' SAID MAROOF KHAN, J.---Through this appeal the appellant-Roman Ali alias All has questioned the judgment dated 26-10-2005 of the learned Additional Sessions Judge-IV Bannu whereby the appellant was convicted of the offence punishable under section 13 Arms Ordinance read with section 7 Surrender of Illicit Arms Act and sentenced to undergo rigorous imprisonment for three years and also to pay a fine of Rs,2,000 or in default of payment of fine to suffer simple imprisonment for one month.
2. The facts of the case as stated in the F.I.R. Are that on 9-5-2004 Aqeel Khan the then S.H.O. Police Station Kakki, District Bannu received an information that the appellant Roman Ali alias Ali, who was a proclaimed offender in a case under section 302/34 P.P.C. Vide F.I.R. No,298 dated 18-6-2003 of Police Station Mandan, was present in an uninhabited Kotha in the limits of village Kalinjr-cum- Kakki. On this information he along with Gul Faraz A.S.-I., Ghulam Muhammad A.S.-I. And other police officials raided the said place. The appellant Roman Ali was present there who was over- powered and a Kalashnikov bearing No,1972-332731 along with fitted magazine, a bandolier containing two spare magazines with 50 rounds of 7.62 bore were recovered from him and taken into possession and to this, effect recovery memo was prepared. The appellant was arrested at the spot and the Murasila Exh.PA/1 was drafted and sem to the police station for registration of the case.
3. On the basis of Murasila the case was registered against the appellant vide F.I.R., copy of Exh.PA.
The Investigating Officer prepared the site-plan Ehx.PB. The recovered SMG/rifle was sent to FSL for examination by the Fire-arms Expert who submitted a positive report Exh.PK. On completion of investigation challan was submitted in Court. The appellant was summoned by the learned Additional Sessions Judge-IV, Bannu. On his appearance. The copies of statements and other relevant documents were delivered to him in compliance with the provisions of section 265-C, Cr.P.C. Whereafter the charge was framed and the P.Ws. Were examined. The prosecution, in order to prove the guilt of the appellant, examined P.W.1 Gul Shehzad, MHC; P.W.2 Gul Faraz Khan, S.H.O.
Police Station Basya Khel, P.W.3 Ghulam Muhammad, A.S.-I., P.W.4 Almar Khan, IHC and P.W.5 Aged Khan the then S.H.O. Police Station Kakki and abandoned the remaining P.Ws. Thereafter the appellant was examined under section 342, Cr.P.C. In his statement he stated that he was innocent and falsely involved in the case. However, he did not produce any evidence in defence nor recorded his statement under section 340(2), Cr.P.C. On conclusion of the trial the learned Additional Sessions Judge-IV, Bannu convicted and sentenced the appellant as stated above.
4. Mr. Gauhar Zaman Kundi learned counsel appearing for the appellant contended that before conducting the raid the police officials had neither obtained the search warrant nor associated any witness from the public with the search and recovery proceedings and that this omission on the part of the prosecution vitiated the recovery proceedings. It was further submitted that the provisions of section 7 SIAA were not applicable to the case-in-hand. The learned counsel further submitted that there were material discrepancies in the statements of the P.Ws. Making the case of the prosecution highly doubtful.
5. On the contrary, Mr. Muhammad Sharif Chaudhry learned Deputy Advocate General representing the State contended that the non-compliance of the provisions of section 103, Cr.P.C.
Is not fatal to the prosecution case as the police officials are as good witnesses as any other witness from the public and that as per their evidence the guilt of the appellant was proved beyond reasonable doubt, therefore, the appellant was rightly convicted by the learned trial Court.
6. I have considered the submissions of learned counsel for the parties and perused the entire record of the case. In the present case all the P.Ws. Are police officials. However, the prosecution case mainly hinges upon the testimony of P.W.2 Gul Faraz Khan and P.W.5 Aqeel Khan. The latter is alleged to have made the recovery while the former is stated to have witnessed the search and recovery of Kalashnikov Exh. P-1 , bandolier containing two spare magazines, Exh.P-2 and 50 live rounds of 7.62 bore, Exh.P.3. The recovery was stated to have been made during raid of an alleged abandoned house at about 0430 hours. At the relevant time the appellant was asleep inside the room. Both the P.Ws. Have admitted in their statements that besides the accused three other- persons of the locality were also present at the spot and they were asleep outside the room but they were neither associated with the search and recovery proceedings nor any reason was shown for non-compliance of the provisions of section 103, Cr.P.C.
7. The compliance of the provisions of section 103, Cr.P.C. Is not possible only when no one lives in the place of search except the offender. In the present case, as stated above, besides the appellant three other persons were present at the place where the raid was conducted but in spite of this fact the police officials having raided the house did not bother to fulfil the requirements of section 103, Cr.P.C. They had deliberately avoided to comply with the provisions of section 103, Cr.P.C. There is no evidence on the record suggesting that the private persons present at the spot had expressed their unwillingness to become witnesses of the recovery. In the absence of any explanation to condone the legal requirement of associating two persons of the locality with the recovery proceedings the legality of search and recovery becomes suspicious and unbelievable.
8. For the above reasons this appeal is accepted, the impugned judgment is set aside and the appellant is acquitted of the c charged levelled against him. He shall be released forthwith if not required in any other case.