SYED SAJJAD HASSAN SHAH, J.-Through this criminal revision under section 435 read with 439, Cr.P.C, the petitioner has challenged the judgment and order passed by learned Additional Sessions Judge/Izafi Zilla Qazi, Samarbagh dated 19-1-2011 whereby the appeal of the petitioner against the judgment dated 13-12-2010 passed by learned Judicial Magistrate/Illaqa Qazi, Faujdari Munda Samarbagh was dismissed and conviction and sentence of the petitioner was maintained.
2. Briefly stated facts leading to the instant criminal revision are that vide F.I.R. No.449 dated 9-8- 2009 the case was registered under section 13 Arms Ordinance at Police Station Munda against the petitioner that on 9-8-2009 at 0515 hours Muhammad Zahid Khan. S.H.O. Along with other police contingent raided the house of the petitioner-accused as he was absconding in case F.I.R. No.116 dated 8-2-2004 registered under sections 302/337-F(i)/34. P.P.0 .. He was arrested and recovery of Kalashnikov Russian made along with three chargers, 90 cartridges of 7.62 bore, bandolier and one rifle, 42 cartridges of .303 bore was effected.
3. The learned trial Court conducted the trial and after conclusion of the same, convicted the petitioner-accused under section 13 Arms Ordinance and sentenced him to three years' imprisonment and also extended benefit of section 382-B, Cr.P.C. To him.
4. Feeling aggrieved from the impugned judgment of conviction and sentence, the petitioner- accused filed appeal which was also dismissed by the learned appellate Court by maintaining the conviction and sentence of the petitioner-accused. Hence, the instant revision petition.
5. The learned counsel for the petitioner-accused contended that the house from where the alleged recovery was made by the police, was not occupied exclusively by the petitioner-accused but other inmates i.e. Parents, brothers and sisters, uncles and their children were also residing in the same house. It shows that the house was in joint possession and it cannot be held that the Arms and ammunitions were possessed by the petitioner-accused. It was the duty of the prosecution to establish the alleged recovery from the exclusive possession of the petitioner- accused. The learned counsel further contended that the police has associated no private witness while conducting the raid and recovery. Moreso, neither the recovered articles nor the Arms Expert report were exhibited before the court. He further argued that occurrence took place on 9-8-2009 whereas the incriminating articles were sent to F.S.L on 2-12-2009 and also that the incriminating articles were not sealed on the spot. Some unknown person given his opinion about the working condition of the Arms vide report dated 2-12-2009. This report was not made by an authorized person as it is not ascertainable from the perusal of the said report. His last leg of argument was that the prosecution story is fake and fictitious and is not supported by cogent and convincing evidence; therefore, the conviction and sentence awarded to the petitioner-accused is not sustainable.
6. As against that, the learned D.A.-G. Supported the judgments of both the Courts below and contended that the prosecution has successfully proved the case against the petitioner-accused by producing Investigating Officer and the witness of recovery, F.S.L report, thus, the conviction and sentence awarded to the petitioner- accused is quite legal and calls for no interference.
7. I have considered the above submissions and carefully perused the record.
8. The scanning of entire evidence reveals that the incriminating articles were allegedly recovered from the house which is not exclusively possessed by the petitioner-accused but jointly possessed by other inmates i.e. His parents, brothers and sisters, uncles and their children. It is astonishing to note that at the time of recovery proceedings, the father of the petitioner was present at the time of recovery and the I.O. Stated B that he had taken the permission from the father of the petitioner to conduct the search of the house. But here it is equally important to note that I.O. Has raided the house without any search warrant, thus, shown the recovery of afore- stated articles. It is not proved on the record that the room from where the recovery made was occupied by the petitioner-accused. The Investigating. Officer admitted that he had not been apprised by anybody that the same room is in possession of the petitioner-accused. He has not denied that the other inmates of the house were not residing there at the relevant time. It is astonishing to note that in the statement of Investigating Officer the cartridges and other Arms and ammunition were lying on a cot inside a room and were not concealed. He further admitted that the recovered articles were not packed and sealed on the spot and were brought in same condition to the police station. He admitted that he himself is the complainant and also investigated the case. He stated that the witnesses of the prosecution are his subordinate staff. Muhammad Sherin Khan, S.-I. Was examined as P.W.3 who stated in his cross-examination that the house of the petitioner-accused was consisting of three rooms. He further stated that the room of the petitioner-accused was not pointed out by any person. Likewise, no private person associated with them. It is also worthwhile to note that the witness stated that Arms and ammunition recovered from room of the petitioner- accused and all the articles were kept hanging on c the wall. He further stated that on the spot the articles were not packed and sealed, brought to the police station in the same condition. He further stated that at the time of recovery, some other people were also present there. This witness has not seen the proceedings.
9. The above referred evidence collected by the prosecution is not sufficient to connect the petitioner-accused with the offence, because it is lacking on the record that it was the petitioner- accused from whose possession the recovery was effected as it is admitted in the evidence that the house was jointly owned by all the inmates. How anyone of them can be implicated in the instant case. The above mentioned ocular evidence is full of contradictions, improvements and omissions. Such sort of scanty and sketchy evidence is never considered as the valid piece of evidence to warrant the conviction of an accused. The prosecution has failed to associate the independent witness belonging to same locality at the time when they raided the house. However, they had prior information on which they proceeded to the said house. In this way, the police has violated the mandatory provision of section 103, Cr.P.C. By not making any efforts for procuring the presence of the private witnesses on the spot at the time of recovery. This violation is also fatal to the prosecution case Reliance placed on the case Abdul Ghani v. State (2000 MLD 1075) wherein it has been held that:- "Admittedly the place of recovery is an open place. It cannot be said that it was a place exclusively in possession of the appellant. Kalashnikov has not been sealed at the spot. There is no entry number which the police party has left the police station along with accused to the pointed place where the recovery is said to have been effected; there is no evidence with the prosecution proving that the crime weapon has been sent to the Ballistic expert; no independent Mashir has been associated on the factum of recovery."
Reliance is also placed on the case titled Mohsin Atta v. The State (PLD 1998 Lahore 401) wherein it has been held that:- "As such without the search warrant the Police could not enter the house of Mohsin Atta appellant and it was a case of transgression of authority on the part of the Police as has become usual in the Province of Punjab for the last about two decades ignoring the fact that the Article 14 of the Constitution of Islamic Republic of Pakistan, 1973 provides that the dignity of man, and subject to law the privacy of home, shall be available."
10. Both the learned Courts below have not adverted to the moot questions involved in the case i.e Non-compliance of the provisions of section 103, Cr.P.C. And the joint possession of the house wherefrom the recovery was made. Section 103, Cr.P.C. Applies with full force when search is to be made of place which is in an inhabited locality. In other words, it can be said that section 103, Cr.P.0 is relatable to the place and not to the person. If place is known where search is to be made and that place is situated in a locality which is inhabited by the people, then it is necessary to join two or more respectable persons from that locality to witness the search. Reliance placed 'on case titled Muhammad Azam. v. The State (PLD 1996 SC 67).
11. For the reasons mentioned above, I am of the view that both the learned Courts below have erred in awarding conviction and sentence to the petitioner-appellant. The revision petition is, therefore, accepted, the impugned judgments of conviction and sentence are set aside and the petitioner-accused is acquitted of the charges levelled against him. He shall be released forthwith if not required in any other case.