1. ' SALEEM AKHTAR, J.--Ghulam Kazim Soomro was posted as Sub-Inspector in CIA at Karachi when the appellant who had been arrested earlier by Inspector Maqbool Hussain in some other offence was entrusted to him for interrogation. On 25-10-1988 during interrogation the appellant pointed out to a place to him and led the police party to barrack No,53 in Jut Lands Lines near a wood cutting machine. The Sub-Inspector alongwith two mashirs Waqar and Muhammad Aslam and Sub-Inspector Fazal Illahi reached that place. From under the stock of firewood the appellant took out two Klashnikoves and two Klashnikov magazines containing 20 cartridges each. They were seized in the presence of mashirs and police party and mashirnama was prepared. The arms and ammunition were sealed and thereafter F.I.R. Was recorded and sent to Brigade Police Station for investigation as the offence was committed. In its jurisdiction. The arms and ammunition in sealed packets and the finger-prints of the appellant obtained by Sub-Inspector CIA were also forwarded to the fingerprint expert. After investigation the appellant was prosecuted and charged with offence punishable under section 13-B(h) of the Pakistan Arms Ordinance 1965.
2. ' The prosecution examined P.W.1 who had recovered arms and ammunitions, P.W.3 who had acted as mashir and seizure memo. Was produced to prove recovery. P.W.2 Ghulam Abbas Jafferi was examined to prove that the finger-prints of the accused matched with finger-prints on the Klashnikoves. P.W.4 Maqbool Hussain to whom investigatidn was entrusted was examined and report of the ballistic expert was produced. The appellant denied the charges and stated that the police has foisted the arms upon him and made him to apply his thumb impression and finger- prints on the arms. On a question put to the appellant by the learned trial Court he stated that he has no licence for the arms and ammunitions. He however stated that he would examine the owner of the wood cutting machine as defence witness. Accordingly Javed Qureshi D.W.1 was examined.
3. The learned trial Court convicted the appellant in the following manner:-- "The upshot of the above discussion is that I convict the accused under section 13-B(b) of the Pakistan Arms Ordinance, 1965 (which section was added by Ordinance XVI of 1988, promulgated by the President on 13-10-1988). The said section provides for imprisonment upto fourteen years (with minimum imprisonment of seven years) plus fine and confiscation of property. As this appears to be the first conviction under section 13-B of the Pakistan Arms Ordinance, I would sentence the accused to R.I. For seven years, which is the minimum sentence prescribed for the said offence. I would also impose on him a fine of Rs, ten thousand, in default of payment of which he would undergo further R.I. For one year. I also order the forfeiture to Government of all property of the accused, as provided under the said section."
4. ' Mr. Afzal Mahmood, the learned counsel for the appellant has contended that recovery of arms and ammunition as alleged by the prosecution has not been proved as mashir was not resident of the locality and that the search was contrary to the section 103 of the Cr.P.C. Mr. Jalaluddin Baloch, the learned counsel for the State contended that section 103, Cr.P.C. Is not applicable as no place was searched and the recovery was made on the pointation of the appellant who led the police party to that place and that the mashir is a respectable person which has not been challenged.
5. The learned counsel for the appellant has thus challenged recovery mainly on the ground that Muhammad Aslam P.W.3 was procured by the Police to act as mashir and is not a resident of the locality. P.W.3 stated that on 25-10-1988 he had gone to C.I.A. Office to recover some money from a person named Fayaz who had taken a canteen on contract in the C.I.A. Office. He had met him at CIA Centre. He saw a police man boarding a vehicle going out with the appellant who was handcuffed, a private person with a beard and the police party. The Police Officer requested him to accompany them as they were going to recover arms at the pointation of the appellant. The appellant led them to Jut Land Lines where there was a wood-cutting machine. He pointed out to the stack of firewood from where he took out two Klashnikoves and two magazines containing 20 rounds each of which were concealed there. In cross-examination he stated that as he was not allowed to enter C.I.A. Office he had requested a policeman to locate Fayaz. After being located he asked him to sit in canteen and take tea. As the capacity of P.W.3 has been challenged to act as mashir it has first to be tested whether he is an independent and proper person who could act as a mashir as provided by law. In this regard reference has been made to section 103, Cr.P.C. The learned trial Court while referring to section 103 has observed that it provides for search under Chapter VII in the presence of two respectable persons of the locality and as the said chapter applies to search of houses, closed places and of persons wrongfully confined it is not applicable to production of property by an accused or other person, where no search of a house or closed place takes place. In this regard reliance has been placed on Abdul Rashid v. State PLD:1975 Kar.
6. 92 approved in Ballia and others v. The State 1985 SCMR 854. The learned trial Court also referred to Nasrullah and another v. State 1977 P.Cr.L.J. 132 and Rahmat v. State PLD 1976 Lah.
7. 1444. The question thus arises whether section 103 in strict terms or in principle applies to recoveries made by the police officer during investigation of a crime. Besides the judgments referred above we have noted several judgments of the Supreme Court in which observations have been made on recoveries and search during investigation of a crime with reference to Section 103, Cr.P.C. In Muhammad Shafi and others v. The State PLD 1967 SC 167 Karim Bux a disinterested witness, who did not belong to the caste of the parties but living in the neighbourhood knew all the persons involved was passing down the main road when the assault commenced. He saw the incident and remained on the spot until the arrival of the Police and thereafter witnessed the arrest of accused persons and recovery of dangs, dagger and revolver from the possession of one accused. In these circumstances it was observed as follows: "This witness also saw the recoveries made by the Police from the courtyard of the complainants' house including blood-stained earth from two places, and two empty revolver cartridges, which had been left on the spot. Ordinarily, independent witnesses are sought for verification of such recoveries, but in this case no disinterested person who had seen the occurrence or the recoveries would come forward for the purpose. The reason is obvious. The recoveries were being made while the sensation of this terrifying occurrence had not subsided, and men were naturally fearful of becoming involved in so serious an affair."
8. ' In Muhammad Khan. v. Dost Muhammad PLD 1975 SC 607 the scene.Of offence was an open place where annual Mela (fair) bullock race was held. The accused were prosecuted under sections 148, 302/149, 307/149 and 436/149, P.P.C. When recovery of incriminating articles was challenged it was observed as follows:-- "The recovery memoranda Exhs. P.J., P.K., P.L., P.M., P.N., P.O., P.Q. And P.H. Had been duly proved by the evidence of the S.I.P. (P.W.16). These also bear the signatures of two attesting witnesses namely Sarwar ' The police officer got two witnesses of the public and recovered one bundle containing 1 Kg.
9. Heroin from in between the two front seats where both the accused were sitting. In these circumstances recovery was challenged for noncompliance with section 103, Cr.P.C. As the witnesses should not only be of public but necessarily to be of the locality. It was observed as follows:-- "We find that a witness namely, Amir Ahmed picked up from the public, on receipt of the information coupled with the statement of the Police Officer, was sufficient to establish the recovery, if no other fault is found therein. The Courts have found none and we do not consider any legal ground available to challenge it on the ground of non-compliance or improper compliance of section 103 of the Code of Criminal Procedure. Our decisions in Muhammad Shah v. State PLD 1984 SC 278; Saeed Ahmad Hamdani v. Muhammad Irfan and others PLD 1986 SC 690; Malik Aman v. State 1986 SCM R 17 and Sultan and others v. State 1987 SCM R 1177 lay down the law on the subject.
10. ' In Abdul Rashid v. State PLD 1975 Kar. 92 on spy information the accused was apprehended on a busy road from whose possession revolver and live cartridges were recovered. Relying upon section 103, Cr.P.C. The appellant challenged recovery and it was observed as follows: "I would, nevertheless, agree thit the purpose of section 103, Cr.P.C. Being to ensure that the testimony given in Court in regard to the result of a search should not depend upon the police officers alone but also upon the evidence of independent persons and that all possibility of fraud in the case of the search be minimised by the availability of independent persons, the principle underlying this section if not the actual letter of it may well be insisted upon in such a case. Now it is true that the witnesses who have signed the mashirnama are not persons resident in the locality.
11. Regard being had to the purpose of the section I think the emphasis is upon the requirement that the witnesses be respectable rather than that they be inhabitants of the locality. In a case like the present where the incident took place in a very busy and crowded locality there would be hundreds of persons who, although not inhabitants of the locality, are yet present at the time lawfully. I would construe the language of the section as requiring rather that the police officer should obtain the assistance of persons who have not been called for the purpose and from the locality than that he should first ensure that they lived in the locality. The purpose of the section would be entirely violated, I think, if the police officer were to collect with himself prior to the seizure, witnesses for the purposes of witnessing the occurrence even though they be actually inhabitants of the locality. It suffices, I think, that they should be neither persons made available for the purpose nor such as are unable to explain why they were present. It is nobody's case that they have been specially accompanying the police officers for the purpose and no question, whatever, has been put to them in cross-examination to suggest either that they were not respectable or that they had no business to be present at the scene."
12. ' In PLD 1988 Kar. 409 State v. Abba Ali Shah following observation was made: "It is well settled that interested witnesses cannot be relied upon for proving recovery. The witnesses should be from the locality but in the present case all the three witnesses namely Muhammad Naim, Nawaz and Gulab Khan are not from the locality."
13. ' A perusal of the aforestated authorities and a catena of judgments of various High Courts which we have not quoted here clearly lay down that Section 103 Cr.P.C. Is to be applied to recovery, search and arrest made during investigation of a crime. It has been termed as mandatory but not absolute and its non-compliance in certain circumstances will not render search and recovery illegal. However, where during investigation of a crime recovery is made from any inhabited locality compliance with section 103 must be made. It cannot be ignored or brushed aside on the whims and caprices of the Investigating Officer except on well founded grounds and in exceptional cases.
14. If recovery has been made in contravention of section 103, it is the duty of the prosecution to explain it and give valid and reasonable explanation for such digression. Recovery is an important piece of evidence which is to be proved by disinterested, independent and respectable witnesses.
15. Such witnesses should be of the locality if the circumstances of the case permit. Section 103 embodies rule of prudence and justice. It is intended to eliminate and guard against 'chicanery' and 'concoction', to minimise manipulation and false implication. It is for these reasons that there is a consensus in the Superior Courts that compliance with section 103 should not be bypassed nor that its applicability he restricted to proceedings under Chapter VII only. The principles of section 103 have been applied and practised during investigation in crimes for so long and with such regularity and force that any attempt to restrict it to proceedings under Chapter VII only will unsettle the settled law.
16. ' The provisions of Chapter VII make it clear that they relate to the search of any place but it cannot be restricted only to house or a closed place, it can be an open place, open area, a playground, field or garden from where recovery can be made for which search is conducted. Although in strict sense the provisions of section 103 are restricted to searches under Chapter VII of Cr.P.C. It has become a practice to apply it to all recoveries made by the Police Officers while investigating any crime. The rules of justice enunciated by section 103 are so embedded in our criminal jurisprudence and so universally accepted that in all criminal cases two mashirs are always cited for recovery and reliance is placed on these witnesses in the ordinary course provided they are independent, respectable and inhabitants of the locality. The residence of the mashirs becomes relevant depending on the facts of the case. The emphasis should be on respectability, independence and impartiality. If the recovery is to be made on public thoroughfare, a bus stand or similar public places the witnesses picked up by the police from the road can be proper witnesses of recovery depending upon the facts and circumstances of the case. However, in order to ensure proper investigation and clear proof preference should he given to the witnesses of the locality particularly witnesses who are respectable. Witnesses procured by the police though respectable lose credibility. Where witnesses are not of the locality the Court should cautiously examine their statements.
17. ' Now in the light of the above principles we will examine the statements of prosecution witnesses to see whether recovery has been proved beyond reasonable doubt. P.W.3 is the Mashir. He was present in CIA office when P.W.1 proceeded to recover the arms and ammunition. He has offered explanation for his presence there. This witness had gone to CIA office for his own work namely recovery of loan from a canteen contractor who was running canteen in that office. He was not allowed to enter the office and that is why he sought the help of a policeman to locate the contractor. This shows that the CIA office is a restricted area. He was however allowed to sit in canteen and take tea till such time the police party proceeded to recover the arm. In the circumstances as Mashir had gone to CIA office possibility of his seeking assistance of CIA officials for recovery of loan cannot he ruled out. He is a transporter and running two trucks. Mr. Afzal Mahmood, the learned counsel for the appellant contended that this fact itself adversely reflects upon the respectability of the mashir. Being a transporter does not mean that he is not a respectable man. However, the possibility that being a transporter he may be under the influence of the Police Officials cannot be ruled out. He had gone to C.I.A. Office at 7 or 7.15 p.m. But remained there for one hour till he was picked up by P.W.1. In his statement P.W.1 stated that he picked up two Mashirs from outside his office who had witnessed the recovery. P.W.3 does not speak of any other Mashir. The fact that P.W.1 had picked up mashirs and taken them to the place of vardat clearly proves that he had procured these persons prior to recovery to witness the occurrence. This mode of witnessing the recovery will he improper even if such collected persons are residents of the locality. According to P.W.1 when he prepared Mashirnama some persons were standing outside the saw Machine. However, he did not request any one of them to act as Mashir. P.W.1 has offered an explanation that in his experience persons of the locality do not come forward to act as witness.
18. He therefore picked up two persons while proceeding for recovery. The explanation of P.W.1 is presumptive and on the assumption that no person from the locality would be available to act as mashir and therefore be procured and carried the mashirs with him. The other mashir Waqar has not been examined therefore we are unable to comment upon the independence or respectability of that mashir. P.W.3 is the solitary witness for recovery and in view of the aforestated reasons his testimony is tainted with incredibility and cannot be believed. Where the case of the prosection depends entirely on recovery of arms and ammunition care should be taken by Court to scrutinise the statement of the witness for recovery with caution and the prosecution should also take care to produce independent and reliable witnesses to prove the recovery. The evidence of I.O. Itself cannot be sufficient for the purposes of conviction. His solitary statement in such circumstances when he had procured the witnesses to act as mashir becomes very doubtful and cannot be relied upon. Reference can be made to State v. Abba All Shah PLD 1988 Kar.
19. 409.
20. ' The finger-print expert has certified that the finger-prints on the Klashnikoves match with the finger-prints of the appellant. It is the case of the prosecution that the appellant had taken out two Klashnikoves from under the stock of the wood. Therefore before sending it to the finger-print expert the appellant had handled the Klashinkoves in the presence of the I.O. And consequently the guns would have borne finger-prints of the appellant. This evidence therefore cannot prove that before recovery of these Klashnikoves the appellant had handled them. The appellant has stated that P.W.1 had beaten him and had made him to put his finger-prints on the Klashnikoves. In any event as we have disbelieved recovery the evidence of finger-print expert is of no material importance.
21. ' Mr. Jalaluddin Baloch, the learned counsel has contended that the mashirmana was prepared on the spot and proper explanation has been given for non-availability of the mashirs of the locality and no motive has been alleged against Investigating Officer therefore the conviction should be maintained. We have already dealt with these aspects of the case and need not elaborate further.
22. Suffice to say that in the absence of any independent and reliable evidence of recovery the statement of P.W.1 in the face of his conduct in procuring Mashirs prior to recovery is not sufficient to convict the appellant.
23. ' Mr. Afzal Mahmood, the learned counsel for the appellant has contended that the appellant was charged under section 13-B(b) of the Pakistan Arms Ordinance but he has been convicted under section 13-A as minimum punishment awarded to him in seven years and also forfeiture of the property. The contention seems to be correct and it is a mistake on the part of the learned trial Court to pronounce sentence under section 13-A instead of section 13-B. However as we have held that the recovery has not been proved we are not inclined to convict the appellant for the offence, charged. The learned counsel has pointed out that in his evidence P.W.1 has stated that the appellant has been prosecuted in many criminal cases and contended that it should not have been recorded as the appellant has been acquitted in all those criminal cases. He had shown us certified copies of those judgments but this aspect of the case is not relevant because the conviction has not been based on it.
24. ' We therefore, allow the appeal and acquit the appellant. He shall be set free unless required in any other case.