances, and thereafter, recoveries had been made from him. Bu since in this case it was a case of the Police going with the only purpose of arresting this appellant with advance spy information, therefore, th presence of respectable inhabitants was a must and that not having been done the recoveries are vitiated and the conviction, is therefore, set aside. The bail bond if any of the appellant in this case would be cancelled.