' Yaqub petitioner was convicted under section 13 of the Arms Ordinance 1965 by the Sub-Divisional Magistrate, Vehari on 11-1-67 and was sentenced to one year R. I. He filed an appeal against the order of his conviction but the same was dismissed by the Additional Sessions Judge, Multan on 16- 6-67. He filed the present revision petition challenging his conviction on the ground that the alleged recovery of pistol from his person was not legally proved as one of the witnesses in whose presence the alleged recovery was made had denied the factum of recovery, while the other two recovery witnesses examined by the prosecu tion were not the residents of the petitioner's Chak.
2. Briefly stated the facts of the case are that on 11-2-66 Abdul Khaliq, A.S.I, P. S., Vehari conducted a raid on the Bhaini of Waryam and Muhammad son of Sultan residents of Chak No 42/WB. Both Waryam and Muhammad were not present in their Kotha but the petitioner was present there.
When he came out of the house he was searched by Abdul Khaliq A S.I. Who recovered a country made .32 bore pistol from him which he took into possession vide recovery memo Exh. PA in the presence of Muhammad Siddique son of Wali Muhammad Khan, Khushi Muhammad son of Wali Muhammad Khan, Khushi Muhammad son of Murad Ali Khan residents of Chak 72/WB and Ghulam Muhammad Chowkidar of Chak 42/WB. As the petitioner could not produce any licence for the pistol, a case under section 13 of the Arms Ordinance, 1965 was registered against him at P. S Vehari on Rukka Exh. PC sent by Adbul Khaliq A S. I. After completing the investigation the petitioner was challaned and sent up for trial.
3. The prosecution examined four witnesses in support of its case, Ghulam Muhammad Chowkidar P W. 1 did not support the prosecution case. Muhammad Siddiq p W. 2 and Khushi Muhammad P.W.
3, however, deposed that pistol P. 1 was recovered from the petitioner when his person was searched in their presence. The pistol was taken into possession by Abdul Khaliq A.S.I vide memo.
Exh. PA. Abdul Khaliq A.S.I. While appearing as PW 4 also deposed with regard to the recovery of pistol from the petitioner.
4. The petitioner denied the re,covery of pistol P. 1 from him when his statement under section 342, Cr.'P. C. Was recorded. He stated that be was arrested by the police from Vehari. Waryam D.W. 1 real brother of the petitioner stated that he had submitted a petition against Abdul Khaliq A.S.I to the higher authorities and it was on account of the said petition that he has concocted the present case against the petitioner.
' Learned counsel for the petitioner has contended that the prosecution had failed to prove its case against the petitioner because the only witness who was a resident of the petitioner's Chak and who was allegedly present when the unlicensed pistol P. 1 was allegedly recovered from the petitioner, did not support the prosecution. His statement remained unchallenged as he was not cross-examined by the Prosecuting Sub-Inspector. Hence prosecution was bound by his statement. Muhammad Siddiq P.W. 2 and Khushi Muhammad P.W. 3 who deposed against the petitioner were residents of Chak 72/WB, which was at a distance of miles from Chak 42/WB where the house of the petitioner's brother was situated. Abdul Khaliq ASI who conducted the raid on the house of the petitioner's brother did not comply with the provisions of section 103, Cr P. C. As the search was conducted by him in the presence of persons, who did not belong to the place where the search was conducted.
6. Learned counsel for the State, on the other hand, has contended that recovery of the unlicensed pistol was duly proved by Muhammad Siddiq P.W. 2, Khushi Muhammad P.W. 3 and Abdul Khaliq P.W. 4 and that the mere fact that P.W. 2 and P.W. 3 did not belong to Chak 42/WBwas not sufficient to discard their testimonyAccording to the learned counsel, the provisions of section 103, Cr. P C.
Were not applicable to the present case as the police officer had not searched any place. He had recovered pistol P 1 after searching the petitioner. As regards the testimony of Ghulam Muhammad P.W. I it was stated by the learned counsel for the State that he had been won over by the petitioner and as such had intentionally suppressed the truth. The learned trial Magistrate, therefore, was justified in ignoring his statement.
7. I have considered the arguments of the parties counsel. While I agree that the provisions of section 103, Cr. P. C. Are not attracted when a place is not searched as was held in Abdul Rashid v.
State (I), but the fact that the police officer had brought two persons from a different Chak with him for carrying out raid on the Bhaini of the petitioner and his brother and the unlicensed pistol was recovered by him from the petitioner in the presence of the said persons clearly showed that the police officer did not consider it necessary to obtain the assistance of respectables of the Chak in which the place to be searched was situated, In the aforementioned case where the police officer had recovered an unlicensed revolver from the possession of the accused when he was searched in the presence of two witnesses, who were accompanying the police officer, it was observed that although the provisions of section 103, Cr. P, C. Regarding the presence of residents of the locality where
(1) 1975 P Cr, L J 565 ' the accused was searched, were not contravened, the purpose of section 103, Cr. P. C. Was entirely violated because the police officer had brought persons with him prior to the seizure of the unlicensed revolver. In the present case also Abdul Khaliq A.S.I. Had brought Muhammad Siddiq P.W. 2 and Khushi Muhammad P.W. 3 with him. After raiding the Bhaini of the petitioner's brother he had searched the person of the petitioner and allegedly recovered pistol from him in the presence of the aforementioned persons. The purpose of section 103, Cr. P. C. Was violated as he had failed to call any person from Chak 42/WB when he conducted the raid. The only person who belonged to that Chak and was allegedly present at the time of search was Ghulam Muhammad PW I but he has completely refuted the prosecution case. His deposition cannot be ignored merely on the contention that he had been won over by the petitioner because there is nothing on record to support that contention. The prosecution was not bound to examine Ghulam Muhammad if he had been won over by the petitioner and in case the fact of his having been won over by the petitioner came to light only when his statement was recorded at the trial, the prosecution could have requested the learned trial Magistrate to declare him hostile and allow the Prosecuting Sub- Inspector to put questions to him in cross-examination. Since he was not declared hostile nor he was cross-examined by the Prosecuting Sub-Inspector and his statement remained unchallenged, it cannot be left out of consideration. It forms part of the prosecution evidence and it must be considered as such His failure to support the prosecution case is a significant fact which goes in petitioner's favor and its benefit must go to him.
8. For the foregoing reasons, I am of the view that the prosecution has failed to prove its case beyond reasonable doubt against the petitioner. His conviction under section 13 of the Arms Ordinance, 1965 is therefore, not proper. I allow this revision petition and set aside the order! Of conviction and sentence passed against the petitioner by the Courts below and acquit him. He is also relieved of the bail bond executed by him